Volume 61 — Oregon Reports

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice McBride. This is a suit by the North American Securities Co. against Leonard Cole to enjoin defendant from prosecuting an action at law; the same being the case of Leonard Cole v. Willow River Land & Irrigation Co., 60 Or. 594 (118 Pac. 1030), decided at this date. The facts out of which that litigation arose preface our opinion in that case.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice Burnett. This is a proceeding by George R. Hart against Martin V. Prather originating in the county court of Malheur County on the contest of a will. When the decision was rendered there, oral notice of appeal was given by the defendant, and the clerk.was directed to prepare a transcript.

From Marion: William Galloway, Judge. This is a suit by Eber D. Mossie against Mary Cyrus to enforce the specific performance of an agreement for the sale of real property. There was a decree in the lower court for defendant and plaintiff appeals.

<p>Chattel Mortgages — Breach of Condition — Replevin by Mortgagee.</p> <p>1. A hop grower contracted to sell her crop at a specified rate per pound, and gave a chattel mortgage on the crop to secure any advances by the purchaser under the contract, and any damage to him by breach of the contract by the grower. The mortgage provided that it should be foreclosed in the manner provided by law. Section 422, L. O. L., provides that a mortgage lien shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured by a suit. Section 7411 provides that on breach of the conditions of a chattel mortgage it may be foreclosed in the manner therein provided and not otherwise. Section 7410 provides that on breach Of the condition of a chattel mortgage, the mortgagee shall be entitled to the immediate possession, and if the possession is not delivered on demand, he may recover possession as provided by Code Civ. Proc. tit. 4, c. 2 (Sections 283-294, L. O. L.), which chapter relates to the recovery of possession of personal property, and provides that during pendency of the action the property may be delivered to plaintiff upon a writ, commonly known as the writ of replevin. Held,, that, on breach of the contract with the hop grower, the purchaser could maintain replevin to recover the hops, although he might have brought suit to foreclose the mortgage, making parties defendant of all who claimed to have any interest in the hops.</p> <p>Chattel Mortgages — Replevin—Form op Judgment.'</p> <p>2. Section 198, L. O. L., provides that in an actipn to recover possession of personal property, judgment for plaintiffs may be given for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention thereof. Held that, where a mortgagee brings replevin to recover possession of mortgaged hops because of condition broken by the mortgagor, he can recover the property, or in case recovery cannot be had, he is entitled to judgment for the value of his property, which value is measured by the amount which would make him whole for what he has suffered by the breach of the conditions of mortgage.</p> <p>Chattel Mortgages — Validity—Mortgage to Secure Payment of Damages. •</p> <p>3. A mortgage on a crop of hops given by the grower to the purchaser, who has agreed to make advances on the crop, to secure the payment of the advancer and damages which would result from a breach of the contract by the grower, is valid.</p> <p>Chattel Mortgages — Construction—Amount Secured.</p> <p>4. A hop grower sold her crop and gave a mortgage thereon to the purchaser to secure advances and damages which might result from the grower’s breach of contract. Held, on breach of the contract by the grower by sale of the hops to another person, that the amount secured by the mortgage consisted of the unpaid advances and the difference between the market value of the hops and the contract price.</p>

<p>Judgment — Collateral Attack — Defective Service.</p> <p>1. In collaterally attacking a decree, defects in service to be available must render it absolutely void, because of total absence of notice.</p> <p>Process — Service by Publication — Affidavit for Order.</p> <p>2. The statute (D. O. D. § 56) providing for service on a nonresident defendant by publication, not providing that the affidavit for the order shall state his post office address, the necessity therefor is not jurisdictional.</p> <p>Process — Service by Publication — Mailing Summons and Complaint.</p> <p>3. It is jurisdictional that the summons and complaint be mailed to a nonresident defendant at his post office address as directed pursuant to the statute (L. O. L. § 57) in the order for publication.</p> <p>Judgment — Collateral Attack — Defective Service.</p> <p>4. On collateral attack on a decree for defective service on nonresident defendants because their post office address was incorrectly stated in the affidavit for service which contained all facts made jurisdictional by statute, it is sufficient to sustain it that the court in ordering service found, and directed mailing to, their correct address, and that the mailing was done accordingly.</p> <p>Judgment — Collateral Attack — Record—Jurisdictional Facts.</p> <p>5. Though the manner in which jurisdictional facts are disclosed in the record may be irregular and defective, they cannot be questioned in proceedings collaterally attacking a decree.</p> <p>Process — Service by Publication — Affidavit—Correction.</p> <p>6. If, after filing the affidavit for service by publication, it is ascertained that defendant’s post office address has been changed, or that it was erroneously stated in the affidavit, it may be corrected by an additional showing.</p> <p>Judgment — Collateral Attack — Defective Service.</p> <p>7. If there is actually some notice to defendant, it is sufficient on collateral attack, and irregularity, or defective service, or lack of compliance with the statute renders the judgment merely voidable.</p>

From Multnomah: JOHN B. CLELAND, Judge. Statement by Mr. Justice Burnett. This is an action by H. M. Friendly and M. S. Friendly, purchasers in an executory contract for the sale of land, against G. C. Ruff and Fanny Ruff to recover damages for breach by the latter of the contract, on the ground that they would not convey to the plaintiffs the fee simple estate as agreed, and could not, on account of a defect in their title.

From Multnomah: John B. Cleland, Judge. Statement by Me. Justice Bean. This is an action by W. H. Wehrung against the Portland Country Club and Live Stock Association, a corporation, to recover for services performed by plaintiff for defendant. The cause was tried before a jury, and a verdict rendered in favor of plaintiff. From a judgment entered thereon, defendant appeals.

From Marion: George H. Burnett, Judge. This is an action by J. W. Meyer against T. A. Livesley and John J. Roberts, partners, doing business under the firm name of and style of T. A. Livesly & Company. From a judgment in favor . of plaintiff, defendants appeal.

<p>From Marion: George H. Burnett, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by L. O. Hillyard and F. D. Raforth, partners, doing business under the firm name and style of Burglar Proof Lock Co., against J. A. Hewitt, to recover the price of a consignment of locks furnished to defendant, upon an alleged written contract or order for their purchase. Defendant answered by a general denial, and for a further defense alleged that in June, 1909, at Salem, Oregon, plaintiffs agreed to appoint, by a properly executed written instrument, defendant as their general agent and salesman, with the exclusive right to sell, in Marion County, Oregon, plaintiffs’ burglar proof window locks; that it was further agreed and understood that plaintiffs would ship by freight from Dubuque, Iowa, a quantity of the window locks to defendant at Salem, to be sold by him as their agent; that he should receive 40 cents, as commission, for each lock sold; that the sale price of each lock should be $1; that the balance of 60 cents on each sale should be paid to plaintiffs; that until the locks were sold and disposed of by defendant the title to the entire shipment should remain in plaintiffs; that in case defendant should fail to sell the same, or any part thereof, he should return them to plaintiffs, by freight, at Dubuque, Iowa, defendant to pay the freight on such shipment from Dubuque to Salem, and in case the goods were returned plaintiffs would pay the freight from Salem to Dubuque; that about July 6, 1909, plaintiffs shipped to defendant four gross of window locks, and defendant paid the freight thereon, took possession of the same, and in good faith attempted to sell them according to the agreement; that he was unable to make any sales; that about August 27, 1909, plaintiffs notified him that they would not be longer bound to the agreement, and refused to perform their part of the agreement; that thereupon defendant duly returned, by freight, to plaintiffs at Dubuque, all the window locks; and that defendant has performed all the terms and conditions of the agreement upon his part.</p> <p>Plaintiffs replied, denying the new matter in the answer, and set out in full the alleged contract or order upon which the goods were furnished, which is as follows:</p> <p>“Order No. 40. 6 — 30—1909.</p> <p>Burglar Proof Lock Company.</p> <p>“Ship J. A. Hewitt of Salem, Oregon, street number, 1740 Court St., via S. P. Ship at once. Terms: 60 days net or 2 per cent in 10 days. To be paid at Dubuque, Iowa. Business, Real Estate.</p> <p>3 gross copper oxidized (at $86.40 per gross)....$259.20.</p> <p>i/2 gross dull brass (at $86.40 per gross).......... 43.20</p> <p>gross nickel-plated (at $86.40 per gross)...... 43.20</p> <p>$345.60</p> <p>“He owns property: 1 model. 1 set plates.</p> <p>“For reference, Ladd & Bush Bank, or any bank here.</p> <p>“This order not subject to countermand. All goods sold f. o. b. Dubuque. It is understood and agreed by the purchaser of these goods that the same cannot be returned.</p> <p>“Purchaser, J. A. Hewitt. Salesman, E. 7-6-09.”</p> <p>The reply further alleged that plaintiffs’ agent, F. C. Hillyard, who took the order, had no authority to assign territory, appoint subagents, or make any other agreement binding upon plaintiffs, other than for the outright sale and delivery of merchandise.</p> <p>Upon the trial plaintiffs called defendant as a witness, and proved by him the execution of the order. The testimony of defendant tended to show that at the date of the signature of the order an agent of plaintiffs visited his place of business, and said he was establishing agencies for the sale of plaintiffs’ goods, and wanted somebody to take the agency for Marion County. He proposed to establish the agencies, giving exclusive territory, so that no one else would have a right to sell in that territory. Under these conditions, defendant agreed to sign the order, which was filled out by the agent. He testifies that the agent was sitting at a table opposite defendant, and passed the order over to him to sign, at the same time having his hand on the upper end of the paper, and when defendant affixed his signature the agent took the paper and started to leave the room; that as he was passing out through the door defendant inquired about the assignment of territory, and the agent answered “that he had no right to assign that territory, but that the company would assign it when the goods were sent.” When the goods came, there was no assignment, and plaintiffs never made such assignment at any time. Defendant thereupon reshipped the goods to plaintiffs, refusing to pay for them.</p>

<p>Trial — Responsiveness of Questions — Remedy for Unresponsive Answers.</p> <p>1. If a question does not .reasonably indicate that the evidence desired is objectionable and the answer is deemed improper, the remedy is to move to strike it, so that in an employe’s action for personal injuries by falling through a roof on which plaintiff was walking, in which plaintiff answered the question, “After you took the second step, explain what you did,” by stating that a moment after the fall he inquired of the superintendent, “What kind of a trap this was to set for a man?” defendant should move to strike the answer as not responsive, instead of objecting that it was not a part of the res gestae.</p> <p>Evidence — Res Gestae.</p> <p>2. Plaintiff was injured by falling through the roof of a shed over which he was walking, and in a second or two after he fell, and as soon as he could speak, he asked his foreman, “What kind of a trap this was to set for a man?” Held that the remark was admissible as res gestae.</p> <p>Master and Servant — Fellow Servants.</p> <p>3. Plaintiff was injured by falling through the roof of a shed while walking over it under the order of another employe to get material from another building. The other employe had charge of 25 or 30 men, including plaintiff, whom he employed and discharged, and about a week before the accident had supervised the removal of a building, against which one side of the shed had rested, thereby weakening the roof of the shed and making it unsafe. Held, that the other employe was not plaintiff's fellow servant in directing'him to walk across the shed roof.</p> <p>Master and Servant — Safe Place of Work.</p> <p>4. An employer is required to furnish servants with a reasonably safe place of work.</p> <p>Master and Servant — Master's Duty — Inspection of Place of Work.</p> <p>5. A master is required to inspect the place of work from time to time and keep it in a reasonably safe condition; any defects therein being unknown to the employes.</p> <p>Master and Servant — Master's . Liability — Negligence of Vice Principal.</p> <p>6. An employer is responsible for the negligence of an employe to whom he delegated the duty of investigating the condition of the * place of work and keeping it reasonably safe.</p> <p>Master and Servant — Negligence—Defective Buildings.</p> <p>7. Plaintiff was injured while walking over the roof of a shed to reach another building to procure lumber pursuant to his foreman’s order by falling through the roof owing to its weakened condition, resulting from the recent removal by the foreman of another building to which the roof of the shed had been fastened, and of which -dangerous condition the foreman ought to have known. Plaintiff had been but recently employed and reasonably supposed the roof to be safe. Held, that the foreman’s failure to warn plaintiff of the danger in going over the roof was actionable negligence.</p> <p>Master and Servant — Contributory Negligence.</p> <p>8. An employe is not negligent in selecting one of two obviously safe ways of passage to reach material, though the one selected proved dangerous.</p>

<p>Waters — Prior Appropriation — Evidence.</p> <p>1. In an action to determine conflicting water rights, evidence held to warrant a finding that defendant had conducted water from the stream, through a slough, prior to plaintiff’s appropriation, and that defendant’s right was therefore prior to that of plaintiff.</p> <p>Waters — Appropriation—Priority—Amount.</p> <p>2. The amount of water that may be taken by a prior appropriator for irrigation depends on the number of acres of irrigable land susceptible of cultivation, the degree of sterility of the premises, the most profitable crops that can be raised by artificial application of moisture, and the quantity of water necessary to produce the harvest by careful husbandry.</p> <p>Waters — Prior Appropriation. — Amount.</p> <p>3. In a suit to determine water rights, evidence held to show that defendant, under a prior appropriation, was only entitled to 100 inches of water as against plaintiff.</p>

From Douglas: Lawrence T. Harris, Judge. Statement by Mr. Justice Moore. This is a suit by Frank G. Micelli, Joseph Micelli, S. Hamilton, W. S. Hamilton, L. H. Hamilton and J. F. Templin against Frank Andrus to enjoin an alleged trespass on real property and to recover damages for injury thereto.

From Baker: William Smith, Judge. Statement by Mr. Justice Bean. The defendant, George Setsor, was indicted for the crime of murder in the first degree for the killing of one John Thomas. He pleaded not guilty, and upon trial by a jury was convicted and sentenced to a term of from one to fifteen years in the penitentiary, with a fine of $1,000, for manslaughter, from which judgment he appeals.

From Linn: William Galloway, Judge. Statement by Mr. Justice Bean. The county of Linn is a municipal coporation, and the Calapooia Lumber Company a private corporation, organized under the laws of the State of Oregon. The Calapooia River in Linn County, is a mountain stream running in a westerly direction upon which the defendant has a lumber mill.

From Jackson: Frank M. Calkins, Judge. On Motion to Dismiss. Statement by Mr. Justice McBride. This is an action by Myrtle Gardner, administratrix of Walter C. Gardner, deceased, against the Pacific & Eastern Railway, to recover for the death of Walter C. Gardner in a railway accident. A jury trial was had on May 18, 1911. The jury returned a verdict against defendant for $7,500.

<p>Municipal Corporations — Officers—Statutory Provisions — Contract of Employment.</p> <p>1. Portland City Charter, § 118%, empowered the city to construct a bridge and to issue bonds therefor to a certain -amount, and by section 304 provided, that the city engineer should keep himself informed of the condition of all public streets, bridges, etc., and that all plans and specifications for the construction therefor should be made by him or under his supervision, and section 305 provided that the city engineer should be the consulting engineer of all boards and commissions authorized by the charter without salary other than that as city engineer. Held, that the city counsel had the power to make a contract of employment with an outside consulting engineer to prepare plans and specifications for the bridge.</p> <p>Municipal Corporations — Charter—Construction of Grant of Powers.</p> <p>2. The grant of an express statutory power carries with it by necessary implication every other power necessary and proper to the execution of the power expressly granted.</p> <p>Municipal Corporations — Officers—Statutory Provisions — Civil Service Regulations.</p> <p>3. The charter of the City of Portland, providing by section 306 that all appointments to and promotions in the subordinate administrative service of the city should be made by a competitive examination, and expressly exempting therefrom the city engineer, was not intended to apply to an outside special consulting engineer employed by the city for the drawing of plans and specifications for the construction of a bridge authorized by section 118% of its charter.</p> <p>Municipal Corporations — Public Improvements — Mode of Doing Work — Injunction.</p> <p>4 .Where the charter of the City of Portland by section 118% authorizes the construction of a bridge and the issuance of bonds therefor for a large amount, the quality of material and ornamentation and the cost thereof are matters resting in the discretion of the executive board of the city council, and its decision as to whether the contract shall be let on a unit plan or by some other method will not be interfered with, in the absence of a showing of fraud or manifest abuse of discretion.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit by Henry Bushnell and Kittie Bushnell against M. T. Dumbeck and John Dumbeck, to compel specific performance of a contract to convey land. Defendants had a decree in the court below, and plaintiffs appeal.</p>

<p>Municipal Corporations — Public Improvements — Property Liable Adjacent Property,</p> <p>1. Salem City Charter (Laws 1899, p. 939) § 43, provides that each lot within the limits of a proposed street improvement shall be liable for the cost of the improvement upon the half of the street in front of and abutting it, and that, where land is not laid off in blocks, the • cost of the improvement shall be assessed to the owner or owners of land lying within 100 feet of the improvement. Section 25 provides that improvements shall be made at the expense of owners of adjacent property. Held, that property in the city is liable to be subjected to an assessment for the improvement of a street, though it does not abut thereon, if it is adjacent.</p> <p>Municipal Corporations — Improvements—Property Liable — Ownership — Subsequent Dedication.</p> <p>2. Though at the time of the initiation of proceedings for the improvement of a street a half of the land sought to be used therefor was the property of a public service company, an abutting owner cannot complain -that the city was without jurisdiction to make the improvement, and that the assessment was void, where the corporation owning the land subsequently made a dedication in writing to the city.</p> <p>Municipal Corporations — Public Improvements — Setting Aside Assessment — Burden op Proof.</p> <p>3. While, under Section 799, subd. 15, L. O. L., which provides that it will be presumed that official duty has been regularly performed, it may not be necessary to allege the performance of such duty, the presumption is not conclusive, and, where to a suit by a property owner to quiet her title against an assessment for an improvemeiit the answer set up the lien of the city upon the property entered upon the lien docket and such allegation was denied by the reply, the existence of the lien became an issue of fact, the burden of proving which was cast upon the city.</p> <p>Municipal Corporations — Public Improvements — Liens—Necessity op Docketing.</p> <p>4. The purpose of entering the lien of a city for street improvements in the lien docket in only to establish the priority of claims to the property and to operate as notice to creditors, purchasers, and incumbrancers, .and the right to recover the assessment does not therefore depend upon the making of the entry at a particular time.</p> <p>Execution — Lien—Entry op Judgment on Lien Docket.</p> <p>5. The levy of an execution creates a lien, though the judgment is not entered on the lien docket.</p> <p>Municipal Corporations — Public Improvements — Lien—Creation— Issue op Warrant.</p> <p>6. Under Salem City Charter (Laws 1899, p. 938) § 38, which provides that a warrant for the collection of an assessment for improvements shall have the force and effect of an execution against real property, an assessment which is regular and valid may he enforced against property by the issue of the warrant, though not entered upon the lien docket.</p>

<p>Bills and Notes — Notice and Demand — Liabilities of Indorser— Indorsement Before Delivery.</p> <p>1. Where a person, other than the maker of a promissory note, writes his name on the back thereof at the time of its execution, he is prima facie a second indorser, and not liable without demand and notice.</p> <p>Bills and Notes — Liabilities on Indorsement — Nonnegotiable Instrument.</p> <p>2. A person indorsing his name on the back of a nonnegotiable instrument is liable as a maker, without demand or notice.</p> <p>Evidence — Parol Evidence — Liabilities on Indorsement.</p> <p>3. Where several parties sign a promissory note as makers, but some of them are sureties only, their true relations may be established by parol as against the payee or holder with knowlege of the facts.</p> <p>Bills and Notes — -Liability of Indorser.</p> <p>4. Where a person writes his name on the back of a note at the time it is issued, for the purpose of procuring credit for the maker, or if the person so signing received a part of the consideration for which the obligation was given, he is regarded as an original promisor.</p> <p>Bills and Notes — -Liability of Indorser — Indorsement After Delivery.</p> <p>5. A person who, after delivery of a negotiable instrument, indorses it at the request of the maker, and by agreement with the payee that the time for the payment will be extended, or for any other leniency, is a guarantor.</p> <p>Bills and Notes — Liability of Indorser.</p> <p>6. A person indorsing a note intended for discount, under an agreement with all parties that his signature will be inoperative until indorsement by the payee, is liable only as a second indorser.</p> <p>Evidence- — Parol Evidence — Liability of Indorser.</p> <p>7. As between the parties to a promissory note, evidence is admissible to show that an irregular indorser’s liability is not what it appears from his signature.</p> <p>Evidence — Parol Evidence — Liability on Note.</p> <p>8. A party who places his name on the face of a note as a maker before delivery cannot, in an action on the instrument, be permitted to show by parol that his liability thereon was in fact as an indorser.</p> <p>Evidence — Parol Evidence — Liability of Joint Promisor.</p> <p>9. The liability of a joint promisor on a negotiable promissory note is not changed to that of an indorser by a letter accompanying the instrument, stating that he had “indorsed” it.</p> <p>Evidence — Parol evidence — Negotiable Instruments Law.</p> <p>10. The negotiable instrument law, Sections 5834-6025, L. O. L., was designed to harmonize the decisions in respect to commercial paper, to give negotiable instruments certainty, and to change the rule of construction as to the liability of accommodation parties who sign as joint makers, so that, under Section 5850, subd. 7, L. O. L., which provides that when an instrument containing the words “I promise to pay” is signed by two or more persons they are deemed jointly and severally liable, and Section 5862, which provides that an accommodation party is liable to a holder for value who knew at the time of taking the instrument that he was only an accommodation party, a signer of a negotiable instrument, who subscribed as a joint maker, is liable thereon, though the payee may have known that he was only an accommodation party, and parol evidence is inadmissible to alter the relation assumed.</p> <p>Bills and Notes — Action—Defense—Belief.</p> <p>11. In an action on a promissory note, a person who appears as a joint maker cannot answer that his name was inadvertently written on the face, rather than as an indorser, as such a matter is a subject of exclusive equity jurisdiction, and should, under Section 390, L. O. L., be raised by a complaint in equity in the nature of a cross-bill to have the alleged mistake corrected.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit by J. P. Graham against C. C. Shay, to cancel a contract for the sale of land and to require defendant to return $1,800 purchase money paid him on the contract.</p> <p>The complaint alleges, in substance, that about January 20, 1907, defendant represented to plaintiff that he was the agent of Edward F. Bertroche, who had a timber claim for sale for $1,600, and that the land on which the timber was located was of such a nature that it could be easily logged, and that there was between 5,000,000 and 6,000,000 feet of timber thereon. Believing and relying on the representations of defendant, plaintiff purchased the land, and received a deed therefor signed by Edward F. Bertroche and wife. Plaintiff believes and charges the fact to be that at the time he purchased the timber land defendant was the owner thereof; he having purchased it from Bertroche for $1,200, and had the deed made directly to plaintiff; that the land is mountainous, rocky and inaccessible, and is of no value; that plaintiff purchased it only for the timber; that in July, 1909, plaintiff discovered, and charges the fact to be, that the representations of defendant were false and untrue, and made for the-purpose of deceiving plaintiff and inducing him to buy the land, or were made with a careless disregard as to whether they were true or false; that the land does not contain 5,000,000 or 6,000,000 feet of timber nor any other amount; that, owing to the misrepresentations of defendant, plaintiff paid to him the sum of $1,600, without any consideration therefor, which amount he still retains; that prior to the commencement of this action plaintiff executed two deeds, one to Bertroche and wife and one to defendant, and tendered them to defendant, for him to choose which one he would accept on payment to plaintiff of $1,600; that defendant refused to accept the deeds or to return the money.</p> <p>Defendant answered, admitting that he represented that the Bertroche claim could be purchased for $1,600, and that plaintiff so purchased and received a deed from Bertroche and wife. He denied that he was at the time the owner of the land or had purchased it from Bertroche, and denied the alleged false representations and any knowledge or information sufficient to form a belief as to the character of the land. The answer further alleged that, at the time plaintiff negotiated the purchase, defendant had no personal knowledge of its character, and was ignorant thereof except from information derived from the owners, and so stated to plaintiff, and that, based upon such information and belief in its truth, he represented and guaranteed to plaintiff, subject to the conditions and limitations set forth in the answer, that the land was what was known as “a fairly good logging proposition,” and that there was from five to six million feet of good timber thereon; but as to whether the representations were in fact untrue, defendant has no knowledge nor information sufficient.to form a belief and therefore denies the same.</p> <p>Defendant, for a further answer, alleges: That on January 20, 1907, Bertroche and wife were the owners of the land in controversy, and that about that date he negotiated a sale from them to plaintiff for $1,600, of which sum defendant received $400 for his services, the remainder being paid to Bertroche. That during the negotiations defendant fairly and fully disclosed to plaintiff that he had never seen the land. That he knew nothing more about it than did plaintiff and that his representations in respect to it were based solely upon information derived from the owners. Thereupon, with full knowledge of defendant’s source of information, plaintiff and defendant entered into a written contract of guaranty, which was as follows:</p> <p>“This agreement, this day made and entered into by and between J. P. Graham, party of the first part, and C. C. Shay, party of the second part, witnesseth: Whereas, the said J. P. Graham is about to purchase for the sum of sixteen hundred ($1,600) dollars from Edward H. Bertroche and wife, the owners thereof, all of the following timber land, to-wit: The E. 14 °f the S. W. 14 of Sec. 6, T. 7 S., R. 4 E., W. M., in Clackamas County, State of Oregon; and whereas, the said C. C. Shay has represented and guaranteed that said land is, what is known as ‘a fairly good logging proposition’ so far as the general character of the land is concerned, and that there is upon said land from five to six million feet of good timber, which said representations of the said C. C. Shay constitute the inducement for the purchase of said timber land by the said J. P. Graham: Now, therefore, in consideration of the premises, it is hereby stipulated and agreed by and between the respective parties hereto that if, within six (6) months from date hereof, it shall be found that said timber land is not ‘a fairly good logging proposition’ so far as the general character of the land is concerned (without reference to location), or if said land does not contain thereon from five to six million feet of good timber, as guaranteed and represented by said C. C. Shay, he, the said C. C. Shay, will purchase said real property from the said J. P. Graham, and pay therefor the sum of sixteen hundred ($1,600.00) dollars with interest thereon at rate of seven per cent (7%) per annum from date hereof. Provided, however, and this agreement is upon condition that the said J. P. Graham shall take all the necessary and proper steps to ascertain and determine whether or not said lands substantially conforms with the representations so made by the said C. C. Shay, and shall, within six (6) months from date hereof, make a demand of the said C. C. Shay for the purchase by him of said land in accordance with this agreement, in case said land shall be found, upon due and proper investigation and examination, to be other than as represented by the said C. C. Shay; provided further, that the said J. P. Graham shall give the said C. C. Shay not less than thirty (30) days’ written notice of his intention to make such demand for the purchase of said land by the said C. C. Shay; provided, also, that in the event of the said C. C. Shay purchasing said land in compliance with this agreement, he shall be allowed until the expiration of six (6) months from date thereof in which to pay the same. But in no event shall the said C. C. Shay be required to purchase said land unless demand therefor be made by the said J. P. Graham before the expiration of said six (6) months. Time is the essence of this contract. As security for the due and faithful performance of this contract on the part of the said C. C. Shay, it is understood and agreed that the said C. C. Shay and Delia I. Shay, his wife, have made a deed conveying to the said J. P. Graham all of lots eleven (1) and twelve (12) in block one (1) Mt. Tabor central tract, in Multnomah County, Oregon, which said deed is hereto attached and made a part of this agreement, it being understood that the real property described in said deed is subject to an unpaid mortgage thereon, upon which there was due and unpaid on January 1, 1909, a balance of fifteen hundred ($1,500.00) dollars, same being payable in installments of fifty ($50.00) dollars each month without interest. It is expressly agreed that this contract, together with said deed, shall be deposited in escrow with a bank in the city of Portland, Oregon, to be designated by the respective parties hereto, and that, in case the said C. C. Shay shall fail or refuse to comply with the terms and conditions of this agreement on or before the expiration of six (6) months from and after the date hereof, then said deed shall be delivered to the said J. P. Graham, and thereupon the said J. P. Graham, the grantee named herein, shall be and become the absolute owner of all the property in said escrow deed, subject however, to the unpaid mortgage thereon, which shall thereafter be paid and satisfied by the said J. P. Graham as such owner. But, in the event that the said J. P. Graham shall fail or neglect to insist upon the due enforcement of this contract against the said C. C. Shay for a period of six (6) months from and after the date hereof, in such case, immediately upon the expiration of such period said escrow deed shall be promptly surrendered to the said C. C. Shay, and all his liability hereunder shall cease and be terminated. It is also agreed by the parties hereto that in case the said C. C. Shay shall purchase said timber land from the said J. P. Graham, in accordance with the terms and conditions of this agreement, the said J. P. Graham shall convey to the said C. C. Shay all of said timber land clear of all incumbrances. In witness whereof, we have hereunto set our hands and seals this 20th day of January, 1908.”</p> <p>That the representations therein contained are the same as those alleged in the complaint, and that they were made as herein set forth and not otherwise. That plaintiff wholly failed and neglected to ascertain^ within six months or for over 18 months whether the land conformed to the representations made by defendant, and failed and neglected to give defendant 30 days’ notice or any notice of his intention to demand that he should purchase the land or to carry out any of the terms of the contract within the period of six months or at all, and that by reason of plaintiff’s default defendant is released from the contract, and from any liability on account of any representations made by him to plaintiff in relation to the land.</p> <p>There was a reply, admitting the execution of the contract of guaranty and repurchase, but otherwise taking issue with the allegations of the answer.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement Per Curiam.</p> <p>In the action by Mary C. Francis against the Mutual Life Insurance Company of New York, a judgment was rendered on the verdict for defendant June 11, 1910. On December 10, 1910, the plaintiff filed her notice of appeal, with proof of service indorsed thereon, and on the 20th of that month filed her undertaking on appeal. On January 6, 1911, a judge of the circuit court in which the cause was tried made an ex parte order allowing the plaintiff till “January 31st” to present her bill of exceptions. Afterwards, on January 30th, the same judge made a further ex parte order allowing the plaintiff five days additional time to present her bill of exceptions. The record sent to this court discloses that the circuit court has prescribed, among others, rule 19 (91 Pac. X), as follows:</p> <p>“Any party to a civil or criminal action may, within thirty days after the entry of final judgment, or after the granting or refusing of a new trial, if a motion for a new trial is filed, prepare and file a bill of exceptions. It shall not be necessary to enter an order in the journal granting time to file a bill of exceptions, unless the court, by special order, extends or shortens the time within which to file it. * * The court, upon being satisfied that the adverse party or his attorney has had due notice thereof, may, on application of either party, grant an extension of time to file a bill of exceptions, or a statement of objections thereto, or fix a time for the settlement thereof, but written notice shall not be required.”</p> <p>The case is here presented upon the motion of the defendant to strike out the bill of exceptions, because, when it was certified by the court below, the time, as provided by the rules of that court, in which said bill might be settled and certified, had long since elapsed.</p>

From Multnomah: John B. Cleland, Judge. This is a suit by Alfred Howard against Max Tettelbaum to reform a written contract for the dissolution of a partnership. From a decree in favor of plaintiff, defendant appeals.

<p>Records — Registration op Titles to Land — Appeal.</p> <p>1. Under Chapter 3, Title 48, L. O. L., providing for the registration of titles to land, and declaring, in Section 7203 thereof, that an appeal may be allowed “if prayed at the time of entering the order or decree” and on like terms as in other suits in equity, an appeal does not lie from a decree unless prayed for at the time of its entry.</p> <p>Appeal and Error — Statutory Remedy.</p> <p>2. An appeal is but a statutory privilege and must be taken in the method prescribed by statute.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice McBride. This is an action by Charles A. Benbow against the James John, a boat, the St. John Transportation Company, and the American Surety Company of New York, to enforce a mechanic’s lien upon a boat — James John —owned by defendant Transportation Company. The case was before this court on a previous appeal and is reported in 56 Or. 554 (108 Pac. 634).

<p>Master and Servant — Contract op Employment — Hospital Fund.</p> <p>1. A contract of employment which fixes the wages of an employee for specified work, and which authorizes the deduction of a specified sum per month for a hospital fund of the employer, maintaining a hospital fund association regulated by by-laws providing that all employees shall be members of the association, and entitled to receive the benefits including free medical attention, creates an obligation on the part of the employer to pay medical expenses incurred by an employee sustaining a personal injury during the employment.</p> <p>Master and Servant — Contract op Employment — Hospital Fund.</p> <p>•2. Where an employer maintaining a hospital fund for its employees to furnish them free medical attention, but not maintaining a hospital, knew of. an injury to an employee when received, and of the painful results thereof, and the employee without giving the employer formal notice of the injury or asking for a physician sought proper medical aid, the employer was liable for the medical expenses incurred.</p>

<p>Intoxicating Liquors — Local Option — Constitutional Provisions.</p> <p>The Constitution of Oregon, Article XI, Section 2, as amended in 1910 (L. O. L. p. xxv), giving cities exclusive control of prohibition and the regulation of the sale of intoxicating liquors, is self-executing and creates cities as the greater unit, with their wards or precincts, if existing, the lesser units, and repeals so much of the local option law as permits voters outside of a city in a county to have a voice in determining the status of the city as to the sale of liquors and a city in a county may hold a local option election under the statutory machinery on the subject.</p>

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is an action by F. W. Leadbetter against L. Pewtherer and W. W. Raymond to recover $1,700 alleged to be due as rent under a lease. On December 3, 1906, plaintiff leased to defendant Pewtherer for a period of three years, from January 1, 1907, certain premises in Portland, known as the “Ohio Hotel,” at the rental of $150 per month for the first six months; $250 per month for the second six months; $350 per month for the second year; and $400 per month for the third year. Pewtherer occupied thereunder until January 12,1908. At that time the defendant Raymond, who had as surety for Pewtherer paid a large sum of money for him for which the creditor held a chattel mortgage on the furniture in the hotel, took possession of the furniture and premises, and Pewtherer surrendered to him. Thereafter Raymond occupied the premises until October, 1909, and paid the rent according to the terms of the lease until March 1, 1909, at which time he complained to Helgestad, a clerk for plaintiff who collected the rent, that the rent was too high and demanded that it be reduced to $200 per month. No agreement with plaintiff to that effect was reached. Each month after March, 1909, until July, he paid $200 and directed that it be applied upon the current month. Plaintiff refused to so apply it and credited it on the back rent. In July, 1909, defendant paid $200 and demanded that it be applied on that month’s rent, and the clerk gave him a receipt in the following words:</p> <p>“Portland, Oregon, 7| 17|’09.</p> <p>“Received from W. W. Raymond two hundred and no one-hundredths dollars for rent on account of Hotel Ohio for the month of July, 1909.</p> <p>“O. L. Price, per M. H.”</p> <p>On that date Price, plaintiff’s agent, by letter duly mailed, notified Raymond that he would not permit the same to be applied that way and that he would hold the $200 subject to Raymond’s disposal. Raymond denies having received that letter. On the trial Pewtherer made default, and judgment was rendered against him. Findings were made and judgment rendered in favor of plaintiff for the amount sued for. Defendant appeals.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Burnett. This is an action by Nick Kovachoff against the St. Johns Lumber Co., a corporation. The facts are stated below.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Burnett. This is an action by Harry H. Cloyes and others against Anthon Eckern, to recover $20,000 as commission said to be due them on an alleged contract with the defendant, which they say they performed, to find for him a purchaser, ready, able, and willing to buy 2,000 shares in a lumbering corporation at the price of $200,000. The complaint is traversed in every material particular.

<p>From Clatsop: James U, Campbell, Judge.</p> <p>This is an action in assumpsit by Sit You Gune, Sit Joe Yiun, Foe Fun, Sit Que, Ho Lee, Sied Hop, Seid Wing, Seid Kee, Toy Sam, Heing and Sit Sang, partners, doing business under the name of Wing Sang Co., against O. W. Hurd doing business under the name of O. W. Hurd Packing Co. There'was a judgment in favor of plaintiff and defendant appeals.</p>

<p>Mechanics' Liens — Claim foe Lien — Time foe Filing — "Completion of Contract."</p> <p>The uncovering by a subcontractor for the plumbing of a building of a sewer pipe for inspection by the city officials, made necessary for want of inspection before the pipe was covered, is not work in the “completion of the contract,” within the statute fiixing the time for filing of a lien claim after the completion of the contract.</p>

From Washington: James U. Campbell, Judge. Statement by Mr. Justice Moore. This is an action by John F. Hill against the president and trustees of the Tualatin Academy and Pacific University, a corporation, hereinafter called the “University,” W. N. Ferrin, and C. S. Kelsey, to recover damages for a personal injury.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Burnett. This is a suit by the Portland Sash & Door Company, a corporation, against K. E. Parker and Bessie M. Teal to foreclose a materialman’s lien for materials furnished for and used by the defendant in the reconstruction of her dwelling house.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Bean. This is an action by the Sun Dial Ranch, a corporation, against the May Land Co., a corporation, upon a contract. The cause was tried by the court without the intervention of a jury. From a judgment in favor of plaintiff for $8,671.93, defendant appeals.

<p>Parties — Mutual Benefit Insurance — Action—Real Party in Interest.</p> <p>1. Where a fraternal benefit insurance certificate provided for payment only to plaintiff’s wife, plaintiff cannot himself sue thereon without showing an assignment to him; Section 27, L. O. L., requiring actions to be brought in the name of the real party in interest.</p> <p>Frauds, 'Statute of — Answering for Debt — -Agreements Within Statute.</p> <p>2. An agreement by a life insurance company to take the insurance of a fraternal benefit company and assume its liability under the policies taken over upon payment of dues, etc., by the members was, as between such members and the life company, a contract to answer for another’s debt; and hence the agreement must satisfy the statute of frauds by showing a consideration.</p> <p>Evidence — Burden of Proof.</p> <p>3. The burden is on plaintiff to prove material allegations of a complaint which were traversed by the answer.</p> <p>Insurance — Agency—Sufficiency of Evidence — Authority of Agent.</p> <p>4. Evidence, in an action on a mutual benefit certificate claimed to have been taken over by defendant insurance company after it was issued to plaintiff by a fraternal benefit' company, held not to show authority by defendant’s manager to contract for defendant to assume the obligation on plaintiff’s certificate.</p> <p>Evidence — Hearsay.</p> <p>5. A statement that witness "understood that another was manager of a company” was hearsay.</p> <p>Principal and Agent — Proof of Agency — Proof.</p> <p>6. While an agent is a competent witness to prove his agency, the agency cannot be shown by his letters or his oral declarations.</p> <p>Frauds, Statute of — Evidence—Sufficiency—Consideration.</p> <p>7. Certain letters to plaintiff by an officer of defendant insurance company, which plaintiff claimed had taken over the business of a fraternal company in which he was insured, held not to show any consideration for defendant’s assumption of the fraternal company’s obligations, so as to comply with the statute of frauds.</p> <p>Insurance — Mutual Benefit Insurance — Reinsurance—Terms of Contract — Evidence.</p> <p>8. Plaintiff, in suing on an insurance certificate, and relying on a contract made by defendant for the benefit of himself and other members with the order in which he was originally insured, by which defendant agreed to take over such insurance and assume the obligations thereunder, should put that contract in evidence; a bare reference thereto in letters from defendant put in evidence being insufficient to show the terms of the contract.</p> <p>Contracts — Reference to Other Instruments — Evidence.</p> <p>9. An instrument expressly referred to by a contract as containing a part of the stipulations of the parties becomes a part of the contract, and hence must be put in evidence to prove the whole contract.</p> <p>Trial — N onsuit — Determination.</p> <p>10. In passing upon a motion for a nonsuit, the court should consider all the testimony and construe all the writings introduced by the plaintiff.</p> <p>Insurance — Reinsurance—Contract—Proposal and Acceptance.</p> <p>11. Where a conditional offer is made to execute a written reinsurance contract, there is no contract until the offer is accepted with its conditions and the writing is executed and delivered.</p> <p>Insurance — Reinsurance—Contract—Separate Contract Referred to.</p> <p>12. Where an insured accepted a certificate from an indemnity company which stated that the company bound itself as set forth in a certain contract of reinsurance between it and the order in which the insured had his policy, such contract of reinsurance became a part of the contract between the insuréd and the indemnity company.</p> <p>Insurance — Reinsurance—Construction—Accepted Offer.</p> <p>13. One who has accepted the offer of an indemnity company to reinsure him cannot adopt the part most favorable to him and reject the remainder.</p> <p>Insurance — Actions—Pleading—Proof..</p> <p>14. One declaring upon a specific contract of reinsurance must prove all the conditions which are essential under it to fix and measure the defendant’s liability.</p>

From Curry: James W. Hamilton, Judge. Statement by Mr. Justice Burnett. This is an action by L. G. Higgins and J. E. Higgins, by L. G. Higgins, his Guardian, and L. L. Higgins, by his Guardian, L. C. Higgins against Norman G. Seaman and N. W. Rountree regarding the sale of certain mining claims.

<p>Quo Warranto — Powers of Prosecuting Attorney.</p> <p>1. While all oí the powers exercised by the Attorney General at common law still exist, the Legislature may distribute them among various officials, and the creation of the office of the Attorney General, after tlie enactment in 1862 of what is now Sections 363-377, L. O. L., which authorizes prosecuting attorneys to begin those actions provided for in the place of quo warranto, did not deprive the prosecuting attorneys of those powers, even though such powers at common law belong to the Attorney General. ,</p> <p>Quo Warranto — Proceedings—Consent of State Officers — Prosecuting Attorneys — Statutes—“Commence”—“Prosecute.”</p> <p>2. Sections 363-377, L. O. L., abolished the writ of quo warranto, and provided that the remedies obtainable under that proceeding might be obtained by an action at law in the name of, the State by the prosecuting attorney. Subsequently, by Section 2666, L. O. L„ the office of Attorney General was created, and Section 2670 makes it his duty to appear, prosecute, and defend for the State all suits or proceedings in the Supreme Court in which the State is a party or interested, to appear, prosecute, or defend any action in any court in which the State is a party or interested, and, when requested, to consult and advise with the district attorneys. Held, that it being the duty of the courts reconcile, if possible, two apparently conflicting statutes, so that both may stand, the enactment of these later statutes did not deprive prosecuting attorneys of the exclusive right to commence those actions given in place of quo warranto, the word “commence” having rather a different significance from “prosecute,” which may mean to prosecute an action to completion after it has been commenced by another.</p> <p>Quo Warranto — Proceedings—Demurrer—“Jurisdiction."</p> <p>3. Where the action provided for in place of quo warranto was erroneously begun by the Attorney General, the defect could be taken advantage of by demurrer, for, while the court had jurisdiction over the defendants by their appearance, jurisdiction involves, not only authority over the person of defendant but authority over the subject matter, and the complaint showed that the action had not been commenced according to law.</p>

<p>Appeal and Error — Transcript—Time op Filins.</p> <p>Under Section 550, suhds. 2, 4, L. O. L., providing that within 10 days from notice of appeal the appellant shall serve his undertaking, and the adverse party must, within 5 days, except to the sureties, and that from the expiration of the time allowed to except to the sureties the appeal shall be deemed perfected, and section 554, providing that, the appeal being perfected, the appellant shall file, within 30 days thereafter, the transcript, the undertaking having been filed on November 24th, a transcript filed on January 2d was too late.</p>

<p>Appeal and Error — Decisions Appealable — Orders Vacating Defaults — "Final Judgment” — "New Trial” — "Trial."</p> <p>1. An order vacating a default decree of divorce and allowing defendant .to answer in accordance with Section 59, L. O. L., is not an appealable order within Section 548, providing that appeals will lie from final judgment and decrees, in effect determining the action and orders setting aside the judgment and granting a new trial, for the order is not a final one determining the suit, and neither is it an order granting a new trial which is defined by Section 173 as a re-examination of an issue of fact in the same court after judgment, for this order only vacates a default, and there has been no trial which is defined by Section 113 as the judicial examination of the issues between the parties.</p> <p>Appeal and Error — Reviews—Scope of Review.</p> <p>2. On appeal from a final decree, every intermediate order may be reviewed.</p> <p>Divorce — Defaults—Vacation.</p> <p>3. In an action for divorce where defendant, who was served with summons by publication and against whom a default decree was taken, filed a motion supported by affidavit, asking to be allowed to defend, and at the same time tendered her answer, the trial court, under Section 59, L. O. L., providing that a defendant against whom publication is ordered may, upon good cause shown, be allowed to defend after judgment, properly set aside the default judgment without waiting for the defense to be established.</p> <p>Divorce — Defaults—Vacation.</p> <p>4. Section 59, L. O. L., providing that a defendant against whom publication is ordered may upon good cause shown be allowed to defend after judgment on such terms as may be just, applies to suits for divorce.</p> <p>Appeal and Error — Motion to Dismiss — Matters Considered.</p> <p>5. On motion to dismiss, on the ground that it was not an appeal from a final judgment an appeal from an order vacating a decree for divorce, matters relating to merits cannot be considered.</p>

From Clackamas: James U. Campbell, Judge. This is a suit by Wilton L. Freeman against J. T. Alexander and Frank T. Berry, for the cancellation of a deed. There was a- decree in favor of plaintiff, from which the defendants appeal.

<p>Criminal Law — Evidence—Testimony of Codefendant.</p> <p>1. A codefendant cannot be used as a witness for or against the accused on separate trial until the issue as such defendant is determined or avoided by dismissal as to the proposed witness.</p> <p>Adultery — Persons Liable — Accomplice—Single Woman.</p> <p>2. Under Sections 1458, 2370, L. O. L., providing that accessories in the commission of felonies shall be indicted, tried, and punished as principals, a single women may be indicted as a principal for participation in the act of adultery with a married man.</p> <p>Criminal Law — Accomplice.</p> <p>3. One may be an accomplice in a criminal act which he or she cannot commit alone.</p> <p>Adultery — Accomplice.</p> <p>4. In order for a women to be an accomplice in adultery, it is not essential that she be absent and not directly participating in the criminal act.</p> <p>Criminal Law — Accomplice.</p> <p>5. There is no distinction between an accomplice as a witness and the same individual as a defendant.</p> <p>Criminal Law — Evidence—Codependant—Discharge to be a Witness.</p> <p>6. Under Section 1531, L. O. L., providing that a codefendant can be discharged to be used as a witness only where the court believes there is not sufficient evidence to put the proposed witness on defense the court was, not required to discharge an unmarried female to be used as a witness, where she was jointly indicted with the defendant for adultery, and so far as the record disclosed, might have been active in making opportunities for the adulterous acts.</p>

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>Statement by Me. Justice Burnett.</p> <p>This is an action by Charles K. Henry against George A. Harker to recover broker’s commissions.</p> <p>The substance of the complaint is that along about November, 1906, the defendant employed the plaintiff as a real estate broker to find and secure a purchaser for certain real property, situated in Portland, for the sum of $45,000, agreeing to pay the plaintiff the usual and customary commission paid to real estate agents in said city; that plaintiff accepted the employment, and, in pursuance thereof, on December 15, 1906, found and procured Frank C. Baker and A. H. Maegley as purchasers for the premises at the price stipulated, and, having notified defendant thereof, the latter refused to sell, although Baker and Maegley were at all times ready and willing to purchase at that price. The defendant admits his refusal to sell the property, and admits that the plaintiff notified him that he had sold the property for $45,000, but otherwise the complaint is traversed by the denials of the answer. The defendant affirmatively alleges that, immediately upon notice of the property having been sold, he advised the plaintiff that the alleged sale was unauthorized, and that he would not make the same. This allegation of the answer was traversed by the reply. The cause was tried by the court without a jury. The court in its findings, after giving the character of the plaintiff as a real estate broker, and that the defendant was the owner of an undivided half of the property described, finds as a matter fact that no oral communications were had between the plaintiff and the defendant concerning the matters referred to in the pleadings, and that all the negotiations and transactions- between them are shown to be and consist in correspondance, which so far as we deem it material, is ■ here set down:</p> <p>(1) “Portland, Oregon, March 5, 1906.</p> <p>Mr. G. A. Harker, Santa Barbara, California — Dear Sir: I have some prospective customers for First street property, and as you are the owner of the south half of lot No. 7, and the north half of lot No. 6, in block No. 3, I wish to inquire whether you will sell this property, and if so what your price would be, and also your terms. If you desire to place this property in my hands for sale on the usual commission^ basis, I will give it my immediate and prompt attention.</p> <p>Respectfully yours,</p> <p>Charles K. Henry.”</p> <p>(2) “Santa Barbara, March 10, 1906.</p> <p>Mr. Charles K. Henry — Dear Sir: Yorus of March 5 at hand. In reply will say that we will sell the property you mention for $40,000.00. Terms cash. Though we are not putting the property on the market, we would be willing to have any transaction on the above terms go through your hands. My permanent address is Mill Valley, Marin County, California.</p> <p>Very truly yours,</p> <p>George A. Harker.”</p> <p>(3) “Portland, Oregon, October 9, 1906.</p> <p>To Dr. George A. Harker, Mill Valley, Marin County, California — Wire best terms on gross price. Forty thousand dollars on First street property.</p> <p>Charles K. Henry.”</p> <p>(4) “Portland, Oregon, October 18, 1906.</p> <p>Dr. George A. Harker, Mill Valley, Marin County, California — Dear Sir: When I wired you it was my object to get terms on your place. Your price for it some time ago was $40,000.00, and I had quoted it to several people. At that time it appeared that the tenants were going to move, and buyers did not like to buy with that uncertainty before them. Would be pleased to have you state your lowest price and terms, allowing me the usual commission in the event of making the sale. Trusting to be favored with an early reply, and thanking you in advance, I am,</p> <p>Respectfully yours,</p> <p>Charles K. Henry.”</p> <p>(5) “Mill Valley, October 30, 1906.</p> <p>Mr. Charles K. Henry — Dear Sir: Your letter of the 18th was side tracked in our local post office, otherwise I should have answered before. Since stating my figure on the First street property I have decided to make improvements and lease it for a number of years. As it will bring an increased rental I would not sell for $40,000.00. I consider the property a good investment at $45,000.00 and would not sell below that figure.</p> <p>Very truly yours,</p> <p>George A. Harker.”</p> <p>(6) “Portland, Oregon, November 5, 1906.</p> <p>Dr. George A. Harker, Mill Valley, California — Dear Sir: Just in receipt of your letter of October 30th, giving the price of $40,000.00 for your First street property. Will you kindly give me a short time, say thirty days, in which to effect the sale at the price of $40,000.00? For how long does the lease run, and at what rate of interest? Would you want all cash, or just what payments would suit you? Kindly let me know at your earliest convenience, and I will be pleased to make the sale on the usual commission basis. * * Trusting I may be favored with an early reply, I am,</p> <p>Respectfully yours,</p> <p>Charles K. Henry.”</p> <p>(7) “Mill Valley, November 8, 1906.</p> <p>Mr. Charles K. Henry — Dear Sir: Yours of the 5th at hand. I think you must have made a mistake about my price. I wrote, or it was my intention to write, $45,000.00 as the price. According to the terms of the lease I am to spend $3,000.00 on the premises. The lease is for 5 years at $300.00. I am not particularly anxious to sell, but might consider a cash offer.</p> <p>Very truly yours,</p> <p>George A. Harker.”</p> <p>(8) “Portland, Oregon, November 14; 1906.</p> <p>Dr. George A. Harker, Mill Valley, California — Dear Sir: Replying to your letter of the 8th inst., I beg to say that it will be difficult to get $45,000.00 for the property under a long time lease at that rate. The long lease bars other people from the property, and does not pay much after deducting the taxes and insurance. I doubt if I can get more than $42,500.00. However, I will make the best efforts I can, and if I get an offer near that price I will wire you. As I understand it you are asking all cash. * * Rest assured, Mr, Harker, that I will do the best I can to get $45,000.00 for your lot, although I consider it rather high. Trusting I may be able to effect the sale for you in the near future, I am,</p> <p>Respectfully yours,</p> <p>Charles K. Henry.”</p> <p>(9) “Portland, Oregon, December 14, 1906.</p> <p>Dr. Geo. A. Harker, Mill Valley, California: New increased assessment makes property hard to sell. Have tried many buyers for First street property. Best offer I get is forty-four thousand dollars cash. Wire answer at my expense.</p> <p>Charles K. Henry.”</p> <p>(10) “Mill Valley, California, December 14, 1906.</p> <p>Mr. Charles K. Henry, 122 Third Street, Portland, Oregon: Will not sell at price mentioned.</p> <p>G. A. Harker.”</p> <p>(11) “Portland, Oregon, December 15, 1906.</p> <p>Dr. George A. Harker, Mill Valley, California: Have sold First street property for your price, $45,000.00 cash. I rebating five hundred dollars of my commission to purchaser to effect sale. Foward abstract.</p> <p>Charles K. Henry.”</p> <p>(12) “Portland, Oregon, December 15, 1906.</p> <p>Dr. George A. Harker, Mill Valley, California — Dear Sir: I wired you yesterday an offer of $44,000.00 for your First street property. On receipt of your reply, I finally prevailed upon the purchaser to come up to your price of $45,000.00, and in order to do so I had to rebate five hundred dollars of my commission to them. The new assessment of $37,700.00 will bring the tax up so high that there is not much margin for investment. * * I wired you to-day notifying you of the sale at your price, $45,000.00 as above, a,nd have accepted a deposit of one thousand dollars on it, and the remainder to be paid when the abstract and the title are found perfect. * * Kindly forward your abstract that it may be brought up to date, that we may get the transaction finally closed.</p> <p>Respectfully yours,</p> <p>Charles K. Henry.”</p> <p>(13) “Mill Valley, December 17, 1906.</p> <p>Mr. Charles K. Henry — Dear Sir: I am in receipt of your telegram saying that you have a purchaser for the property at $45,000.00. Though this is a good price, considering the terms of the lease, we have decided on account of the increasing values not to sell at present. Regretting to have put you to any trouble, I am,</p> <p>Very truly yours,</p> <p>George A. Harker.”</p> <p>(14) “Portland, Oregon, December 20, 1906.</p> <p>Dr. George A. Harker, Mill Valley, California: Your letter of seventeenth a surprise. I sold your property under written authority, in good faith, for your price, cash. Buyers will insist on delivery, and I shall insist on my commission. Wire ratification or suit will be brought immediately. Charles K. Henry.”</p> <p>There is an additional letter from plaintiff to defendant under date of December 21, 1906, but as it only quotes and amplifies upon the telegram last mentioned, it is not deemed necessary to reproduce it here. The court also made a finding of fact as follows:</p> <p>“(11) On December 15, 1906, the plaintiff received from said Frank C. Baker and A. H. Maegley $1,000 on account of the purchase price of said real property, and as agent for defendant signed and delivered to them a receipt for said $1,000, in words and figures as follows: ‘Portland, Oregon, December 15, 1906. Received from Frank C. Baker ánd A. H. Maegley the sum of one thousand ($1,000.00) dollars, as part payment, and as earnest of their intention to purchase from Dr. George A. Harker, the following real property: The north half of lot numbered six (6), and south half of lot numbered seven (7), in block numbered three (3), in the city of Portland, being fifty (50) feet frontage on First street, and building thereon occupied by Martin Furniture Company. Subject, to an existing five-year lease of the Martin Furniture Company, at a monthly rental of three hundred ($300) dollars, at the agreed price of forty-five thousand dollars ($45,000.00), to be paid as follows: Forty-four thousand dollars ($44,000.00), remainder, to be paid in cash on delivery of clear deed and abstract of title. It is hereby agreed that in case of failure of title, or from any other cause, said land is not delivered free of all incumbrance by a good an sufficient deed, the said above sum of one thousand dollars ($1,000.00) is to be returned to said Frank C. Baker and A. H. Maegley. Fifteen days allowed to examine abstract of title. It is hereby agreed that the purchaser is to pay all taxes or street improvements that may be levied against said property after date of .delivery of deed. Purchaser failing to make the payments above specified the deposit money will be forfeited as stipulated damages. George A. Harker, by Charles K. Henry, Agent. Note — On completion of this sale I am to pay to Maegley and Baker five-hundred ($500.00) of my commission to effect sale.</p> <p>C. K. Henry.”</p> <p>On the findings the court rendered judgment for the plaintiff, and the defendant appeals.</p>

<p>From Clackamas: James U. Campbell, Judge.</p> <p>This is a suit by Rose Whitcomb, Kate L. Charman, Dora Conklin, Hattie B. Wissinger and Robert Bonnet against the Town of Milwaukie, a municipal corporation, Philip Streib, as its mayor, John R. Kelso, W. F. Lehman, Warren Knight, and C. T. Stockton, as its couneilmen, and W. H. Counsel, who had secured a contract for improving a street in the town, to enjoin an alleged threatened trespass. From a decree dismissing the suit, the plaintiffs appeal.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit by Elizabeth Calavan against Iden L. Bower and L. Q. Bower, to subject the proceeds of a certain mortgage to the lien of plaintiff’s decree against L. Q. Bower, and is based upon the following facts: In 1897 plaintiff, then the wife of L. Q. Bower, obtained a decree of divorce from him, giving her the custody of the minor children, but no provision was made in the decree for their support.

<p>Logs and Logging — Evidence—Fraud.</p> <p>1. Evidence in an action to cancel a deea held sufficient to show that a person empowered "by defendant to make a sale of land fraudulently represented to plaintiff that there was 4,000,000 feet or better of merchantable timber standing on the land.</p> <p>Brokers — Powers of Broker — Representations.</p> <p>2. Where the owner of timber land, knowing another person’s familiarity with the land, authorized him to sell it, his fraudulent representation as to the amount of timber standing on the land, was, in the absence of express limitation, within the fair and reasonable scope of his authority so as to bind the owner thereby.</p> <p>Logs and Logging — Reliance on Representations — Means of Knowledge.</p> <p>3. Where timber land was situated at a considerable distance and was inaccessible except by a little used trail through the timber, the purchaser was without equal opportunity of knowing the truth, and had a right to rely upon defendant’s representations as to the amount of timber standing on the land.</p> <p>Interest — Judgments.</p> <p>4. Under Section 6028, L. O. L., which makes the rate of interest 6 per cent on all moneys after they become due, interest on a decree canceling a deed and' requiring repayment of the purchase price is not allowable from the date of the conveyance, but only from the date of the decree.</p>

From Multnomah: Melvin C. George, Judge. Statement by Mr. Chief Justice Eakin. This is an action by W. H. Grindstaff and Geo. D. Schalk, partners, doing business under the firm name of Grindstaff & Schalk, against the Merchants’ Investment & Trust Company, a corporation. Plaintiff’s sue to recover a commission for procuring a purchaser for property of defendant, known as “The Quelle,” at Sixth and Stark streets, in Portland.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Hannah Whitney against Honesty Whitney, single, Clara B. Whitney, single, A. C. Whitney and Dora E. Whitney, his wife, A. L. Whitney and Alice Whitney, his wife, G. W. Whitney and Clara Whitney, his wife, Ardula M. Porter (nee Ardula M. Whitney), widow, O. C. Whitney and Carrie Whitney, his wife, and Goldsby Whitney, single; also all other persons or parties unknown claiming any right, estate, title, lien or interest in the real estate described in the complaint and is brought to quiet the title to certain real estate in Marion County. The facts are as follows:</p> <p>Robert Whitney died about December 14, 1906, in Marion County, Oregon, leaving his last will and testament dated November 22, 1906, in which, besides revoking former wills and appointing two of his children executors without bonds, he disposed of his property in this manner:</p> <p>“I devise and bequeath to my wife, Hannah Whitney, the use and benefit and enjoyment during her natural life of all my property, both real and personal, of whatsoever kind or nature of which I shall die possessed, and after her death to be distributed as follows:</p> <p>“First. I devise to my son, George W. Whitney, the fifteen acres in the northwest corner of my farm on the west side of the Butteville road in Marion County, Oregon, for his natural life after the decease of my wife, Hannah Whitney, and should the said George W. Whitney be survived by any of my said sons or daughters then the said fifteen acres shall be divided between the survivors in equal shares, share and share alike.</p> <p>“Second. I devise to my daughter, Clara B. Whitney, the fifteen acres including the house, barn and orchard during her natural life, after the death of my said wife, Hannah Whitney, and said fifteen acres is not to be disposed of by her, my said daughter, except by will at her death.</p> <p>“Third. I devise and bequeath to my children the issue of myself and my said wife, Hannah Whitney, namely, Clara B. Whitney, Oliver C. Whitney, Ardula M. Whitney, Asa Clarence Whitney, Andrew L. Whitney, Goldsby Whitney, and Honesty Whitney, all of the rest, remainder and residue of any property, both personal and real, in equal shares as nearly as may be, share and share alike, and the real property shall not be sold to any person by either of my said children during his or her said natural life, except from one of my said children to the other or others of my said children, and the last survivor of my said children shall be entitled to the whole of said real property to be disposed of by him or her by will the same as if he or she had been willed the whole of my said real property and all save the last survivor shall hold for life only, the said real property, except the fifteen acres to Clara B. Whitney which shall be absolute to her as above stated.”</p> <p>The children named in this will were all and the only heirs of said Eobert Whitney. Ardula M. Whitney married a man named Porter, who died, leaving her his widow, at the commencement of this suit. The other defendants, besides the children of Eobert Whitney, which are named in his will, are spouses of certain of those children. This will was duly admitted to probate in the county court of Marion County, and such proceedings were ta.ken in the estate of Eobert Whitney, deceased, that on February 10, 1908, the estate was finally settled and the executors discharged. On June 24, 1911, the defendants joined in a deed of conveyance from themselves to Hannah Whitney of certain described premises which came to them under the will from the estate of Eobert Whitney. After language in usual form of bargain, sale, and conveyance-, and the description of the property involved, the deed proceeds thus:</p> <p>“To have and to hold said premises with their appurtenances and remainder or reversion and also all the estate, right, title or interest of said grantors or any of them whatsoever in said premises unto the said Hannah Whitney, her heirs and assigns forever. And said grantors do hereby covenant to and with the said Hannah Whitney, her heirs and assigns, that they are the owners in fee simple of said premises; that they are free from all incumbrances, and that they will warrant and defend the same from all lawful claims whatsoever.”</p> <p>This deed was executed and acknowledged so as to entitle the same to record and was recorded in Marion County deed records on June 26,1911. Some doubt having arisen afterwards as to the true meaning and construction of the will, the plaintiff, alleging herself to be the owner in fee simple and in the exclusive possession of the property described in the deed, brought this suit against the defendants, charged that they claimed unjustly some right, title, interest, or estate in and to the premises by virtue of the residuary clause of the will, which she sets out in her complaint, and prayed that the defendants be enjoined from asserting any claim in the premises. The answer traversed the plaintiff’s allegations of ownership in herself, sets out the entire will of Robert Whitney, and avers that the only interest, title, or claim of the plaintiff to the premises in question is by virtue of the will, and not otherwise. It was stipulated that the allegations of the answer should be deemed denied as by a reply. This is stated by counsel to be really a friendly suit for the construction of the will. The circuit court made findings of fact and conclusions of law and a decree in favor of the plaintiff according to the prayer of her complaint, and the defendant A. L. Whitney has appealed.</p>

<p>Telegraphs and Telephones — Duty to Install and Operate.</p> <p>A city ordinance gave the city’s consent to the assignment by a telegraph company of its franchise, provided for the installation of a telephone system before a certain date, and required the filing of a bond by the assignee before the ordinance should become effective. No assignment was made, no system installed, and no bond filed by the proposed assignee, although a bond was filed by the company holding the franchise. Held, that the city had no right of action on this bond for failure to install the system; the ordinance by its terms not having become effective.</p>

<p>Municipal Corporations — Public Improvements — Construction op Sewers — Statutory Provisions.</p> <p>1. The provisions in a city charter that the expense for the construction of sewers shall be assessed and collected as provided in the case of street improvements, except as otherwise specially provided, make the provisions governing the assessment and collection of the cost of street improvements applicable to the assessment and collection of the cost of the construction of sewers, except as otherwise specially provided.</p> <p>Municipal Corporations — Construction of Sewers — Assessments.</p> <p>2. The power conferred by a city charter to assess the-cost of the construction of a sewer system on the property directly benefited implies the authority to define the area to be drained.</p> <p>Municipal Corporations — Construction op Sewers — Assessment— Area — Notice.</p> <p>3. The construction of a sewer by a city, the charter of which empowers the council to authorize the construction of sewers when deemed necessary, is an exercise of the police power for the health and cleanliness of the city, and the determination of the district to be taxed for the system, is within legislative discretion, and the council in adopting plans and specifications, and prescribing the limits of the area to be drained by a sewer, need not give notice to the taxpayers.</p> <p>Municipal Corporations — Construction of Sewers — Notice to Tax PATERS.</p> <p>4. A city charter authorizing the council to construct sewers when deemed expedient on giving 10 days’ notice by publication in a daily newspaper specifying the sewer to be constructed, requires the giving of notice to the taxpayers before an assessment for the construction of a sewer can be sustained, but compliance with the charter as to the time and manner of giving notice is sufficient to confer on the council jurisdiction to act.</p> <p>Municipal Corporations — Construction of Sewers — Notice to Taxpayers.</p> <p>5. A notice that the council of a city deems it expedient and proposes to construct at the expense of property within the limits of a district a sewer system according to specifications on file at the office of the city recorder, etc., sufficiently apprises the parties interested that the council proposes .to construct a sewer system at the expense of properly owners within the limits of the district as disclosed by plans on file in a xublie office, and the property to be assessed is sufficiently described, so as to obviate the necessity of a description of such property in a notice, not required by the charter, of the levying of the assessment on the property benefited.</p> <p>Municipal Corporations — Construction of Sewers — Assessments— Validity.</p> <p>6. A city charter authorizing the construction of a sewer on giving a specified notice and authorizing an assessment of the probable cost of the improvement, and for an assessment of a deficit, when the original assessment is insufficient, does not require any additional notice of a deficit assessment, which is but a completion of the original assessment, and the only notice required is that provided in the charter for the collection of the assessment.</p> <p>Municipal Corporations — Construction of Sewers — Assessment— Validity.</p> <p>7. A deficit assessment authorized by a city charter in case an original assessment is insufficient is not premature where the contract for tlie improvement has been let and the total cost ascertained, though the work has not been completed.</p> <p>Municipal Corporations — Assessments for Public Improvements— Objections.</p> <p>8. A general objection that an assessment for the construction of a sewer is not made according to benefit is insufficient where the owners do not allege that their property may not be drained by the sewer, but merely claim that their lands will not he benefited thereby, and that part of the ■lands are already drained by sewers constructed through the city by the state.</p> <p>Municipal Corporations — Construction of Sewers — Determination of Council.</p> <p>9. The necessity and propriety of constructing a sewer at the cost of property benefited is for the exclusive determination of the council authorized by the city charter to provide for the construction of °sewers when it deems the same expedient, except in the case of fraud.</p> <p>Municipal Corporations — Public Improvements — Assessments — Objections.</p> <p>10. Where the notice required by the charter of a city authorizing the construction of sewers at the cost of property benefited on the giving of a specified notice has been given, persons interested must make their objections to the council and specify the reason why their property will not be benefited by the sewer, or wherein an assessment will be unjust, and, on a failure of the council to give a proper hearing, its action may be reviewed and thereby afford adequate remedy to such persons, and where no objections are made until after an ordinance providing for the construction and the apportionment of the expense is passed, and the contract for the construction let and the work partially performed, irregularities in the proceedings after the acquisition by the council of jurisdiction cannot be considered in a suit to avoid the entire assessment.</p> <p>Municipal Corporations —Public Improvements —Assessments — Objections.</p> <p>11. Where property owners have had' notice and an opportunity to be heard in regard to an assessment for a public improvement, equity will not grant relief against the assessment as unequal; the owners failing to appear to object at the proper time.</p> <p>Municipal Corporations — Public Improvements — Assessments — Validity.</p> <p>12. An ordinance levying an assessment for the cost of a sewer system which makes an assessment on property alleged to be benefited, and which recites that such property is drained by the sewer, sufficiently shows that the property is directly benefited within the city charter authorizing assessments on property directly benefited.</p> <p>Municipal Corporations — Public Improvements — Assessments —■ Validity.</p> <p>13. An assessment according to superficial area for the cost of a sewer system is not necessarily void as not made under the rule requiring assessment to be in proportion to benefits.</p> <p>Municipal Corporations — Public Improvements — Assessments.</p> <p>14. Where land is assessed for the construction of a sewer conferring a benefit on it, the assessment is not void merely because the city water mains are not extended along the streets on which the land to be assessed is situated.</p> <p>Municipal Corporations — Public Improvements — Assessments — Validity.</p> <p>15. Where land assessed for a sewer system could be drained by the system, and it did not appear that the land was not enhanced in value to the full amount of the assessment, the assessment was valid as levied oii land directly benefited by the system, and the court in a suit to enjoin the collection of the assessment would not assume that the municipal authorities did not take all the facts into consideration in making apportionment of the cost.</p> <p>Municipal Corporations — Public Improvements — Assessments — Validity.</p> <p>16. Where land assessed for a sewer system had a right to connect with the system when completed, and the ordinance for the construction of the system purported to provide a system of drainage for the land assessed, the assessment was not void because the ordinance did not provide that the owners of the land could connect with the sewer.</p> <p>Municipal Corporations — Public Improvements — Assessment of Benefits.</p> <p>17. Nonabutting land may be benefited by the construction of a sewer and assessed for benefits.</p> <p>Municipal Corporations — Public Improvements — Assessments for Benefits — Agricultural Lands.</p> <p>18. Property devoted to agricultural purposes is subject to special assessment for special benefits for the cost of a sewer.</p> <p>Municipal Corporations — Public Improvements — Special Assessments-"VALIDITT.</p> <p>19. Land drained by an existing sewer constructed by the state may not be assessed for the construction of a new sewer, where no benefits to the land are derived therefrom.</p>

From Clatsop: Jambs U. Campbell, Judge. Statement by Mr. Justice Burnett. This is an injunction suit by the Callender Navigation Company, a corporation, against M. R. Pomeroy. It appears in substance by the complaint in this suit that the plaintiff is a corporation organized under the laws of the state of Washington, having its principal office at Knappton, in that state, and owning certain steam vessels which it employs in interstate commerce between that state and Oregon.

<p>From Douglas: John S. Coke, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action by S. C. Salander against Calvin Judy, for the possession of real property.</p> <p>Plaintiff alleges ownership in fee simple and the right to the possession of the following described property:</p> <p>The S. E. % of the N. W. the N. V2 of the S. W. *4, and the S. E. % of the S. W. *4 of section 24 in township 23 S., of range 10 W., W. M., containing 160 acres, in Douglas County, State of Oregon.</p> <p>Defendant, by his answer, denies the allegations of the complaint, and pleads that he is the owner in fee simple and entitled to the possession of the land.</p> <p>The reply puts in issue the affirmative allegations of the answer. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Evidence — Judicial Notice — Laws op the State.</p> <p>1. The Supreme Court takes judicial notice of all the acts of the legislative assembly of the State.</p> <p>Pleading — Demurrer—Matters Raised by Demurrer.</p> <p>2. The court taking judicial notice of all acts of the legislative assembly of the State, questions as to the validity of statutes granting public lands in aid of a railroad, alleged in the complaint, under which plaintiff claims, are properly raised by general demurrer to the complaint, without the necessity of proving them or making findings of fact with respect thereto.</p> <p>Statutes — Title of Act — Constitutional Restrictions in General.-</p> <p>3. Under Article IV, Section 20 of the constitution requiring that every act shall embrace but one subject and matters properly connected therewith, which subjects shall be expressed in the title, it is enough if the title is a fair index of the general purposes of the proposed law, the details not necessarily being a part of the title, but properly worked out in the body of the act; and as every intendment is in favor of the constitutionality of a statute, if by any fair inference the terms of a statute may be found to be cognate to the terms of its title, the statute will stand.</p> <p>Statutes — Title of Act — Grant of Land to Railroad — “Provide.”</p> <p>4. Article IV, Section 20 of the constitution provides that every act shall embrace but one subject and-matters properly connected therewith, which subjects shall be expressed in the title, and the act approved October 24, 1874 (Laws 1874, p. 51), entitled “An act to provide for the construction of the Willamette Valley & Coast Railroad,” granted to that railroad all the tiae and marsh lands situated in the county of Benton, and the right to take from lands adjacent to its line material for the construction of the road, and that upon the filing of its acceptance thereof within 30 days the company should become invested with absolute title thereto, to be thereafter set apart. Held, that the word “provide” means to obtain or make ready supplies or means for future use, to take measures in view of an expected or possible need, and that within the meaning of that term the grant of land was germane to the title of the act.</p> <p>Navigable Waters — Tidelands—Ownership by State — "Jus Privatum” — “Jus Publicum.”</p> <p>5. Under the common law and Act Cong. Feb. 14, 1859, c. 33, 11 Stat. 383, admitting Oregon as a State, and providing that all the navigable waters of the State should be common highways forever free to the inhabitants of the State and to all other citizens of the United States, the tidelands between high and low-water mark became the property of the State; and in the title thus acquired there were two elements — the “jus privatumf3 or private right, and the “jus publicum.” or public right; the jus privatum being a species of private property which the State held the, same as a private owner, and might grant to any one, in any manner, or for any purpose not forbidden by the constitution, the grantee thereby taking the title as absolutely as under a private conveyance; but the jus publicum, being the domininion of sovereignty in the State, by which it prevents any use of lands bordering on navigable waters which would materially interfere with navigation and commerce thereon, cannot be abdicated or granted.</p> <p>Statutes — Amendment and Revision — Constitutional Restrictions.</p> <p>6. Act Feb. 5, 18S5 (Laws 1885, p. 5), entitled “An act to re-enact and amend an act, approved October 24, 1874, entitled ‘An act to provide for the construction of the Willamette Valley & Coast Railroad,’ as amended by the act approved October 14, 1878, entitled ‘An act to amend an act entitled “An act to provide for the construction of the Willamette Valley & Coast Railroad,” approved October 24, 1874,’ and to confirm the rights of the said railroad company under the said acts,” and which declared by Section 1, after referring to the former act, that it was thereby re-enacted with the amendments thereinafter specified, and by Section 2 that Section 5 of the act of 1874, as amended by the act of 187S (Laws 1878, p. 4, § 4), be amended “so as to read as follows,” etc., and by Section 3 that the State thereby expressly waived all rights reserved under the former acts, and that nothing in them should be construed to work a forfeiture, in so far as it purported merely to amend the former act by mere reference to its title, violated Article IV, Section 22 of the constitution providing that no act shall be so revised or amended, but that the act revised or the section amended shall be set forth at full length; but as to Sections 2 and 3 was not in conflict with that provision.</p> <p>Public Lands — Grant to Railroad — Waiver of Forfeiture.</p> <p>7. Where public land is granted to a railroad corporation, subject to forfeiture to the State if a certain line of its railroad is not completed by fixed time, it is competent for the legislature thereafter to waive ¿5 forfeiture and confirm the title of the corporation to the land, although it might not have complied with the terms of the grant.</p> <p>Puelic Lands — Grants—“Float."</p> <p>8. “Float” is a term applied to a grant of land by the government, land not having been specifically selected; that is, a general grant of a certain amount of lands to be selected in the future by the grantee.</p> <p>Navigable Waters — Tidelands—Construction of Grant — Survey.</p> <p>9. Under act approved October 24, 1874 (Laws 1874, p. 51), which granted to a railroad company certain tidelands, and the right to take from adjacent lands material necessary for the construction of its road, and which provided that when it was reported that 10 miles of road had been equipped the Governor of the State shofald cause the land to be surveyed and set apart for the benefit of the company, the condition that the Governor should cause the land to be surveyed was a mere gratuity or part of the grant, and did not affect the title passed by the act, in the absence of plain words postponing the effect of the grant to the time when the survey should be completed and the State had parted with and the railroad acquired all the private right of the State in such lands.</p> <p>Eminent Domain — Taking Property — Repealing Public Grant.</p> <p>10. Act Feb. 23, 1909 (Laws 1909, p. 221), repealing Section 1 of the act approved October 24, 1874 (Laws 1874, p. 51), granting certain tidewater lands to a railroad company, and act approved February 5, 1885 (Laws 1885, p. 6) Section 3, waiving the forfeiture of the rights reserved by the State under former acts, violates Article I, Section 18 of the constitution declaring that private property shall not be taken for public uses without just compensation, nor, except in case of the State, without such compensation first assessed and tendered.</p> <p>Injunction — Officers—State Board.</p> <p>11. Officers constituting the State Land Board, as a board of commissioners for the sale of school and university lands, may be enjoined from an intended unlawful sale of tidelands already granted by the State.</p>

<p>From Multnomah: James W. Hamilton, Judge.</p> <p>This is an action by Stella Atherton against G. E. Walling. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by R. W. McKeon, C. C. Oihus, T. H. Cochran, Joseph McChesney, J. B. Holbrook, Peter Autzen, A. M. Stearns, M. L. Holbrook, Portland Manufacturing Company, a corporation; Peninsula Iron Works, a corporation; Lawrence Holbrook, and others, against the City of Portland, a municipal corporation; Joseph Simon, as mayor of the city of Portland; A. L. Barbur, as auditor of the city of Portland; George L. Baker, councilman of the city of Portland; John Annand, councilman of the city of Portland; H. A. Breding, councilman of the city of Portland; George B. Cellars, councilman of the city of Portland; T. J. Concannon, councilman of the city of Portland; H. J. Mclnnis, councilman of the city of Portland; M. J. Driscoll, councilman of the city of Portland; Geo. D. Dunning, councilman of the city of Portland; Joseph T. Ellis, councilman of the city of Portland; K. K. Kubli, councilman of the city of' Portland; J. H. Burgard, councilman of the city of Portland; R. E. Menefee, councilman of the city of Portland; A. G. Rushlight, councilman of the city of Portland; H. W. Wallace, councilman of the city of Portland; Frank E. Watkins, councilman of the city of Portland; city of St. Johns; K. C. Couch, as mayor of the city of St. Johns; F. A. Rice,' as recorder of the city of St. Johns. The facts are as follows:</p> <p>During the occurrences mentioned in the pleadings in the cause the city of Portland was a municipal corporation deriving its powers from an act of the legislative assembly entitled, “An act to incorporate the city of Portland, Multnomah County, State of Oregon, and to provide a charter therefor, and to repeal all acts or parts of acts in conflict therewith,” approved January 23, 1903; and the city of St. Johns was another municipal corporation operating as such under a charter formed and enacted by its legal voters under the sanction of Section 2, Article XI, Constitution of Oregon, the same being entitled, “An to incorporate the city of St. Johns, Multnomah County, State of Oregon, and to provide a charter therefor, and to repeal all acts or parts of acts in conflict therewith,” and adopted by the people of St. Johns at an election called for that purpose in the year 1907. Both cities had been previously incorporated by acts of the legislative assembly and they adjoin each other. In article 4 of chapter 1 of the Portland Charter is laid down a procedure for the annexation of territory contiguous to the limits of that city. In substance, it requires that the matter shall be initiated by presenting to the Portland council a petition defining the boundaries of the outlaying district and signed by at least 15 per cent of the qualified voters therein. The council, on receipt of the petition shall consider and determine whether annexation of the designated area shall be submitted to the voters thereof and by a resolution adopted by a two-thirds vote at least 30 days prior to the time of the pouplar vote, may submit the question to the electors of the proposed addition at the next general election held therein. Such a petition was presented to the council of the city of Portland, describing territory exactly coincident with the municipal limits of the city of St. Johns, and by its resolution of September 14, 1910, the Portland council decided to submit the question to the voters within those boundaries at the general election held throughout the State November 8, 1910. At that election the majority of votes cast by the electors residing in the corporate limits of the city of St. Johns and who voted on that question was given in favor of annexation. It appears that in the effort to amalgamate the two cities, all the affirmative action there was consisted of that taken by the mayor and common council of Portland in pursuance of the petitions of 15 per cent of the citizens of St. Johns followed by the votes at the election already alluded to. No action was taken by the mayor and common council of St. Johns. At this juncture the plaintiffs, being freeholders and taxpayers residing within the limits of St. Johns, alleging that their burden of taxation would be increased by the proposed consolidation without any resulting benefit to them, brought this suit to enjoin further proceedings under the scheme already inaugurated. Some issues were raised by the pleadings on matters not here mentioned, but the foregoing statement of admitted facts is deemed sufficient for the purposes of this opinion. On the hearing the circuit court dismissed the bill, and the plaintiffs appeal. Reversed: Decree Rendered.</p>

<p>Appeal and Error — Mistake in Abstract — Correction—Motion to Strike.</p> <p>1. If there is a mistake in an abstract on appeal as to the evidence, it may be corrected by respondent’s filing an additional abstract, and until he does so a motion to strike such evidence from the abstract will not be granted.</p> <p>Statutes — Title—Sufficiency.</p> <p>2. Under Section 20, Article IV, Constitution of Oregon, providing that the subject of every act shall be expressed in its title, the title of Laws 1903. p. 262, entitled, “An act providing for the establishment of county roads, for the appointment of supervisors and for the levy and collection of road taxes,” etc., is sufficiently broad to include a provision embodied in Section 6375, L. O. L., defining the liability of counties for injuries to travelers on defective highways</p> <p>Statutes — Title—Sufficiency.</p> <p>3. Section 20, Article IV, Constitution of Oregon, providing that the subject of every act shall be expressed in its title, is not violated by a statute having various details properly germane to one general object, and, where all the' provisions of a statute relate directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, the provisions are valid.</p> <p>Constitutional Law — Statutes—Validity—Presumptions.</p> <p>4. Every reasonable doubt as to the validity of a statute must be resolved in favor of its constitutionality.</p> <p>Bridges — Injuries From Defects — Liability.</p> <p>5. Section 6375, L. O. L., authorizing a recovery for injuries to travelers on defective highways or bridges, imposes on a county the duty to absolutely discover and know the condition of its roads and bridges, and makes a failure to do so actionable negligence, and a traveler injured on a defective bridge who shows that he was lawfully traveling thereon, that he received an injury by reason of a defect therein, that his own negligence did not contribute to the injury, and that he was ignorant of the defect, may recover, and no diligence in inspection by county authorities will protect the county from liability.</p>

<p>Injunction — Jurisdiction—Remedy at Law.</p> <p>1. A tenant holding over after the expiration of his written lease cannot sue to enjoin an action of forcible entry and detainer, on the ground that the landlord orally agreed to renew the lease for one year, since, under Section 808, subd. 6, L. O. L., agreements to lease for one year need not be in writing, and are provable by parol; and therefore the tenant had an adequate remedy at law by way of defense to the action of forcible entry and detainer.</p> <p>Landlord and Tenant — Lease—Mutuality—Necessity.</p> <p>2. Allegations that a landlord orally agreed to renew a lease, without any allegations that the tenant agreed to take the premises or pay the rent, are insufficient to establish a lease.</p>

From Multnomah: Calvin U. Gantenbein, Judge. This is a suit by Frank Kiernan against the city of Portland, a municipal corporation, Joseph Simon, Mayor, A. L. Barbur, Auditor, and Ladd & Tilton Bank, a corporation. From a decree in favor of defendants plaintiff appeals.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Me. Chief Justice Eakin. This is a suit by N. M. McDaniel against Rosi Chiaramonte.

<p>Appeal and Error — Appellate Practice — Constitutional Provisions — Scope op Operation.</p> <p>1. Section 3, Article VII, Constitution of Oregon, as amended November 8, 1910, prohibiting reversal of a just judgment for error during the trial, governs where the bill of exceptions was allowed after that date.</p> <p>Appeal and E*rror — Questions Reviewable — Constitutional Provisions.</p> <p>2. Under Section 3, Article VII, Constitution of Oregon, as amended November 8, 1910, prohibiting the reversal of a just judgment for error during the trial, a judgment rendered on a verdict justified by the evidence will not be disturbed on appeal for error during the trial.</p>

<p>From Clatsop: James A. Eakin, Judge.</p> <p>This is a suit by Marie Drilling against Starr T. Smith and Blanch Smith, his wife, G. T. Smith and Edna P. Smith, his wife, to quiet title to certain real property in Clatsop County, Oregon. There was a decree in favor of defendants, and plaintiff appeals. The facts are stated in the opinion.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Commissioner Slater. This is a suit for divorce by T. J. Luper against Lizzie R. Luper. From a decree for defendant on her cross-complaint, plaintiff appeals. The facts are as follows: On July 3, 1906, plaintiff filed a complaint charging defendant with having deserted him in December, 1904, and praying for a divorce. Service of summons, by order of the court based on plaintiff’s affidavit, was had by publication.

From Multnomah: JOHN B. CLELAND, Judge. Statement by Mr. Justice Moore. This is a suit by Daniele F. Bonelli against W. B. Burton and J. S. Barber to annul a contract for the sale of an interest in land, to cancel a deed therefor, and to obtain a conveyance thereof.

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

<p>From Coos: John S. Coke, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action in the name of the State upon the information of George M. Brown, the prosecuting attorney of the proper district, against Henry Sengstacken, E. Mingus, W. C. Harris, L. J. Simpson, and C. S. Winsor, to determine their rights to act as a corporation. The information details the proceedings undertaken to organize in Coos County, the port of Coos Bay, sets forth wherein certain requirements of the statute, respecting the giving of notice of a special election, were not observed whereby, it is alleged, the attempt to create a municipal corporation was ineffectual, and the defendants are acting as commissioners without authority.</p> <p>The answer and the reply put in issue the material allegations of the pleadings of the respective parties, and, the cause having been tried, findings of fact were made in substance as follows: That a proper petition, particularly describing the boundaries of the territory proposed to be incorporated, was duly filed and presented to the county court of that county, which ordered a special election to be held April 19, 1909, at the several polling places in the 12 precincts comprising the district. That in each of 3 of these precincts a second or additional board, consisting of 3 judges and 3 clerks, were regularly appointed. That, within the time prescribed, the county clerk caused to be printed and mailed to each of the judges and clerks of such precincts two notices of election. That the election was held on the day appointed, and, the returns thereof having been duly made and canvassed, there were found to have been cast 1,234 ballots, of which 992 were polled in favor of the incorporation and 221 against it. That thereupon the county court caused to be entered in its journal the results of the election and an order proclaiming the incorporation of the port of Coos Bay. That of the 180 notices of election required to be posted, there were put up in the several precincts, by the judges and clerks appointed therefor, only 105; that at their request there were posted by third parties 8, by other persons 9. That no evidence was offered as to the putting up of 14. That there was a neglect to post 44. That in the territory comprising the port the total number of electors registered for and the votes cast at several elections were respectively as follows: June, 1908, 1,788 and 1,917; November of that year, 2,002 and 1,672; November, 1910, 1,761 and 1,873. That of the total vote cast April 19, 1909, 309 ballots were polled by electors who had not been registered. That nine days prior to the election, actual notice thereof was regularly mailed to 1,764 registered voters residing in the district. That in five of the precincts public meetings were held to debate the question of the incorporation, which subject was also discussed in the public press of the district. And that between June, 1908, and April, 1909, there had been in the territory no increase of voters, the approximate number of whom was 1,950 at the time of the special election. Based on these findings, conclusions of law were deduced, in substance as follows: That the notices of election that were posted by persons other than judges and clerks afford adequate information; that it would be presumed that notices, in respect to posting which no evidence was offered, were ■ regularly put up; that there was no reasonable probability that the failure to post the entire number of notices demanded would have affected the result of the election; that the putting up of every notice specified was not essential to the holding of a valid election; and that each step required to be taken was performed with sufficient regularity to incorporate the port and to authorize the defendants, as regularly selected commissioners, to act for it. Judgment was thereupon rendered, awarding to defendants their costs and disbursements, and the plaintiff appeals.</p>

From Jackson: Frank M. Calkins, Judge. Statement by Mr. Justice Burnett.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Moore. This is a proceeding by Herbert P. Consor against John Andrew, administrator of the estate of George H. Lucke, deceased, to establish a demand against a decedent’s estate. George H. Lucke died intestate in Multnomah County September 4, 1909, and letters of administration upon the estate were issued to John Andrew, who duly qualified for the trust.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action in the matter of the revocation of the license of William Eisen.

<p>Appeal and Error — Transcript—Piling.</p> <p>Compliance with Section 554, L. O. L. providing that the transcript shall be filed with the clerk of the appellate court within 30 days after the appeal is perfected unless the time is extended, and that the time shall not be extended beyond the term of the appellate court next following the apppeal, is jurisdictional; and, where no transcript was filed before the first day of the second term of the appellate court next following the appeal, the appeal was abandoned.</p>

From Lane: LAWRENCE T. HARRIS, Judge. This cause is an ejectment proceeding commenced by Isham Burnett against the Story-Bracher Lumber Company, a corporation, Charles W. Stimson, L. G. Gerum and Elizabeth Gerum, his wife, Eugene Finnen and Josie Finnen, his' wife.

<p>Set-Off and Counterclaim — Connection -with Subject of Action.</p> <p>1. Under Section 74, subd. 1, L. O. L., permitting a cause of action, arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, to be interposed as a counterclaim in an action at law, it is not sufficient that the counterclaim is connected with the subject of the action, unless it also arises out of the contract or transaction set forth in the complaint, especially in view of Section 401, expressly permitting counterclaims in suits in equity which are merely connected with the subject of the suit, and Section 389, retaining the distinction between actions at law and suits in equity.</p> <p>Set-Off and Counterclaim — “Set-Off”—-Nature.</p> <p>2. A "set-off” is not technically a matter of defense and does not sound in damages, but is a money demand by defendant against plaintiff, arising on contract and constituting a debt independent of and unconnected with the cause of action set forth in the complaint.</p> <p>Set-Off and Counterclaim — “Recoupment"—Nature.</p> <p>3. “Recoupment” is the keeping back or stopping of something which is due, and could be invoked at common law when defendant had sustained damages from plaintiff’s breach of the contract sued on; defendant’s damages being abated from plaintiff’s claim.</p> <p>Set-Off and Counterclaim — Scope of Remedy — “Counterclaim.”</p> <p>4. The "counterclaim” authorized by Section 74, L. O. L., is an enlargement of the scope of set-off and recoupment.</p> <p>Set-Off and Counterclaim — Connection with Contract or Transaction — Counterclaim.</p> <p>5. Under Section 74, subd. 1, L. O. L., authorizing a cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim to be set up by the defendant as a counterclaim, whether a cause of action is a proper counterclaim depends on whether it can be readily seen from the nature of the case that, at the time the transaction culminated, the parties could have reasonably intended that it might in some event give rise to such a cause of action ; and hence, in an action on a contract by which 'the buyer stipulated to pay a specified sum as liquidated damages to cover deterioration if the goods were returned, a •counterclaim for damages caused by the seller wrongfully and maliciously interrupting defendants’ business in retaking the goods is not a proper counterclaim, since it could not be anticipated.</p> <p>Set-Off and Counterclaim — Damages—Speculative or Remote— Recovery.</p> <p>6. The damages sustained by a buyer for the wrongful interruption of his business by the seller in retaking the goods are too speculative and remote to constitute a counterclaim in an action on the contra^ of sale for the stipulated damages from deterioration.</p> <p>Contracts — Mutuality.</p> <p>7. Where, under a contract reciting “that whereas * * first parties agree to furnish ’■ * a reasonable quantity of goods,” the first parties actually furnish the goods, the contract is not unenforceable for lack of mutuality on the theory that there is no express stipulation by the first parties to furnish the goods.</p> <p>Damages — Liquidated Damages or Penalties — Construction of Stipulations.</p> <p>8. While compensation to the party injured usually constitutes the measure of damages for a breach of contract, where the parties when making the contract anticipated the possible injury and fixed on a just and reasonable sum as liquidated damages, they may be recovered.</p> <p>Damages — Liquidated Damages or Penalties — Construction of Stipulations.</p> <p>9. A stipulation for liquidated damages cannot be construed as a penalty, when the court finds the actual damages to exceed the amount stipulated.</p>

From Grant: George E. Davis, Judge. This is an action by Napoleon Neal against Milos Roach. There was a judgment in the circuit court in favor of plaintiff, and defendant appeals. Plaintiff-respondent files motion to dismiss appeal.

<p>Appeal and Error — Transcript—Time of Filing — “Justification.”</p> <p>1. Where exception was taken to the sureties on appeal, and, hy consent, the justification was postponed from time to time and finally waived by respondents, the 30 days within which the transcript must be filed under Section 554, subd. 2, L. O. L., to prevent the appeal from being deemed abandoned began to run from the date of waiver of justification, which was equivalent to a “justification,” within Section 550, subd. 4, providing that from the expiration of the five days allowed to except to the sureties, or from the justification thereof, if excepted to, the appeal shall he deemed perfected, so that the transcript was filed in time, where filed pursuant to an order made during the 30 days so computed, extending the time for filing as authorized hy Section 554, subd. 2.</p> <p>Vendor and Purchaser — Bona Fide Purchasers — Records.</p> <p>2. One purchasing land and water rights, after the owner had relinquished certain water rights appurtenant thereto by a duly recorded deed, took no better title to the water rights than the owner had after the relinquishment.</p> <p>Waters — Prescriptive Rights — Adverse Character of Claim.</p> <p>3. To entitle the parties or privies to an agreement relinquishing and apportioning water rights to afterwards claim such rights hy adverse user, they must have made some affirmative assertion of ownership under a claim. of right, open, notorious,, and exclusive in character, which amounted to such an invasion of the owners’ title as would give them a cause of action.</p> <p>Waters — Irrigation Rights — -Action to Restrain Interference— Evidence.</p> <p>4. In a suit to enjoin interference with water rights, under a relinquishment of all rights in the waters of a stream, except an amount sufficient to irrigate plaintiff’s land, evidence held to show that 500 inches, in continuous use for a week at a time, would he sufficient to irrigate 100 acres of plaintiff’s land.</p> <p>Waters — Appropriation-—Amount Necessary.</p> <p>5. One is entitled to use water only in such quantities and at such times as may he reasonably necessary for some useful purpose, either existing or fairly contemplated in the future, and cannot waste water even for a useful purpose.</p> <p>Waters — Reservations—Mode of Use.</p> <p>6. Water may be used alternately by persons entitled to given quantities of the waters of a stream by 1 virtue of a reservation in a grant of waterrights.</p> <p>Waters — Relinquishment—Construction of Deed.</p> <p>7. An owner of land relinquished to certain persons any right he might have to the waters of a creek, excepting and reserving to himself so much of the water as shall he necessary for irrigating purposes at any time of the year on grantor’s land, and agreed for himself not to prevent grantees from using all of the waters, excepting the reservations. Held, that the grantees were only bound to permit a sufficient amount of water to flow down the creek past their intake for irrigating grantor’s land, and were not responsible to grantor or his assigns if it was used by others.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by John Tuohy against the Columbia Steel Company to recover for personal injuries resulting from the loss of an eye, sustained by plaintiff while working as a foreman in the molding department of defendant’s machine shop.

From Multnomah: William N. Gatens, Judge. Decided March 7, 1911. On Motion to Dismiss. [113 Pac. 852.] Statement by Mr. Justice Burnett. This is an action by M. A. Zelig against the Blue Point Oyster Co., a corporation, and Sam Mackin. Plaintiff recovered judgment in the circuit court, and defendants appeal.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by William T. Joplin and Charles Meeks, partners, doing business under the firm name of Joplin & Meeks, against the National Live Stock Insurance Association, a corporation, to recover upon a policy issued by defendant, insuring the life of a horse owned by plaintiffs.

From Multnomah: William N. Gatens, Judge.' This is an action by John A. Sanderson against the Peninsula Lumber Company, a corporation, to recover for personal injuries. There was a verdict in favor of defendant, and from an order granting plaintiff a new trial, defendant appeals. Further facts are stated in the opinion.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice McBride. This is a proceeding to escheat to the State certain unclaimed bank deposits, begun in accordance with Sections 7378, 7379 and 7380, which are as follows: “Section 7378.

From Yamhill: William Galloway, Judge. Statement by Me. Justice McBeide. This is a suit by C. T. Wright against Richard Chilcott and J. E. Anderson to have a trust in certain lands declared in favor of plaintiff.

From Columbia: James A. Bakin, Judge. This is a suit by F. W. Isherwood, A. F. Smith, Chas. A. Burckhardt, David L. Williams and William T. Muir, against Christine Salene, to enjoin defendant from draining and reclaiming certain lands upon which plaintiffs claim the right to hunt wild duck and other water fowl. From a decree in favor of plaintiffs, defendant appeals.

From Marion: William Galloway, Judge. Statement by Mr. Justice Burnett. This is a suit by S. H. Friendly to enjoin the Secretary of State from certifying to the county clerks the ballot title formulated by the Attorney General to be printed oh the ballot for the general election to be held in November, 1912, whereby the electors may vote on the referendum of House Bill No. 210 passed at the twenty-sixth regular session of the legislative, assembly.

<p>Appeal and Error — Review—Harmless Error.</p> <p>Under the direct provisions of Section 3, Article VII, Constitution of Oregon, as amended by Laws 1911, p. 7, a judgment, which apears to be such as should have been rendered in view of the entire record, will be affirmed, though errors appear therein.</p>

<p>From Union: John W. Knowles, Judge.</p> <p>Statement Per Curiam.</p> <p>The plaintiff, Maggie A. West, as administratrix of the estate of Herman C. West, deceased, brings this action to recover $2,000 upon a policy issued by the Mutual Life Insurance Company of New York, June 17, 1905, on the life of the decedent. He died February 3, 1906. Relying upon the admitted warranty of the assured that he would not die by his own act, sane or insane, during the period of one year next following the issuance of the policy, the defendant answered, in substance, that the decedent thus died within the time limit mentioned. A jury trial of the issue joined upon this answer as to the manner of his death resulted in a verdict for plaintiff for $93.64, being the amount of premiums paid and interest. From the consequent judgment the plaintiff appeals.</p>

From Baker: William Smith, Judge. Statement by Mr. Justice Burnett.

From Gilliam: David R. Parker, Judge. Statement by Mr. Justice Moore. This is an action by Arabella Staats, as administratrix of the estate of Mile Radmanovich, deceased, against Twohy Bros. Company, a corporation, to recover damages resulting from the intestate’s death, which was caused by an accident while he was in the defendant’s employment.