Volume 62 — Oregon Reports

<p>Counties — Action by Taxpayer — Recovery op Money Unlawfully Paid Officers — Parties.</p> <p>1. The district attorney is not a proper party defendant to a suit by taxpayers of a county to compel the deputy district attorney to repay to the county sums unlawfully allowed him by the county court as extra pay for services.</p> <p>District and Prosecuting Attorneys — Deputies—Salaries—Statutes.</p> <p>2. Under Section 2843, L. O. L., fixing the salary of the deputy district attorney at a specified sum per annum, the county court may not allow him extra compensation for services as district attorney.</p> <p>Counties — Charges—Prosecutions—Expenditures by Prosecuting Attorney.</p> <p>3. Expenses incurred by the deputy district attorney of a county in procuring testimony in criminal cases constitute a valid claim against the county for which he is entitled to compensation.</p> <p>Appeal and Error — Questions Reviewable — Pleadings.</p> <p>4. The court on appeal from an order sustaining a demurrer to the complaint must take the complaint as true.</p> <p>Counties — Unlawful Expenditure of County Funds — Actions by Taxpayers.</p> <p>5. Where an unlawful expenditure of money has been made by the officers of a county, and the proper authorities refuse to compel restitution, a taxpayer may by a suit on behalf of himself and others similarly situated recover the amount for the benefit of the county.</p>

From Union: John W. Knowles, Judge. Statement by Mr. Justice McBride. This is an injunction by George Miller against J. C. Henry, county judge, J. M. Selders and C. A. Galloway, county commissioners, Ed. Wright, county clerk, and John Frawley, as county treasurer and also individually. The facts are as follows: In the year 1908, John Frawley, treasurer of Union County, had on deposit in the Farmers’ & Traders’ National Bank of La Grande the sum of $21,146.31 of county funds.

<p>From Union: John W. Knowles, Judge.</p> <p>This is a suit by injunction brought by George Miller against J. C. Henry, county judge, J. M. Selders and C. A. .Galloway, county commissioners, Ed. Wright, county clerk, John Frawley, county treasurer, and F. P. Childers, sheriff. From a judgment sustaining a demurrer to the complaint and dismissing the suit, plaintiff appeals.</p>

From Gilliam: David R. Parker, Judge. Statement by Mr. Chief Justice Eakin. This is a suit by David Cantwell against W. L. Barker and Annie L. Barker, his wife, and H. C. Strickland.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Eakin. This is an action by J. P. Jaeger against Adolph W. Harr to recover $300, the amount of a partial payment made by plaintiff to defendant on the purchase of lot 17, in block 277, of Couch’s addition to the city of Portland, Oregon.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Jessie A. Miller and others against the city of Portland and others to enjoin the enforcement of an ordinance enacted by the council of the city of Portland, assessing upon the property of plaintiffs, and others within a specified district- the expense of improving what is designated in the proceedings in question as “Hall street from the east line of 14th street to its intersection with Heights Terrace, Heights Terrace from said intersection with Hall street to a place near College street where Heights Terrace intersects the west line of 16th street.”</p> <p>The motive reason of the contention of plaintiffs arises from the fact that the city engineer’s original estimate of the costs of the contemplated improvement upon which the council initiated the proceedings was $13,652, in pursuance of which a contract was let to a street-grading firm for $12,905.83, that being the only bid received ; whereas, owing to increases in excavation and in the size of a retaining wall required in the plan, which increases were ordered solely on his own motion by the city engineer, the cost of the completed project mounted up to $30,844. This result was obtained by computing the value of the work done according to what is called the “unit > system,” adopted both in the bid and in the contract, whereby the cost is calculated at so much per cubic yard of excavation or concrete or other item of requirements, so that the gross bid, as accepted, is not necessarily controlling as to the amount to be paid to the contractor- on the completion of the undertaking.</p> <p>The complaint challenged the jurisdiction of the council to inaugurate the proceedings to improve, attacked the action of' the city engineer in directing, on his own authority, an increase in the amount of work to be done, whereby the expense to be imposed upon the property holders in the taxing district was so greatly enhanced, and charged collusion between the city engineer and the contractors for that purpose. Professing, however, to do equity, the' plaintiffs, while maintaining that the action of the council was void ab initio for want of jurisdiction, averred that they were willing to abide by and pay a properly adjusted assessment equivalent in amount to the original estimate of the city engineer.</p> <p>The answer traversed the complaint in material particulars, and by affirmative matter detailed the procedure adopted and contended for its regularity.</p> <p>On the issue, joined by the reply, the circuit court heard the case, and taking the plaintiffs at their word, decreed, in substance, that the assessment for the, increased cost is void, and restrained the defendants from enforcing it, but authorized them to make a reassessment on the basis of an amount not exceeding the original estimate. The city appeals.</p>

<p>New Trial — Time of Hearing.</p> <p>Under Section 175, B. & C. Comp., as amended in 1907 (Section 175, L. O. L».), providing that a motion for a new trial shall be heard and determined during the term at which judgment is entered, unless the court shall continue the same, the court cannot hear a motion for a new trial after the term unless so continued.</p>

<p>Indictment — Motions to Quash — Grounds.</p> <p>1. Although when a person accused of crime voluntarily appears before the grand jury as a witness, the indorsement of his name on the indictment may not be required by Section 1429, L. O. L„ requiring the names of witnesses before the grand jury to be inserted at the foot of the indictment or indorsed thereon, such indorsement could not have prejudiced accused, and hence was not ground for quashing the indictment.</p> <p>Criminal Law — Evidence—Other OFPpNSEs.</p> <p>2. Although the state for the purpose of showing motive, may show that a person accused of arson had previously been charged by the prosecuting witness with the commission of another crime, it was reversible error to allow proof of the commission of such other crime.</p> <p>Criminal Law — Appeal—Review—Harmless Error — Improper Evidence — Error Cured by Instructions to Disregard.</p> <p>3. Although the withdrawal from the jury of evidence erroneously admitted may sometimes cure the error, such withdrawal must be so emphatic as to leave no doubt in the minds of the jurors as to the unequivocal repudiation by the court of such erroneous evidence, and even then it Will not always be held that the error was cured.</p> <p>Criminal JLaw — Trial Instructions — Comment on Evidence.</p> <p>4. An instruction that certain evidence in a case tended to prove accused's guilt should not have been given as it might have led the jury to believe that, in the court’s opinion, such evidence established his guilt.</p> <p>Criminal Law — Appeal—Review—Questions op Fact.</p> <p>5. A finding of a jury based on illegal evidence cannot be sustained, notwithstanding Section 3, Article VII, Constitution of Oregon, as amended by Laws 1911, p. 7, providing that no fact tried by a jury shall be otherwise re-examined in any court unless the court can affirmatively say that there is no evidence to support the verdict.</p> <p>Criminal Law — Appeal—Determination op Questions op Fact.</p> <p>6. The Supreme Court will not try a question of fact on appeal as it might do under the amended constitution where the evidence is wholly circumstantial and' the facts can be better determined by a jury.</p>

<p>Insurance — Fire Insurance — Proof of Loss — Estoppel.</p> <p>A fire policy provided that no officer or representative of the company should have power to waive any provision of the policy, except such as may be the subject of agreement indorsed thereon; and the policy also provided for sworn proof of loss. After the fire, the company’s agent and adjuster, who had sole authority to investigate and settle the loss, examined insured as to the cause of the fire, and received a schedule of goods destroyed or injured, and the agent finally agreed with plaintiff’s attorney to send a check, within 60 days, for a certain amount, if plaintiff agreed to accept that, sum as the value of the goods. The schedule of goods was upon a printed form, which recited that it should be considered as the preliminary presentation of the claim, and not the final proof, as provided for in the policy. Insured supposed that the whole matter was settled, and made no further proof of loss. Held, that the company was estopped from defending an action on the policy on the ground that insured did not make proof of loss within the required time.</p>

From Umatilla: Gilbert W. Phelps, Judge. Statement by Mr. Justice Burnett. This is a suit by Emma Zeuske, individually and as administratrix of the estate of Edward Zeuske, deceased, and George Edward Zeuske, a minor, by Emma Zeuske, his next friend, against August Zeuske and Wilhelmina Zeuske, is wife.

From Umatilla: Gilbert W. Phelps, Judge. Statement by Mr. Justice Bean. This is a suit by George W. Jones, as executor of the last will and testament of Madison Jones, deceased, against Charles Á. Hill and Margaret A. Hill, his wife, and John H. Dozier, to. foreclose a mortgage. From a decree in favor of defendants, plaintiff appeals.

<p>Waters—Pollution—Tailings Prom Mine—Contracts.</p> <p>1. Where decedent, a mineowner, requested complainants to abandon the line of their first survey of an irrigation ditch, and to construct a flume over decedent’s by-wash from the mine, extending the line of survey along a gravel bar on higher ground, so that decedent’s mining water and debris would not interfere with the ditch, to which complainants agreed, and in consideration thereof decedent granted a right of way for the ditch according to a new survey, and complainants built a flume across a slough, and extended the survey near the northerly sida of the slough to a point where the river from which water was obtained then flowed', and maintained the same until, by the shifting of the river, the flume and head of the ditch were washed away, together with a small bar at the head of the slough connecting it with the south channel of the river, complainants were bound to comply with the conditions of the arrangement to prevent the mining water from running into the irrigation ditch before obtaining relief in a court of equity as to such water.</p> <p>Waters — Pollution—Mining Water.</p> <p>2. Though a person located on a mining stream and operating a placer mine is entitled to a reasonable and proper use of the channel and the water, he has no right to dump his mining debris into the channel or stream and allow it to be carried down by the water to the land of a lower riparian proprietor, or to fill up the channel to the injury of such riparian proprietor.</p>

<p>Appeal and Error — Discretion op Court — Nunc Pro Tunc Order— Review.</p> <p>1. An order nunc pro tunc, correcting a record will not be disturbed on appeal, except for an abuse of discretion or absolute want of authority to make it.</p> <p>Appeal and Error — Orders Appealable — Nunc Pro Tunc Orders. 2. An order nunc pro tunc, correcting a record, is appealable.</p> <p>Appeal and Error — Questions Reviewable — Motion to Dismiss Appeal.</p> <p>3. An appellate court, on motion to dismiss an appeal from an order refusing to vacate a nunc pro tunc order correcting a record, will not try the merits of the controversy, or determine whether the court below abused its discretion, or lacked authority to make the nunc pro time order.</p> <p>Courts — Records—Amendment ai?d Correction.</p> <p>4. Every court of record has the inherent power to cause its proceedings to be correctly set forth in its records, and, whenever it is properly brought to the knowledge of the court that this was not done at the time of the proceedings, the court has authority to cause a record to be made in accordance with the facts.</p> <p>Judgment — Opening or Vacating — Power After Term.</p> <p>5. After the end of a term, the court’s power to vacate its judgment or decree can only be exercised in pursuance of Section 103, L. O. L., providing that the court may in its discretion, on such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment taken against him through mistake or neglect.</p> <p>Appeal and Error — Discretion of Lower Court — Vacating Judgment or Order.</p> <p>6. A motion to set aside the entry of an order nunc pro tunc extending the time for filing a transcript is addressed to the sound discretion of the court, and its action thereon will not be disturbed on appeal except for apparent abuse of its power.</p> <p>Courts — Records—Entries Nunc Pro Tunc.</p> <p>7. The object to be attained by a court in entering an order nunc pro tunc is to make the record speak the truth, and such order should be identical with the original and nothing should be added to or taken away from it.</p> <p>Appeal and Error — Decisions Reviewable — Nunc Pro Tunc Order.</p> <p>8. An order nunc pro tunc correcting a record is appealable.</p> <p>Appeal and Error — Piling Transcript — Extension of Time — Entries Nunc Pro Tunc — Stipulation.</p> <p>9. After plaintiffs had perfected an appeal from a decree dismissing their suit, a stipulation by the parties on January 30, 1911, allowing plaintiffs an extension of 30 days for filing the transcript on appeal, was filed in the circuit court, and on that date an order was made extending the time which was not then recorded, and on March 10, 1911, plaintiffs obtained an order from the circuit court directing that the order passed by the court on January 30, 1911, be entered as of that date. Held, on defendanats’ appeal from an order denying their petition for the vacation of the order of March 10 th, that the stipulation on file furnished a sufficient basis for the nunc pro tunc order.</p>

Decided March 26, 1911. On Motion to Examine Witnesses. . [114 Pac. 472.1 From Multnomah: Henry E. McGinn, Judge. This is a suit by LaFayette Grover and Elizabeth Grover against the Hawthorne Estate and Rachel Hawthorne. Respondents file motion to require affiants in the affidavits filed in this court on March 15, 1911, to appear before the clerk of this court for examination. Argued Feb. 8, decided March 5; rehearing denied June 4, 1912.

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice McBride. This is a suit by J. E. Hall, Jr., against George B. Dartt, N. B. Jordan and Mary P. Jordan, Humphrey Barton and Lillian Barton, and the Butler Banking Company, and was brought to foreclose a laborer’s lien, incurred in clearing a tract of land in Hood River County.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Bean. This is a suit by the Terwilliger Land Company against the City' of Portland, the Oregon Hassam Paving Company, a corporation, and The Title Guaranty & Surety Company, a corporation. The circuit court sustained a demurrer to the complaint, and from a decree entered dismissing the suit plaintiff appeals.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice McBride. This is an action by Ben C. Ely against Louis J. Wilde to recover for commissions alleged to have been earned under a contract to sell for defendant the bonds and stock of certain telephone corporations.

<p>Divorce — Grounds—Misconduct as Justifying Desertion.</p> <p>1. That a husband, a few days after marriage, said jokingly to a friend, “I paid $8 for this thing (meaning defendant), $5 to the minister and $3 for the license,” and that on a warm day, while on an excursion, he objected to the wife’s suggestion that a case of beer be obtained, on the ground that he did not want the beer drunk in the presence of the children, did not constitute such misconduct as justified the wife in deserting him.</p> <p>Pleading — Waiver of Objection — Withdrawing Demurrer Before Answer.</p> <p>2. Under Section 72, L. O. L., which declares that, if no objection to the complaint be urged by demurrer or answer, the defendant shall be deemed to have waived it, misjoinder of causes of action is waived by his withdrawal of a demurrer before filing answer.</p> <p>Trusts — Resulting Trusts — Relation Between Parties — Husband and Wife.</p> <p>3. A husband obtained an option on land, his wife agreeing to advance $1,000 to pay on the option, and they were to make the purchase together and after repayment of the amount advanced all profits above that amount were to be divided between them. The option and deed were made in the name of the wife. Held, that the husband on obtaining a divorce could enforce a resulting trust in the land subject to the wife’s lien for one-half of the money advanced.</p> <p>Divorce — Conclusiveness on Party Pleading.</p> <p>4. Where a husband, in his action for divorce, asked to be adjudged the owner of a one-half interest in land purchased with his own money and money advanced by the wife, with the understanding that the wife’s advance was to be a lien on the lands, plaintiff is bound by the pleadings, and hence a decree fixing the amount of the wife’s lien at less than one-half the money advanced will be modified to conform thereto.</p> <p>Pleading — Appeal—Review—Piling of Reply After Case Heard.</p> <p>5. An order of the trial court, permitting a reply to be filed áfter the case had been tried upon the theory that a reply had been filed, was within its discretion.</p>

<p>From Hood River: William L. Bradshaw, Judge.</p> <p>This is a suit to cancel, for fraud, a deed from plaintiff to the appellant, W. L. Diel, conveying certain lands in Hood River County, and for damages in the sum of $4,800, that sum representing the value of the lands conveyed, but later disposed of by Diel to innocent third parties prior to the bringing of this suit. There was a decree in the court below in favor of plaintiff as prayed for, and defendants appeal.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Burnett. This is an action by John Clark against the city of Portland to recover the value of certain property appropriated by the city in extending and widening certain streets.

<p>From Wallowa: John W. Knowles, Judge.</p> <p>Syble Gilliam was convicted of unlawfully selling intoxicating liquor, and she appeals.</p>

<p>Criminal Law — Instructions—Presumption of Innocence — Reasonable Doubt.</p> <p>In a prosecution for unlawfully selling intoxicating liquors, an instruction that the accused is presumed innocent until the contrary is proven, and, in case of a reasonable doubt, he is entitled to be acquitted, was not erroneous.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Burnett. This is a suit by Douglas W. Bailey against William Frazier to declare a deed absolute in form to be a mortgage; to compel an accounting for the rents and profits collected by the defendant while in possession of the lands involved; and to compel a reconveyance to the plaintiff.

<p>Appeal and Error — Record—Questions—Findings—Conclusiveness.</p> <p>1. Where there is no bill of exceptions in the record, the court on appeal must, as required by Section 159, L. O. L., take the findings of ‘the court as a verdict.</p> <p>Appeal and E*rror — Record—Rulings on Evidence — Bill of Exceptions.</p> <p>2. Error in the admission or exclusion of evidence in a cause tried by the court without a jury can only appear by bill of exceptions.</p> <p>Appeal and Error — Record—Questions Reviewable — Conclusions of Law.</p> <p>3. Where there is no bill of exceptions in the record on appeal in a cause tried by the court without a jury, the court on appeal can only consider whether the conclusions of law deduced from the facts found are correct.</p> <p>Indemnity — Construction of Contracts — Liability.</p> <p>4. An agreement by stockholders to hold a purchaser of their stock harmless from claims for damages by trespass growing out of the management of the corporation by the sellers, and an agreement by the purchaser to hold a buyer from him harmless from claims growing out of his management of the corporation since he took charge thereof, relate to different matters, and there is no privity of contract between the original sellers and the ultimate buyer, and the liability of the original sellers to their purchaser must result, if at all, from their contract and for damages visited on him as a consequence of something to which the agreement was subsidiary, and such liability is not measured in any degree by the subsequent agreement between the intermediate purchaser and the buyer from him.</p> <p>Contracts — Construction.</p> <p>5. The scope and effect of a contract must be determined by its own terms.</p> <p>Indemnity — Contracts—Construction.</p> <p>6. Holders of all the stock of a corporation, to induce a purchaser to buy their stock, agreed to hold him harmless from claims for damages arising out of the management of the corporation by them. Subsequently the purchaser agreed to hold a buyer from him harmless from any claims for damages from corporate management since he took charge. Prior to the subsequent agreement, judgment had been rendered against the corporation' based on claims arising under the original management. The original sellers unsuccessfully defended the action against the corporation on such claims. Held that, though the judgment was, under Section 756, subd. 2, L. O. L., conclusive between the parties and their representatives and successors in interest by title subsequent to the commencement of the action, the intermediate purchaser, having disposed of his entire interest in the corporation before satisfying the judgment, could not recover on the agreement with the original sellers, in the absence of any showing that he sold for less than he paid for the stock, or that he was not fully reimbursed for all expenses in the purchase thereof, or that any claim was made against him individually on account of the damages resulting in the judgment, or that he had been compelled to pay anything by reason of his relation with the corporation as covered by the agreement with the original sellers.</p>

<p>Adverse Possession — Nature of Possession — Initiation.</p> <p>Where plaintiff’s predecessor in title took possession of certain land in controversy under an agreement with defendants’ ancestor that the latter might include the land which was a part of his donation claim in his inclosure at any subsequent time, and plaintiff’s grantor did not include the land in his conveyance, and nothing was done to improve the same, there was no adverse possession.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by Hugh C. Gearin and Walter J. Gearin, partners, against the Portland Railway Light & Power Company, a corporation. The facts upon which respondent’s motion to dismiss the appeal is based, are as follows:</p> <p>On March 8, 1910, the jury, in the trial of this action, in the circuit court, returned a verdict for the defendant, upon which judgment was rendered the same day. On March 18, 1910, whether by leave of court or otherwise does not appear, the plaintiff filed a motion for new trial on the ground of: (1) Irregularity in the procedure of the court in calling the j ury into the courtroom,. and instructing them as to the law, in the absence of and without notice to counsel for either party; (2) insufficiency of the evidence to justify the verdict, and that it is against law; (3) error in instructing the jury as to the law in manner excepted to by the plaintiffs; and (4) error in law in the refusal of the court to instruct the jury as requested by the plaintiffs. Whether the motion was continued for want of time to hear it does not appear.; but at a subsequent term, to wit, on July 2, 1910, it was argued and taken under advisement, and at a still later term of the court, on November 17, 1910, was overruled. On December 27, 1910, the plaintiffs served a paper, whereby the defendant was notified that the plaintiffs appealed “from the judgment entered on the 8th day of March, 1910, and to set aside which judgment and for new trial a motion was filed in the above-entitled action in the above-entitled court on March 18, 1910, which motion was not decided by the said court until November 17, 1910, when the court denied said motion and refused plaintiffs a new trial.” The undertaking for appeal was filed on the same day, and the transcript was lodged in this court January 18, 1911. The defendant moved to dismiss the appeal, for the reason that it appears from the record that the appeal had not been taken within the time and in the manner required by law, “particularly in this: That said appeal has not been taken within six months from the date of the entry of the judgment appealed from, to wit, within six months from March 8, 1910, but that, on the contrary, said appeal was not taken or perfected until December 27, 1910.”</p>

From Multnomah: John S. Coke, Judge. Statement by Me. Justice Bubnett.

<p>From Multnomah: . Robert G. Morrow, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is an action by The J. K. Armsby Company, a corporation, plaintiff and appellant, against Grays Harbor Commercial Company, a corporation; Northwestern Lumber Company, a corporation; Standard Box & Lumber Company, a corporation; Star Box Company, a corporation ; Multnomah Lumber & Box Company, a corporation; Multnomah Trunk Company, a corporation; Astoria Box Company, a corporation; Clatsop Mill Company, a corporation; Necanicum Spruce Lumber Company, a corporation; Davidson Fruit Company, a corporation; F. W. Morse Manufacturing Company, a corporation; Columbia Box & Lumber Company, a corporation; Pacific Box Company, a corporation; The Fidalgo Mill Company, a corporation; Washington Mill Company, a corporation; Queen City Manufacturing Company, a corporation; National Box & Lumber Company, a corporation; H. L. Bennett, A. A. Courteney, and Northern Box Manufacturers’ Agency, defendants and respondents, who were joint parties in the organization of a commercial agency to recover damages for failure of the agency to deliver contracted goods. Fourteen of the defendants, as principals, being corporations engaged in the manufacture of boxes and box materials, in March, 1902, formed an association and entered into an agreement among themselves to maintain an agency at Portland, to be known as “Northern Box Manufacturers’ Agency,” for the purpose of facilitating the sale of boxes and box materials manufactured by them, and appointed A. A. Courteney as its general agent and manager. On March 3, 1906, the agency entered into an agreement with plaintiff, a corporation, engaged in packing fruit in California and Washington, by which plaintiff agreed to purchase all box materials used by it from the Northern Box Manufacturers’ Agency for the term of three years, and the agency agreed, for that period of time, to fill all orders promptly, namely, within ten days from the time the orders were received, at prices named, and plaintiff to pay for the same within ten days after the arrival of the shooks. The complaint states that defendants executed the contract in part, but alleges that it failed to deliver large numbers of boxes ordered, and that on October 13, 1906, gave plaintiff notice that it canceled the contract, and alleged that $8,946.76, due defendants for goods delivered, was retained by it to indemnify it against damages by reason of defendants’ failure to deliver all the materials ordered. It also alleges that it has been damaged by defendants’ default in the sum of $58,233.91 by reason of the increased price it was required to pay in the open market for shooks required by it, on account of defendants’ failure to fill orders during the years 1906, 1907, and 1908.</p> <p>Seventeen defendants are named in the complaint, but service was had upon five, namely: Multnomah Box & Lumber Company, Astoria Box Company, Davidson Fruit Company, Standard Box & Lumber Company, and A. A. Courteney. Each answered separately, denying that the agency had any authority to make contracts for the defendants jointly; that plaintiff rescinded and annulled the contract on October 12, 1906; that plaintiff had violated the contract in neglecting and refusing to pay the agency the amounts due for shooks received by it, namely, in the amount of $8,946; and that, on account of such failure of plaintiff to pay the sums due, the agency, on its own behalf and that of its principals, rescinded the contract. The Multnomah Box & Lumber Company further denies that it was a party to or member of the agency. It seems that plaintiff was in default of payment for shipments made in June, July, August, and September, though frequently demanded; and on October 13, 1906, the agency wired plaintiff as follows:</p> <p>“Oii account of your failure to pay for shooks shipped in accordance with provisions of contract, we hereby notify you, no further shipments will be made and that the contract is rescinded.”</p> <p>This telegram is confirmed by a letter of the same date. On the day previous (October 12th), plaintiff wrote to the agency as follows, the envelope being postmarked October 13th:</p> <p>“Replying to your letter of October 1st and your wires of October 10th and 12th reading, respectively: ‘Need money badly eight thousand overdue, have you remitted or when will you ? Answer immediately’ and ‘Please give me reply to my telegram of tenth inst. and letter of first.’ We beg to say that we have not made remittance, and that the situation in which you have placed us is a very serious one. * * The J. K. Armsby Co. is ready and able at all times to absolutely live up to the letter and spirit of every agreement and contract it makes, and has lived up to and is willing even now to maintain this agreement which you have so flagrantly broken, if you can give us a satisfactory guarantee, that the shipments due, and the order placed herewith, will be from now on, delivered in accordance with the terms of the contract, but unless you can and do give us such satisfactory assurance for the future faithful performance of this agreement and immediate shipment of all unfilled orders and order placed herewith, we most respectfully decline to make any further payments thereunder and hereby notify you that unless you comply with our requirements aforesaid, that having broken your contract with us by your failure to live up to and carry out the terms thereof, we shall consider the contract at an end and hold you liable,” etc.</p> <p>The case was tried before a jury, and at the close of plaintiff’s evidence each defendant moved for a judgment of nonsuit, which motions were granted by the court.</p>

<p>Highways — Location—Petition—“Locate and Establish" — “Lay Out."</p> <p>1. A petition for a highway was not objectionable, because it prayed that the court “locate and establish” a road, instead1 of asking to have the road “laid out” ; the term “laid out” being colloquial, meaning “to plan in detail,” while “to locate” is to define the limits, to establish in a particular place, and, in a road proceeding, is as comprehensive as “lay out”- — the term “lay out” expressing the work to be done by the viewers in establishing on the ground the lines and angles of the road.</p> <p>Highways — Establishment—Petition—Description.</p> <p>2. Section 6282, L. O. L., provides that the county road viewers shall locate all county roads on the best and easiest grades obtainable between the beginning and ending points described in the petition for a public highway; the viewers being entitled to deviate from the line described in the petition, where it will avoid steep grades and will locate the road on better ground, but should follow the directions in the petition as nearly as practicable. Held, that the viewers are given discretion to locate the road between the point of beginning and the point of termination ; and hence, where a petition definitely described the points of beginning and termination, it was not fatally defective, because the intermediate points were not definitely stated, and were not definitely adhered to by the viewers.</p> <p>Highways — Establishment—Proceedings—Order—Jurisdiction.</p> <p>3. Section 6288, L. O. L., provides that the county court, on receiving the .report of viewers in highway proceedings, if no remonstrance or •petition for damages are filed, shall cause the report to be recorded, and the road from thenceforth shall be considered a public highway. Held that, where a remonstrance is filed or a claim for damages is made, the court cannot make a final order until the claim or remonstrance is disposed of; and, where claimant appealed from the award of damages in such proceedings, the appeal suspended- the making of the final order for opening the road without any order of continuance, so that, pending such appeal, the court did not lose jurisdiction to make the final order by the expiration of the term.</p> <p>Highways — Establishment—Notice—Posting-—Proof.</p> <p>4. Where an affidavit of the posting of notices in highway proceedings was contained on one sheet and referred to a copy of the notice as annexed thereto, and the next sheet in the record was the notice, the proof was not objectionable, on the ground' that the affidavit of posting was indorsed on the petition and did not identify the notice.</p> <p>Highways — Proceedings—Notice—Posting—Time.</p> <p>5. Where an affidavit of the posting of notice of an application to establish a highway alleged that the notices were posted on the 30th day of January, 1910, which was more than 30 days prior to the date on which the petition was to be presented to the court, it sufficiently complied with the requirement that the notices should be posted 30 days before presentation of the petition.</p>

From Sherman: David R. Parker, Judge. Statement by Mr. Chief Justice Eakin. This is a proceeding brought to the circuit court by petition for review by George W. Pickard' and H. Laughter, copartners doing business under the firm name of Pickard & Laughter, against J. Marsh, justice of the peace and George N. Crossfield. The only errors relied upon relate to the attachment of personal property and the order for the sale thereof.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Burnett. This is an action by Sam Manerud and Edward Quinn, copartners as Manerud & Quinn, against the city of Eugene. It is admitted by the parties that the contract mentioned in the complaint was entered into between the plaintiffs’ assignor and the city of Eugene.

From Wallowa: JOHN W. KNOWLES, Judge. The defendant, Robert Friddles, was convicted of the crime of rape, and from the resulting judgment and sentence, he appeals.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Moore. This is an action to recover money.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Bean. This is a suit by T. A. Pippy and J. D. Bisbrow, partners, doing business Under the firm name of Pippy & Bisbrow, against J. S. Winslow to foreclose a mechanic’s lien.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Moore. This is an action by I. H. Taffe against Sidney Smyth and W. N. Jones, partners as Smyth & Jones, to recover money.

From Wallowa: John W. Knowles, Judge. The defendant, J. W. Isley, was convicted of unlawfully selling intoxicating liquors, and from the judgment resulting from said conviction, he appeals.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Moore.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Moore. This is an action by George Perry against W. B. Hunt and W. Hunt, copartners as Hunt & Son, to recover compensation for the use of machinery, tools, etc., and damages for an alleged breach of an agreement.

<p>Pleading — Defenses—Necessity of Pleading.</p> <p>1. A defense, not pleaded, canont be urged.</p> <p>Sales — Actions for Breach — Remedy of Buyer.</p> <p>2. A seller of liops cannot excuse his non-performance by proof that the hops raised were of a quality inferior to that stipulated for in the contract; the buyer having his option to accept such hops in satisfaction of the contract.</p> <p>Trial — Instructions—Applicability to Pleadings.</p> <p>3. A contract for the sale of hops from a specified farm stipulated, that a previous contract was to be satisfied first. The seller failed to perform, and, on suit by the buyer, set up in avoidance the buyer’s failure to comply with his agreement to make advances. Held that, the seller having failed to plead as an excuse for non-delivery the delivery of the hops on the first contract, an instruction authorizing a verdict for the buyer, unless he failed to make the stipulated advances, was correct.</p> <p>Appeal and Error — Review—Harmless Error.</p> <p>4. Where a verdict was for $2,200, an error involving about $20 is so insignificant that it will not be considered.</p>

<p>Intoxicating Liquors — Defense—evidence—Admissibility.</p> <p>1. In a prosecution for the -unlawful sale of intoxicating liquors in a local option district, where it appeared that the two accused had been licensed to conduct a place for the sale of soft drinks, and the license was ambiguous as regarded the location, testimony as to the exact location and the name of the resort was admissible.</p> <p>Criminal Law — Appeal—Harmless Error.</p> <p>2. In a prosecution for the sale of intoxicating liquors, where it appeared that a license to conduct a place for the sale of soft drinks had been issued to accused, testimony that no additional license had been issued at the time of the offense was not prejudicial.</p> <p>Criminal Law — Appeal—Review.</p> <p>3. Under Section 3, Article VII, of the Constitution, as amended November 8, 1910 (Laws 1911, p. 7), providing that no fact tried by a jury shall be otherwise re-examined, unless the court can affirmatively say there is no evidence to support the verdict, a conviction for the unlawful sale of intoxicating liquor will not stand, where there was no competent testimony to show that accused was connected with the sale.</p> <p>Intoxicating Liquors — Offense—Evidence—Sufficiency.</p> <p>4. In a prosecution for the unlawful sale of intoxicating liquors, evidence held sufficient to support a conviction.</p> <p>Criminal Law — Appeal,—Findings—Evidence.</p> <p>5. Where, in a trial for the unlawful sale of intoxicating liquor, a finding that the relation of principal and agent existed between the defendant and another was supported by some evidence, it will not be disturbed on appeal.</p>

<p>Statutes — Enactment — Submission to Popular Vote — Petition — “Legally Sufficient.-”</p> <p>1. Under Section 3474, L. O. L., providing that the court, on a showing that any petition for a referendum is not legally sufficient, may enjoin the Secretary of State and all other officers from certifying or printing the title and number of the measure on the official ballot, the petition, to be “legally sufficient,” must be a valid petition, signed by legal voters, and compl3Ting substantially with the requirements of the law; and, although a petition appears regular on its face, the* court may inquire into iis legal sufficiency.</p> <p>Constitutional Law — Distribution of Governmental Powers — Judicial Functions.</p> <p>2. The filing of a petition for a referendum is not a legislative act, but merely a matter preliminary to the legislative act; and hence an investigation into its sufficiency is not beyond the jurisdiction of the courts.</p> <p>Statutes — Enactment—Submission to Popular Vote — Petition.</p> <p>3. Section 3472, L. O. L., referring to initiative petitions, provides that every sheet for petitioners’ signatures shall be attached to a full and correct copy of the title and text of the measure; that referendum petitions shall he attached to a full and correct copy of the measure; and that all petitions for the initiative or referendum “and sheets for signatures” shall he printed on pages of a specified size. Held, that it is not necessary that each referendum petition have printed thereon the form of petition provided by the act, and a full copy of the title and text of the measure proposed, but that several referendum petitions may he attached to one full and correct copy of the measure.</p> <p>Statutes — Enactment—Submission to Popular Vote — Petition.</p> <p>4. Where referendum petitions contain evidence of forgeries, perpetrated either by the circulators, or with their connivance, the prima facie case in favor of the genuineness of the petitions is overcome; and the burden is on those upholding the validity of the petition to establish the genuineness of each signature.</p> <p>Statutes — Enactment—Submission to Popular Vote — Petition.</p> <p>5. It is the duty of the circulator of a referendum petition to see that the proper address of the signers thereto is placed on the petition.</p>

From Clackamas: Jambs U. Campbell, Judge. Statement by Mr. Justice Bean. This is an action by John Kopacin against the Crown-Columbia Pulp & Paper Co., a corporation, for damages. The facts are as follows: At the time of the injury complained of, plaintiff was engaged in operating a “wet machine” for defendant in its paper mill at Oregpn City. This machine consists, in part, of two large revolving cylinders or rollers, between which the pulp passes and is compressed.

<p>Appeal and Error — Weight op Evidence.</p> <p>1. The weight and value of the evidence was for the trial court, in an action at law tried without a -jury.</p> <p>Evidence — Competency.</p> <p>2. Evidence is not incompetent merely because it is weak.</p> <p>Fraud — Action for Damages — Sufficiency of Evidence.</p> <p>3. In an action for damages from being induced by fraud to part with property in exchange for worthless bonds, evidence that interest coupons had been detached from the bonds, to corroborate defendant’s false statement that the interest was always promptly paid, sustained a finding that defendant knew the bonds to be of no value.</p> <p>Election of Remedies — Finality of Election.</p> <p>4. Where, in attempting to make an election, one commences an action in ignorance of substantial facts which proffer an alternate remedy, his action is not binding, but, when informed, he may adopt the other remecty, provided he acts with reasonable dispatch.</p> <p>Judgment — Res Ad judicata.</p> <p>5. Where plaintiff’s action in equity to rescind a sale contract for fraud was objected to by defendant as not being the proper remedy, and a non-suit taken, defendant could not set up such action in bar of plaintiff’s subsequent action for damages from such sale.</p> <p>Estoppel — Position in Judicial Proceedings.</p> <p>6. Counsel cannot induce the court to adopt an erroneous rule when it operates in his favor, and be heard to object to the application of the same rule when it militates against him.</p> <p>Appeal and Error — Decision.</p> <p>. 7. Under Section 3, Article VII, of the Constitution, as amended (Laws 1911, p. 7), the Supreme Court will affirm a judgment which it deems correct, notwithstanding any error committed during the trial.</p>

From Clackamas: James U. Campbell, Judge. Statement by Mr. Justice Moore. This action was instituted by Mrs. L. E. Dose against R. B. Beatie to recover damages.

<p>From Jackson: Frank M. Calkins, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by Marie H. Vance and David L. Vance, as guardian of Albert S. Vance, a minor, against Fred J. Blakeley, the Sterling Mining Co., a corporation, the Merchants Investment & Trust Co., trustee, a corporation, and T. N. Barnsdall to foreclose the equitable interest of the vendee in a contract for the sale of certain mining properties in Jackson County, Oregon, known as the Sturgis mining property. From a decree in favor of plaintiffs, defendants appeal.</p> <p>On September 20, 1906, the contract was executed by plaintiff Marie H. Vance, to defendant Jefferson D. Heard. At that time Mrs. Vance was the owner of an undivided nine-sixteenths, and Albert S. Vance, her minor child, the owner of seven-sixteenths, of the real and personal property embraced in the contract. By the terms of the contract, Marie H. Vance agreed to sell to Jefferson D. Heard, or to his assigns, all the mining property described in an exhibit attached to the complaint, for the sum of $50,000; by the payment of $25,000 on or before December 20, 1906, and the balance on or before December 20, 1907, without interest; or at his option, by the payment of $20,000 on or before December 20, 1906, $20,000 December 20, 1907, and $10,000 December 20, 1908, with interest at 6 per cent per annum, payable annually, upon all deferred payments, after the date of the first payment. The option to make payments according to the latter method was exercised by defendants. Mr. Heard agreed to deposit $250 in the Jackson County Bank, at Medford, Oregon, within five days from the date of the agreement; such sum to be forfeited if he failed to pay the first installment. This was never so deposited. The contract was executed in triplicate. The original was to be left at the Jackson County Bank, which was authorized to receive payments thereunder, and, upon payment in full, to deliver the deeds to Heard or to his assigns. Jefferson D. Heard was the manager of the Sterling Mining Company, and Fred J. Blakeley, president of such corporation. It appears that the purchase money was furnished by T. N. Barnsdall of Pittsburg, Pennsylvania, for whom defendants Heard and Blakeley acted. The following payments were made upon the contract: December 10, 1906, $5,000; February 8¿ 1907, $15,000; March 3, 1908, $2,500; March 4, 1909, $1,000; July 30, 1909, $5,000 — total $28,500, leaving a balance of $26,-347.85, including interest to date of trial. By the terms of the contract, .Mrs. Vance agreed to cause a guardian to be appointed by the county court of Jackson County, to represent the interest of Albert S. Vance, the minor, and as soon as proceedings could be taken authorizing such guardian to execute a deed conveying the interest of the minor, to have that deed, together with the deed of Mrs. Vance, placed in escrow in the bank for delivery upon final payment. In the event that the first installment of the purchase price was paid before the guardian’s deed was so deposited, such payment should remain in the bank until the deposit was made. It was expressly provided that time should be of the essence of the contract as to the payment of each installment. Upon default, the vendor should have the right to take possession of the property, and all sums paid by the party of the second part or his assigns should be immediately forfeited. The contract of sale was afterwards assigned by Jefferson D. Heard to Fred J. Blakeley, who states that he holds the same as truetee for defendant T. N. Barnsdall. This defendant answered, denying many of the allegations of the complaint, and affirmatively alleging that plaintiff Marie H. Vance failed to procure any conveyance of the interest of the minor, Albert S. Vance, except a, void deed to F. J. Blakeley; and that the deed by David L. Hyatt, guardian of such minor, was made at a pretended private sale of the estate of the minor, without authority of law.</p>

From Tillamook: Henry L. Benson, Judge. Statement by Mr. Justice Bean. This is an action in the nature of quo warranto, brought by the State upon the relation of S. V. Anderson and Lillian Anderson against H. T. Botts, A. G. Beals, D. Fitzpatrick, James Walton, Jr., M. F. Leach, and the Port of Tillamook, to determine the right of the defendants to act as a municipal corporation. From a judgment in favor of defendants, plaintiff appeals.

From Tillamook: Henry L. Benson, Judge. Statement by Mr. Justice Bean. This is a suit by W. H. Leach and Eva M. Leach against the Port of Tillamook, H. T. Botts, A. G. Beals, D. Fitzpatrick, James Walton, Jr., and M. F. Leach to remove a cloud upon title to real estate, created by the officers of the defendant port levying a tax, and to enjoin such proceedings. The circuit court sustained a demurrer to the complaint and dismissed the suit. Plaintiffs appeal.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Chief Justice Bakin. This is a suit by the Little Walla Walla Irrigation Company, a corporation, and others, against the Finis Irrigation Company, a corporation, and others.

From Multnomah: JOHN P. KAVANAUGH, Judge. Statement Per Curiam.

<p>Wills—Testamentary Capacity—Insanity.</p> <p>1. Not every degree of insanity of a testator will vitiate a will, and though he be enfeebled, physically and mentally, if he can understand, at the time of the execution of the will, what he is doing, has a knowledge of his property, and how and to whom he wishes to dispose of it, and remembers those who have claims on his bounty, he is of sufficient testamentary capacity.</p> <p>Wills—Testamentary Capacity—"Delusion.”</p> <p>2. A delusion of a testator which will render him of insufficient testamentary capacity to execute a will must be the spontaneous product of the subjective processes of a disordered intellect, inducing a belief without any support in extrinsic evidence; and a mere error in judgment upon proven or admitted facts does not constitute a “delusion,” however much it may be at variance with the conclusion reached by unprejudiced minds from tfie same facts.</p> <p>Wills—Testamentary Capacity.</p> <p>3. In an action to contest a will, evidence held sufficient to render beliefs of the testator, in regard to the effect of medical treatment of a doctor upon his wife, and as to his relations with his wife and daughter, conclusions, rather than delusions.</p> <p>Wills—Testamentary Capacity.</p> <p>4. In an action to contest a will, evidence held to show that at the time of the making of the will testator had sufficient testamentary capacity to make it.</p> <p>Wills—Testamentary Capacity—Sufficiency at Time of Codicil.</p> <p>5. Although a testator may not have been of sound and disposing mind or memory, or may have been laboring under a delusion at the time he made a will, a subsequent codicil, which did not disturb any bequest, but merely gave directions as to how a portion of the estate bequeathed should be distributed in case the devisee predeceased the testator, amounts to a republication of the will; and the sufficient testamentary capacity of the testator, at that time would free the entire will from any taint which it may have received at the time of its making.</p> <p>ON REHEARING.</p> <p>Jury—Right to Trial by Jury—Constitutional .and Statutory Provisions.</p> <p>6. The act respecting wills of September 26, 1849 (Laws 1850-51, p. 274), provided that any person interested in the probate of a will might appear within five years after its probate and by petition to the district court contest its validity, the issue to be tried by jury. By section 8 of an act establishing a probate court, effective May 31, 1853, original jurisdiction of the probate of wills was given to the judge of probate, Section 23 provided that any person aggrieved might appeal to the district court; and section 30 provided that that court, at its discretion, might cause any question of fact to be tried by a jury. On December 15. 1853, the provisions of these two acts were re-enacted. Article T, Section 17, Constitution of Oregon, provides that in all civil cases the right of trial by jury should remain inviolate. Article XVlll, Section 7, continued, until altered or repealed, all territorial laws then in force not inconsistent with the constitution. Held, conceding that the act of December 15, 1853, was valid, and that the right of trial by jury thereunder was continued by the constitution, such right only exists in an original proceeding commenced in the circuit court as the successor of the territorial district court, and is not demandable as of right in proceedings commenced in the county court and appealed to the circuit court.</p> <p>Courts — Probate Jurisdiction — Constitutional and Statutory Provisions.</p> <p>7. The act of December 15, 1853, so far as it conferred authority on district courts to take probate of wills, was void as conferring on that court jurisdiction not given by the act of Congress of August 14, 1848, c. 177, Stat. 323, establishing the territorial government of Oregon, section 9 of which created district and probate courts, invested the district courts with the same jurisdiction exercised by circuit and district courts of the United States, and which act also provided that any territorial laws inconsistent therewith should be null and void.</p> <p>Courts — Probate Jurisdiction — Constitutional and Statutory Provisions.</p> <p>8. If the act of December 15, 1853, was valid, it was an expansion of the common-law rule regarding trial by jury, and could be repealed, in view of Article XVIII, Section 7, Constitution of Oregon, continuing territorial laws in force until repealed, and was so repealed by Section 936 L. O. L., granting exclusive jurisdiction to the county court to take proof of wills, and section 1135, providing that such jurisdiction should be exercised in the same manner as in suits in equity.</p> <p>Wills — Courts Invested With Probate Jurisdiction.</p> <p>9. The county court has exclusive and superior jurisdiction in probate of wills.</p> <p>Jury — -Right to Trial by Jury — Constitutional Provisions — "Civil Cases.”</p> <p>10. Probate proceedings are not “civil cases,” within Article I, Section 17, Constitution of Oregon, providing that the right of trial by jury in all civil cases shall remain inviolate, especially in view of Article VII, Section 12, relative to the jurisdiction of county courts, expressly recognizing a dstinction between probate jurisdiction and civil jurisdiction.</p> <p>"Wills' — Probate Proceedings — Statutory Provisions.</p> <p>11. Section 1135, L. O. L., providing that the mode of proceeding in. probate matters shall be the same as in suits in equity, applies to proceedings to set aside a probate, as well as the proof of a will in common form, tlie object of the proceeding in either case being the proof of the will.</p>

From Multnomah: John B. Cleveland, Judge. Statement by Mr. Justice Burnett. This is an action by Henry Cerrano, as administrator of the estate of Cesare Cerrano, deceased, against the Portland Railway, Light & Power Company, a corporation, for alleged negligence in causing the death of plaintiff’s intestate. At the time mentioned in the complaint, the defendant was operating a street railway in the city of Portland.

From Grant: George E. Davis, Judge. Statement by Mr. Justice Bean. This is a suit commenced by George Austin Bowsman, a minor, by Arizona McLellan, his guardian ad litem, in the circuit court for Grant County, against George W. Anderson and F. S. Slater, to set aside a judgment and deed as a cloud upon his title to certain real property, on the ground that the apparent title of the defendants is fraudulent and void. From a decree in favor of defendants, plaintiff appeals.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Burnett. This is a suit by Lizzie C. Davison against John B. Davison to set aside certain conveyances of real property made by the plaintiff to the defendant.

From Marion: William Galloway, Judge. Statement by Mr. Justice McBride. This is an application by Leroy Browne against Elizabeth Coleman and others, under Sections 7179 to 7285, L. O. L., to register title to certain lands situated in Marion County. The question as to the title to this identical property was litigated in the case of Smith v. Whiting, 55 Or. 393 (106 Pac. 791), which was an action of ejectment.

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit by the Scott-McClure Land Co., a corporation, against the city of Portland and J. E. Werlein, as treasurer of said city, to restrain the defendant city from selling lot 16 in block 7 in North Irvington, in the city of Portland, for a delinquent street assessment. Plaintiff alleges that on June 14, 1906, there was duly entered and docketed in the city lien docket of Portland a lien and assessment against the property above mentioned for the improvement of East Eleventh street. On November 26, 1906, the owner of the property having failed to pay such assessment, it was duly offered for sale, and bid in by plaintiff for $139.82. A certificate of sale was issued to him, and on March 28, 1910, no redemption having been made, the city treasurer executed to plaintiff a deed to the property. On August 10, 1905, prior, to the levying of the assessment, there was entered in the city lien docket a lien and assessment against such property for the improvement of another street, abutting upon the same, which remained unpaid, and in March, 1910, a writ was issued out of the office of the city auditor directing the city treasurer to enforce the payment of such lien, and he is advertising the property for sale under such writ. Plaintiff prays for an injunction pendente lite and for permanent relief.</p> <p>Sections 407 and 408 of the charter are as follows:</p> <p>“The docket of city liens is a public writing, and from the date of the entry therein of an assessment the sum as entered is hereby declared to be a tax levied and a lien upon such lot, part thereof, or tract of land, which lien shall have priority over all other liens and incumbrances whatsoever thereon, and the sum or sums of money assessed for any local improvement, entered upon such lien docket, shall be due and payable from the date of such entry, and if not paid, or bonded as provided by law, within ten days from the date of such entry, thereafter the same shall be deemed to be delinquent and shall bear interest at the legal rate.”</p> <p>“When an assessment upon any lot or part thereof becomes delinquent, any person having a lien thereon by judgment, decree or mortgage, or having purchased the same for any delinquent tax or assessment, may at any time before the sale of such lot or part thereof, pay the same, and such payment discharges the property from the effect of the assessment, and the amount of such delinquent taxes and all accruing costs and charges, if any, when so paid, is thereafter to be deemed a part of such lien, creditor’s judgment, decree, mortgage or tax lien, as the case may be, and shall bear interest and may be enforced and collected as a part thereof. If the holder of any tax lien or claim pays off such assessment, he may thereafter present the receipt to the officer who shall have charge of the tax roll or docket containing the record of the tax sale at which' he purchased such property, and thereupon such officer shall make a note of the amount of such assessment so paid by such purchaser and shall exact repayment thereof, together with interest as above prescribed, from any person making redemption from such sale, and no redemption shall discharge the property from the effect of such which shall not include the amount of such assessment paid by the purchaser after the purchaser shall have presented the receipt as above prescribed.”</p> <p>A general demurrer to plaintiff’s complaint was sustained, and plaintiff appeals.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Moore. This is an action by Mann & Beach, a corporation, against L. J. Flynn, to recover money.

From Yamhill: WILLIAM GALLOWAY, Judge. This is a suit by Edward J. Kerr, Samuel J. Kerr, and William L. Kerr, against Edward F. Duvall (unmarried), J. B. Hosford and Minnie A. Hosford, his wife, Elbridge Duvall and Nettie Duvall, his wife, Lucia Ranzenbach and Karl Ranzenbach, her husband, C. E. Duvall (unmarried), L. J. Cain and Elbridge G. Duvall, Jr., as trustee for said Elbridge F. Duvall and Lester Potter, to determine a disputed boundary line.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. This is an appeal by Multnomah ■ County from a judgment against it as garnishee in an action by E. A. Graf against J. C. Wilson. In December, 1909, the plaintiff recovered a judgment against the defendant, J. C. Wilson, in the justice’s court, for $175 and costs, and filed a transcript thereof in the circuit court for Multnomah County.

From Klamath: John S. Coke, Judge. Statement by Mr. Justice Bean. This is a suit by H. F. Murdoch to enjoin the officers of Klamath County from erecting a courthouse outside of the county seat, Klamath Falls, Oregon. From a decree in favor of defendants, plaintiff appeals. In the year 1882 (Sp.

From Multnomah: . Calvin U. Gantenbein, Judge. Statement by Mr. Justice Burnett. This is an action by D. W. Richardson against the Klamath Steamship Company, a corporation.

<p>Mortgages — Foreclosure—Redemption—Extension of Time — Evidence.</p> <p>1. In a suit for redemption from mortgage foreclosure, evidence held insufficient to warrant a finding that the purchasers had agreed to extend the time.</p> <p>Mortgages — Foreclosure—Redemption—Tender.</p> <p>2. Where plaintiffs sought to redeem under an alleged agreement to extend the time for five days, they were not entitled to recover, in the absence of proof that they made a valid tender or offer to perform at any time, or that they were ever in a position to do so.</p>

From Marion: William Galloway, Judge. This is a suit by Byron T. Randall against the City of Salem. The circuit court decreed the assessments under one ordinance valid, and those under the other void, and both parties appeal therefrom.

<p>Municipal Corporations — Streets—Maintenance of Nuisance— Rights of Abutter.</p> <p>1. That the value of property abutting upon a street has been diminished, and that free access thereto is prevented by the construction and operation of a private tramway in a street in such manner as to constitute a nuisance, shows a right in the abutting owner to sue for damages for an injury different from that suffered by the general .public, and to enjoin further obstruction of his access.</p> <p>Municipal Corporations — Streets—Access—Interference—Injunction.</p> <p>2. Obstruction of an abutting owner’s access to and from a street need not be continuous to entitle him to enjoin further obstruction; it being sufficient that the hindrance be only occasional, and for a few. hours at a time.</p> <p>Eminent Domain — Right to -Exercise — Private Tramways.</p> <p>3. A tramway maintained in connection with a sawmill for the hauling of lumber, etc., does not involve a public use for the construction, maintenance, or operation of which private property can be taken, though the owner may have adopted a schedule of freight charges, it appearing that the tramway does not unite with any other railway or form a part of any connecting line, and that, except in one instance, it has been used exclusively as a mere private enterprise.</p> <p>Municipal Corporations — Streets—Nuisances.</p> <p>4. A public street, when opened for travel,' should be free, safe, and convenient, and any unlawful interference with either of these qualities of the highway for an unreasonable time creates a public nuisance, for which its author is rendered liable.</p> <p>Municipal Corporations — Streets—Nuisances.</p> <p>5. A railroad along a public street, built and maintained under competent authority, is not a nuisance if it is operated properly and carefully.</p> <p>Municipal Corporations — Streets—Construction op Railroads— Power of Common Council.</p> <p>6. Special Laws 1905, p. 214, Section 28, subd. 23, which authorizes the common council of the city of Marshfield to regulate the use of streets for street railways, etc., does not empower the common council to authorize the use of streets for the maintenance of a private tramway.</p> <p>Eminent Domain — Streets—Public Use.</p> <p>7. Whether or not a proposed use of a street in the maintenance of a tramway is for a public purpose is a question of fact, to be determined by the court before whom the question is raised.</p> <p>Municipal Corporations — Streets—Nuisances.</p> <p>8. A nuisance constituted by operation of a private tramway in a street is not validated by continued use, and an abutting owner’s power to prevent its further maintenance is not defeated by any delay in suing.</p> <p>Nuisance as basis of recovery by abutter for injury to property from railroad in street, see note in 36 L. R. A. [N. S.] 756. Reporter.</p>

<p>Pratjds, Statute of — Agreements Relating to Sale of Land.</p> <p>1. Where a client’s agreement to convey to his attorney a half interest in land which was the subject of an action as compensation for the attorney’s services was not in writing, as required by the provisions of the statute of frauds relative to the sale of lands (Sections 804, 808, L. O. L.), an action on the agreement, whether treated as one for specific performance or as one to foreclose the attorney’s lien, given by Section 1088, subd. 4, L. O. L., could not be maintained.</p> <p>Specific Performance — Part Performance of Oral Agreement.</p> <p>2. The performance'of services by an attorney pursuant to an oral agreement by his client to convey land to him in payment therefor is not a sufficient part performance of the contract to entitle him to specific performance, since he can be completely reimbursed for his services by an action at law on quantum meruit.</p>

<p>Bills and Notes — Accommodation Party — Liability of ‘’Accommodation Maker" — “Primarily Liable."</p> <p>1. Under Section 5862, L. O. L., defining an “accommodation maker” as one who has signed a negotiable instrument without receiving value, but providing that such person is liable to a holder for value, notwithstanding the holder knew him to be only an accommodation party, and Section 6023, defining a person “primarily liable” as one who is absolutely required to pay a negotiable instrument, and Sections 5952, 5953, providing for the discharge of a negotiable instrument by payment, and that a person secondarily liable shall be discharged by indulgence of the maker, an accommodation maker is primarily liable, and is not discharged, notwithstanding an indulgence to parties secondarily liable.</p> <p>Bills and Notes — Actions—Burden of Proof.</p> <p>2. When a defendant admits a cause of action and relies upon the defense of payment, he has the burden of proving that fact; and so a maker of a note who pleads payment has the burden of proving it. Evidence — Parol Evidence to Vary Written Instrument.</p> <p>3. The terms of a written assignment for the benefit of creditors cannot be varied by parol evidence of an understanding by the assignor that he was to be released from all indebtedness.</p> <p>Evidence — Conclusiveness on Party Introducino.</p> <p>i. A party is bound by the testimony of his own witnesses.</p> <p>Appeal and Error — Review—Verdict.</p> <p>5. Under Article VII, Section 3, of the constitution as amended (Laws 1911, p. 7), providing that no fact tried by a jury shall be otherwise reexamined, unless the court can fairly say there is no evidence to support the verdict, a verdict in favor of the accommodation maker of a note, based on the plea of payment, cannot be remanded, where there is no evidence showing payment or discharge of the note.</p> <p>Appeal and Error — Review—Determination.</p> <p>6. Under the direct provisions of Article VII, Section 3, of the constitution, as amended (Laws 1911, p. 7), the appellate court will, where all the testimony is in the record, enter the judgment which should have been entered below.</p>

<p>Corporations — Stockholders—Promoters' Shares — Bights as to Creditors.</p> <p>1. The voting of shares of. stock to the promoter of a corporation as a gratuity is beyond the power of its directors.</p> <p>Corporations — Subscription to Stock — Promoters’ Subscription— Liability of Subsequent Holder.</p> <p>2. Where the promoter of a corporation subscribed for a certain number of its shares, but did not pay anything therefor, he was liable to pay the entire par value to the corporation, and successive owners of such stock were also liable for its unpaid par value.</p> <p>Corporations — Stockholders' Liability for Unpaid Subscriptions— Legal Holders.</p> <p>3. Only the legal holder of stock is liable for an unpaid portion of the subscription price, so that a person who took the equitable title of shares as indemnity for liability upon the corporation’s note to a bank did not thereby become liable on the stock either to the corporation or to its creditors as owner.</p> <p>Corporations — Subscriptions to Stock — Requisites of Contract— “Subscriber.'”</p> <p>4. Though persons securing shares of stock in a corporation at a price less than par expressly contract that their liability shall be limited to the price paid, and do not formally subscribe to the stock, a subscription is presumed from any agreement or act by which the stock is acquired from the corporation, and such persons are subscribers within Article XI, Section 3, of the constitution, providing that stockholders of all corporations shall be liable for an indebtedness of said corporation to the amount of their stock subscribed and unpaid.</p> <p>Corporations — Liability of Stockholders — Knowledge of Creditor.</p> <p>5. A creditor who dealt with a corporation with knowledge that part of its shares were issued for less than par value could not complain that the transaction was a frarud upon him.</p> <p>Corporations — Liability of Stockholders — Actions by Creditors— Evidence — Issues, Proof, and Variance.</p> <p>6. In an action by a creditor of an alleged insolvent corporation against certain stockholders to collect unpaid balances due on stock subscriptions, evidence that the plaintiff dealt with the corporation with knowledge that the stock of defendant was by contract nonassessable was properly refused, where the answer was a denial of the transfer of certain shares to a certain defendant, or that he was the holder and owner thereof, and a denial that the other defendants subscribed for stock, but admitting their ownership, thereof.</p>

<p>Street Railroads — Injuries to Pedestrian — Inconsistent Findings — ■ Judgment on Special Verdict.</p> <p>1. Under Section 155, L. O. L., which provides that, where a special finding of facts shall be inconsistent with the general verdict, the former shall control the judgment, where special findings, in an action for injuries from being hit by a street car, established that the plaintiff was guilty of contributory negligence, a judgment was properly entered for the defendant in spite of a general verdict for plaintiff.</p> <p>Trial — Interrogatories—Evidentiary Facts .</p> <p>2. Where, in an action for injuries from being hit by a street car, defendant alleged that, though the plaintiff saw, or reasonably should have seen and heard, the Gar in time to have avoided a collision, she negligently and recklessly drove onto the defendant’s track, and the reply denied it, a direct issue was raised, and a special finding that the plaintiff, by the exercise of ordinary care, could have seen the car in question approaching in time to have avoided the accident was not improper as a finding on an evidentiary fact</p> <p>Trial — Special Verdicts — Discretion of Court.</p> <p>3. The submission of special interrogatories requested is discretionary with the court.</p> <p>Trial — Special Verdicts — Effect of Improper Finding.</p> <p>4. An improper finding in a special verdict will- not defeat the verdict, but may be disregarded.</p> <p>Trial — Interrogatories—Submission of Ultimate Facts — Ordinary Care of Plaintiff.</p> <p>5. An interrogatory, in an action for injuries from being hit by a street car, which submitted the question as to whether the plaintiff was in the exercise of ordinary care when hit, was not improper for its failure to submit whether there was ordinary care “under all the circumstances,’’ where the jury were correctly and fully instructed thereon, as it submits an ultimate fact; the circumstances being the evidence from which the fact may be ascertained.</p>

<p>Municipal Corporations — Public Improvements — Assessment of Benefits — Refund of Assessment.</p> <p>Portland City Charter, Section 227, as amended June 3, 1907, provided that water mains should be laid and paid for by a special assessment on the property benefited. As amended in November, 1910, it provided for the payment of the cost of laying water mains out of the water fund provided for by charges against consumers of water, and authorized refunds to “all persons who have paid to the city treasurer assessments for the laying of water mains.” Prior to this last amendment, a property owner, who had paid an assessment, conveyed the property by a warranty deed. Held that, under the express provisions of Section 227, as amended, in the absence of any special agreement, the grantor, and not the grantee, was entitled to the refund.</p>

<p>Adverse Possession—Possession by Tenant.</p> <p>1. Possession of land by a lessee inures to the benefit of the lessor, for the purpose of perfecting title by adverse possession.</p> <p>Adverse Possession—:Sufficiency.</p> <p>2. Use of riparian land as a boat yard and wood yard, as a means of ingress and egress to and from the river, and assertion of right to receive pay for mooring logs in the river adjoining the land, and long use of the land by claimant’s tenant, shows adverse possession.</p> <p>Limitation of Actions—Pleading.</p> <p>3. Limitations must be specially pleaded to be a bar to a suit to quiet title.</p> <p>Adverse Possession—Acquisition of Title.</p> <p>4. Absolute title to land can be conferred by adverse possession for the statutory period of limitations.</p> <p>Adverse Possession—Adverse and Exclusive Possession.</p> <p>5. What constitutes “adverse and exclusive possession” depends ver3r much on the character of the land and the purposes for which it is adapted, intended, and used.</p> <p>Adverse Possession—Nature of Questions.</p> <p>6. Whether limitations have run against a claim to land is a mixed question of law and fact.</p>

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice McBride. This is an action by E. O. Hall against Charles P. McCan to recover the sum of $1,250. Summons was served upon defendant on May 11, 1912, and on May 22nd a default judgment was taken against him before the clerk. On May 23rd there was filed a motion to vacate the judgment and for leave to answer.

From Marion: William Galloway, Judge. Statement by Mr. Justice Burnett. Held: resulting in a majority in each of said districts in favor of a union high school; that within ten days after the returns were received from the districts in question the district boundary board canvassed the vote and declared the territory comprising said districts to be a-union high school district.

<p>Appeal and Error — Reversal—Restitution by Respondent.</p> <p>1. Defendant could assume that the judgment of the trial court, adjudicating to him 650 inches of water for irrigation, was correct, and, without being a trespasser, continue to use that number of inches, pending plaintiff’s appeal, where no stay of proceedings was taken pending appeal, and on reversal, by a decree adjudicating him only 40 inches, would not be bound to make restitution for the excess used pending the appeal.</p> <p>Waters — Effect—Enforcement.</p> <p>2. A judgment decreeing defendant the right to use a certain number of inches for irrigation acts of its own force upon the subject-matter of litigation, the water, so as to entitle the defendant to use that amount without an execution.</p> <p>Appeal and Error — Undertaking on Appeal — Effect as Stay.</p> <p>3. An undertaking on appeal in a proceeding to adjudicate water rights, that defendants would “pay all damages, costs, and disburse-. ments which may be awarded against them” on their appeal or a dismissal thereof, did not stay the operation of the decree, but only stayed issuance of execution for costs and disbursements; it being necessary that an undertaking, in order to stay the decree, should conform to Section 551, subd. 2, Li. O. L., providing that if the judgment be for the recovery of realty, the undertaking on appeal shall provide that during appellant’s possession thereof he will not suffer any waste, and, if the judgment be affirmed, will pa3r the value of the use and occupation from the time of appeal until delivery of possession, since Section 6545 declares all flumes and ditches affixed to the soil, constructed under the act, to be real estate, and Section 6668 makes all water used for irrigation purposes appurtenant to the land.</p>

<p>From Lake: George Noland, Judge.</p> <p>This is an action by John C. Porter, by James C. Porter, his guardian, against Geo. H. Small. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Executors and Administrators — Disputed Claims — Claimant's Remedy.</p> <p>1. Where a claim against a decedent's estate is disallowed by the executor, the claimant’s remedy is to present it to the county court for allowance, under Section 1241, L. O. L., where it will be tried as a law action.</p> <p>Executors and Administrators — Claims—Allowance—Report.</p> <p>2. Where a claim against a decedent’s estate is allowed by the executor, he should so report it in his first semi-annual accocunt, or in his final account, if no previous one has been made.</p> <p>Executors and Administrators — Claims—Allowance—Effect.</p> <p>3. The allowance of a claim against a decedent’s estate by the executor is only his approval of it, and does not bind the heirs or creditors, who may still contest it on the settlement of the executor’s final account, under Sections 1285, 1286, D. O. D.</p> <p>Executors and Administrators — Disputed Claims — Trial—Issues.</p> <p>4. Under Section 1286, D. O. L., providing that any person interested in a decedent’s estate may, on or before the day designated for settling the .executor’s final account, file objections thereto, or to any item thereof, “specifying the particulars of such objections," where objection was made to a claim for services on the ground only that the claimant had been fully paid in decendent’s lifetime, this was the only issue open to consideration; the employment, the services rendered, and their reasonable value, being admitted.</p> <p>Executors and Administrators — Conclusiveness—Persons Not Appealing.</p> <p>5. On the trial in the county court of a disputed claim against a decedent’s estate, although the only issue presented by the objection was that of payment in the decedent’s lifetime, the court allowed a set-off. The contestant only appealed to the circuit court, which reduced the recovery, and from its judgment the claimant appealed to the Supreme Court. Held, that the claimant acquiesed in the judgment of the county court, and could have no greater recovery than that allowed by it.</p>

<p>Contracts — Consideration—Mutuality.</p> <p>1. A writing requesting insertion of an advertisement on a show curtain for a period of one year and agreeing to pay a weekly sum therefor, accepted by the party to whom addressed and acted upon by both parties, was based on a valid consideration and was not void for want of mutuality.</p> <p>Judgment — Res Judicata — Judgment on .Demurrer to Defective Pleading.</p> <p>2. While a judgment rendered on a demurrer is conclusive as to the facts confessed thereby, where the demurrer goes to the merits, a demurrer to a complaint in an action by the assignee of a corporation, on the ground that the plaintiff did not plead properly the corporate existence of the assignor, goes merely to a formal or technical defect, and a judgment sustaining it will not bar a subsequent action.</p> <p>Judgment — Judgment as Bar — Demurrer—Effect of Appeal.</p> <p>3. The decision on the demurrer being by a justice of the peace, neither an apjieal to the circuit court and an affirmance therein, nor a ruling striking out an amendment to the petition filed therein, would Change the character of the judgment or bar a subsequent action, as the merits were not determined in either court.</p> <p>Trial — By Court — Findings—Conformity to Issues.</p> <p>4. Where a former judgment' was not res judicata, an allegation of the defendants’ answer in relation thereto was immaterial, and was properly ignored by the court in its findings.</p> <p>Trial — By Court — Findings—State of Evidence.</p> <p>5. Where, in an action on a contract, the defendants offered no evidence other than the record of a judgment relied on as res judicata, no finding on the question of giving notice to the plaintiff in attempting to rescind was warranted.</p>

<p>Evidence — Secondary Evidence — Proof of Loss — Sufficiency.</p> <p>1. A witness’ testimony that he drew the lost mortgage, and thought it was left at a certain bank, and that he went to the bank, and had a certain person search for it, was hearsay, and insufficient to show such search as was necessary to authorize proof of the contents of the mortgage by parol; it being essential that the search be made and testified to bjr the person, in whose custody the lost instrument is known to be.</p> <p>Evidence — Secondary Evidence.</p> <p>2. The proof to establish a lost writing must show its existence, loss, and contents.</p> <p>Evidence — Secondary Evidence.</p> <p>3. It was error to admit parol evidence on the contents of a mortgage being foreclosed without its loss having been first established by competent proof.</p> <p>On Rehearing.</p> <p>Appeal and Error — Decision—Equity.</p> <p>4. Where, on appeal in a suit in equity, there is no doubt as to the issues below and that the respondent had full opportunity to present his case, the Supreme Court, on reversal, will not remand the case, but will enter a final decree upon the record.</p>