Volume 64 — Oregon Reports

<p>From Multnomah; Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Shipman, Denny, Rhame & Company, a corporation, against the Portland Construction Co., a corporation, J. R. Bowles, Homer I. Keeney, Mark W. Gill, H. J. Martin, O. B. Hathaway, W. F. Hurlburt, J. H. Carpenter, and Oregon Gold Prospecting & Promoting Co., a corporation.</p> <p>The plaintiff is a California corporation of consulting engineers and the defendant Portland Construction Company is an Oregon corporation. On August 14, 1908, the Construction Company, as party of the first part, entered into a contract with the plaintiff, as party of the second part, by which it was provided in part :</p> <p>“That the said party of the first part being about to undertake the construction and installation of approximately two hundred miles of electric railroad in central Oregon, with the necessary appurtenances of dams, power plants, transmission lines, etc., herewith engages the said party of the second part to serve as its engineers in the matter of the said construction and installation throughout the whole work from surveys to completion; and to have complete charge of all engineering matters, with the single exception of the structural steelwork of dams and bridges, upon the following terms and conditions: (1) That the party of the second part agrees to form a pool on or before September 1, 1908, to subscribe to $35,000 cash to be paid into the treasury of the Portland Construction Company, and for which the said Portland Construction Company agrees to deliver to the said pool $35,000 of its common stock, of the par value of one hundred dollars per share, fully paid and nonassessable, and in addition thereto thirty ‘participating certificates’ of the Oregon Gold Prospecting & Promoting Company, carrying certain dividends or profits, all in accordance with a contract of even date, between said Portland Construction Company and B. Carroll Shipman. (2) That it is fully understood and agreed by the parties hereto that the work covered by this contract is to be undertaken and prosecuted in sections or divisions, and that, for the purpose of estimate and payment, each section of the work is to be considered by itself, payments from the said party of the first part to the said party of the second part being made in accordance with the terms below, only upon such sections as may have been fully designed and set forth in the plans and specifications submitted. (3) That in consideration of services in securing the above-mentioned subscription on the part of Shipman, Denny, Rhame & Company, party of the second part, to the stock of Portland Construction Company, and of the ' further services as engineers in accordance with this contract, the said Portland Construction Company, party of the first part, its assigns or successors, agrees to pay to the said Shipman, Denny, Rhame & Company, party of the second part, its assigns or successors, a total fee of five per cent on the actual cost in labor and material of the electric railroad with all its appurtenances before mentioned except structural steelwork on bridges and dams; payment of the said five per cent fee to be made as follows: Upon the presentation to the party of the first part, or its representative, of one complete set of plans and specifications with the estimate of cost of any section of the work as before mentioned (the first section being from Condon to John Day River), prepared as set forth below, a partial fee of $15,000 the said fee to be due and payable in cash at the time of the presentation of the plans and specifications; the balance of the above-mentioned five per cent total fee to be paid in monthly installments in proportion to the work done, and based on engineer’s estimates. It is expressly agreed and understood that the payments herein mentioned in any specific instance are to cover only that particular section of the work for which plans, specifications and estimates are submitted, and that payment for no more than one section shall be made until the contract is let for first section. (4) As the party of the first part desires to start the surveys of the first section of the work between Condon and the John Day River at once, before it is possible to obtain the actual payment of the above-mentioned $35,000 into the treasury of the Portland Construction Company and the party of the second part agrees to begin work at once and to prosecute it with all diligence in accordance with this contract, and it is hereby agreed and understood, that if the said Shipman, Denny, Rhame & Company shall not be able to cause to be delivered to the said treasury of the Portland Construction Company all of the said $35,000 in accordance with the foregoing provisions, then, and in that event, this contract shall be void and of no effect, except as hereinbefore provided, to wit, the said Shipman, Denny, Rhamé & Company, party of the second part, agrees to subscribe for themselves to $7,000 worth of said stock of the Portland Construction Company, carrying with it six ‘participating certificates’ of the Oregon Gold Prospecting & Promoting Company and a proportionate amount of dividend stocks and bonds, the subscription to be paid for in cash or services, as elected by the said Shipman, Denny, Rhame & Com- ' pany, and they further agree to use their best efforts to obtain subscriptions to as much of the $35,000 above-mentioned subscription, as possible, and in consideration of such subscription by the said Shipman, Denny, Rhame & Company, the said Portland Construction Company, party of the first part, hereby agrees to engage the services of the said Shipman, Denny, Rhame & Company as engineers of the first section to the John Day River, to wit, where said river intersects the north line of the land of Prineville Land & Livestock Company, about one and one-half miles above the mouth of Pine Creek only, of the above-mentioned electric railroad upon the same terms and conditions otherwise as stated in this contract for the complete work.”</p> <p>The contract then provides in some detail what shall be performed by the plaintiff in the way of examining conditions, furnishing plans, specifications, bills of material, estimates of cost of construction, and equipment of the proposed road, and further provides as-follows:</p> <p>■ “And upon presentation to the first party by second party, of such plans, specifications, surveys, estimates, etc., for said section, second party shall be entitled to payment of the sum of $7,000. forthwith, unless second party shall have elected to pay its subscription of $7,000 par value of stock of first party in services in which -event upon completion of such plans, etc., second party shall be entitled to be credited upon subscription the sum of $7,000, and failure’ to pay such subscription in cash on or before September 1, 1908, will be deemed an election to pay in services. If within two weeks after the presentation of such complete plans, etc., to first party actual construction work shall not have been commenced and prosecuted with reasonable diligence thereafter, then and in that event, there shall become due and payable to second party the further sum of $8,000, which payment when made will be in full and complete settlement and discharge of all liability to second part under this contract, if said railroad is not constructed, but if constructed by first party the second party shall be entitled to receive in the aggregate five per cent of cost of labor and material as hereinbefore specified, and if construction work is begun within two weeks after the presentation to first party of said plans, etc., and such work is thereafter diligently prosecuted then and in in that event second party shall be entitled to receive 5 per cent of actual cost of labor and .material of said first section to John Day River, from which shall be first deducted the sum of seven thousand dollars aforesaid, and the balance shall be paid in monthly installments as hereinbefore specified. And it is also agreed that as soon as surveys, etc., are completed from Condon to Mayville, second party shall deliver to first party such surveys, plans, estimates, etc., and again when said surveys are completed to Fossil, the surveys, etc., shall be delivered to first party in order to enable first party to prepare for construction work.”</p> <p>On September 20, 1909, the plaintiff filed a complaint against the other party to the contract, together with certain stockholders of the defendant Construction Company, and alleged, in substance, that the plaintiff had performed its part of the contract, and, although frequent demands had been made upon the Construction Company for the payment of the sum of $8,000 claimed to be due the plaintiff here under the contract, nothing had been paid except $4,050, and there was a balance due the plaintiff from the Construction Company amounting to $3,950, together with accrued interest. The complaint then goes on to state:</p> <p>“That prior to August 14, 1908, and subsequent to the incorporation of defendant Portland Construction Company, the defendants J. R. Bowles, H. I. Keeney, Mark W. Gill, H. J. Martin, O. B. Hathaway, W, F. Hurlbert, J. H. Carpenter, and the defendant the Oregon Gold Prospecting & Promoting Company, subscribed for a certain amount of the capital stock of the defendant Portland Construction Company, but failed and neglected to fully pay for the same in accordance with their respective subscriptions, and that there now remains due and unpaid from the defendants last above named, on account of the unpaid subscription to the capital stock of the said company, an amount sufficient to pay the claim and demand of the plaintiff herein, but that the exact amount of the unpaid balance of subscriptions to said capital stock is a matter peculiarly within the knowledge of the defendant, and that the plaintiff has no definite or complete knowledge as to the same, that the defendant the Portland Construction Company is now and since the 1st day of January, 1909, has been, wholly insolvent and without any assets or property of any kind; that this suit is brought for the benefit of the plaintiff and of such other creditors of Portland Construction Company, if any, as shall come into this suit as parties plaintiff; that the plaintiff is informed and believes, and therefore alleges the fact to be, that certain of the defendant stockholders above named are insolvent and unable to respond to an order, decree, or judgment of this court directing them to pay funds or moneys in any sum whatsoever to the plaintiff, but that the plaintiff is unable to state how many or which of said defendants are so insolvent.”</p> <p>The prayer of the complaint is for a declaration of the insolvency of the Portland Construction Company, ascertaining the amount of indebtedness of that corporation to the plaintiff, and to such others as may come into the suit and the amount due and payable from the defendant stockholders on account of unpaid balance of the capital stock of the Construction Company determining which of the stockholders are solvent and which are insolvent, and, after determining the amount of indebtedness from the defendant corporation to the plaintiff, to require the stockholders to pay the same in proportion to the respective amounts of their unpaid subscriptions and for general relief. Afterwards, on March 26, 1910, the plaintiff filed a supplemental complaint in which it alleged as matter occurring after the filing of the original complaint:</p> <p>“Thab plaintiff has filed with the Secretary of State of the State of Oregon a duly and legally certified copy of its articles of incorporation, a power of attorney designating and appointing an attorney in fact in the State of Oregon upon whom a lawful and valid service or process may be made and a written declaration of its desires and purposes to engage in business within the State of Oregon, and has done all things necessary and proper to be done and in acordance with the laws of the State of Oregon to authorize and permit it to do business within the State of Oregon, and has paid all filing fees, license fees, and other taxes and fees required to be paid by it as a foreign corporation, and has paid the last annual license fee due and payable from it to the State of Oregon as required by law.”</p> <p>The appearing defendants demurred to the complaint and the supplementary complaint on the ground that the court had no jurisdiction of the subject of the suit, that the plaintiff had not legal capacity to sue, and that the complaint does not state facts sufficient to constitute a cause of action against the defendants or any of them but this demurrer was overruled. The answer of the Portland Construction Company having put in issue all the allegations of the complaint and the supplemental complaint, except the corporate existence of the plaintiff and its own and the execution of the contract already noted, which contract is set out as an exhibit to its answer, stated in substance as its first defense that the plaintiff entered into the contract with them well knowing that the Construction Company had no assets or moneys in the treasury, that the plaintiff did not rely upon the financial standing of the Construction Company or the amount of its capital stock, and that it at all times knew that its capital stock had been fully paid up. It also charged that the plaintiff failed to perform its part of the contract in obtaining the subscription of $35,000 cash for stock, so that the defendant stockholders were compelled to and did advance the sum of $1,500 in order to enable the defendant Construction Company to meet its obligations. In the second separate answer in the most general terms without any specifications the Construction Company charges that the plaintiff never complied with the contract so as to make the defendant liable thereunder. A third defense is in these words :</p> <p>“That the plaintiff, to wit, August 14, 1908, and a long time prior thereto, was a foreign corporation, and that on said date had not complied with the laws of the State of Oregon permitting a foreign corporation to do business within the State of Oregon, and that said plaintiff without having complied with the laws of the State of Oregon permitting or allowing it to do or transact business within this State did unlawfully and contrary to the laws and public policy of this State undertake to do business within the State of Oregon without in any respect or manner complying with the laws of the State of Oregon, said plaintiff, a foreign corporation doing business within this State, and in pursuance thereto, undertook to enter into the contract set forth and referred to in the plaintiff’s complaint, and the same contract upon which this suit is founded, and this defendant without any knowledge with regard thereto and without being advised as to whether or not the said plaintiff was authorized to do business within the State of Oregon, but being misled by the plaintiff—that is to say, that the plaintiff assumed and led this defendant to believe that it had in all respects complied with the.laws of the State of Oregon—and thereby induced this defendant to enter into the said contract which is the same contract sued upon, and referred to in plaintiff’s complaint herein,. and that this defendant alleges •that this blaintiff had not at or prior to the time of the making of. said contract complied with the laws of the State of Oregon, and had no authority or- right or power to transact or do business within this State, and by reason of these facts this defendant says that said contract sued upon in this suit as absolutely void and of no effect, and that no suit or action can be maintained thereon.”</p> <p>The defendant stockholders, Bowles, Gill, Carpenter, Martin, and Keeney, answered the complaint separately. They admitted the corporate character of the plaintiff, and denied the other allegations of the complaint and the supplemental complaint, except as otherwise admitted in their answer. They avowed holding and owning shares óf the capital stock of the Construction Company, but said that all those shares had been fully paid for by the defendants. Their answer then proceeds thus:</p> <p>“That at the time of the entering into the contract set forth in the complaint herein the plaintiff well knew that there was no money or other assets in the treasury of the defendant Portland Construction Company, and that said corporation had yet to be financed and put upon a substantial and working basis. And these defendants further say that at the time of the entering into the contract sued upon in this suit between the plaintiff corporation and the Portland Construction Company it was agreed by the plaintiff, among other things, that these defendants were not to be held for any liability to the plaintiff by reason of said contract or otherwise, but, on the contrary, the plaintiff waived any liability against these defendants, and was to look to the Portland Construction Company for payment without reference to any liability of these defendants as stockholders in said Portland Construction Company, and said plaintiff for its payment for any indebtedness which should become due from the Portland Construction Company to the plaintiff on the contract sued upon herein or otherwise was to and agreed to depend upon the financing of the Portland Construction Company for its money—that is, for any indebtedenss due or to become due the plaintiff by virtue of said contract or otherwise—and under no circumstances were these defendants to be liable as stockholders, the plaintiff being advised that the defendants herein had received or were to receive the stock subscribed for by them for their individual services to the Portland Construction Company, and that the defendants were to render their services to promote the defendant Portland Construction Company, all of which the principal knew and the plaintiff accepted and entered into the Contract sued upon herein with full knowledge and express understanding that these defendants were not liable to the Portland Construction Company, or otherwise, for any subscription stock in said Portland Construction Company, and these defendants say that it would be inequitable and contrary to the agreement made by the plaintiff at the time of the making of the contract to hold these defendants liable to this plaintiff, and that this plaintiff ought not to have judgment to recover against these defendants for any amount. * * These defendants further allege that the plaintiff in entering into the contract aforesaid did not in any way rely upon the personnel of said defendant Portland Construction Company, or the amount of the capital stock of said defendant, and well knew at that time that the stock held by these defendants in said corporation had been fully paid for.”</p> <p>As in the defense of the Portland Construction Company, the answering stockholders charged that the plaintiff failed to carry out its share of the agreement in obtaining the subscription of $35,000 of the stock of the Construction Company. The replies of the plaintiff traverse the answers of all the defendants in material particulars. After the ease had been heard by the court and taken under advisement, the plaintiff applied for leave and was granted permission to file an amended complaint over the objection of the defendants. In addition to the allegations of the original complaint and supplemental complaint, the amended pleading set forth that at the time of the completion of its contract and demand for the payment of the initial installment of its compensation the .defendant had no stock which it could deliver for the $7,000 subscription. After stating particularly the number of shares of stock held by each of the defendant stockholders, the prayer was substantially the same as in the original complaint. A motion to strike out the amended complaint was overruled. Afterwards the court rendered a decree in substance that the Portland Construction Company had been insolvent ever since January 1, 1909; that it was indebted to the plaintiff in the sum of $3,950, together with interest specified; that the individual defendants were indebted to the Construction Company on account of unpaid subscription to its capital stock in the amount of $5,000 each, and awarded a decree against these answering defendants jointly for the amount found due to the plaintiff from the construction company. The defendants have all appealed.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is an action by N. Jonas against William Hughes to recover $1,515 with interest from November 6, 1909, at 8 per cent per annum, less $200 paid thereon, being money loaned to defendant on that date. The allegations of the complaint are denied by the answer. Plaintiff’s testimony tended to show that the defendant asked pláintiff for a loan of $1,500, and offered him an overdue promissory note in that sum, given by J. H. Templeton to the defendant, on which there was due some interest. The plaintiff told defendant that Templeton was a stranger to him, and that he would not take the note, and asked for defendant’s note. Defendant said he had no blank notes, but would sign the Templeton note, and, “If Templeton don’t pay it, I will.” Plaintiff replied: “You are good for it, but the note is no good as it stands. If you pay when it comes due, you can have it.” Defendant indorsed the Templeton note, and delivered it to plaintiff, and plaintiff gave him his check for $1,000 and his note for $515 due in six months, to equal the amount of the Templeton note. Defendant told him that the sheep men out in that country (Heppner) were owing him, and, whenever they got their wool to market, he would have money to throw at the birds. Plaintiff was to give him until the 1st of June for repayment, provided Mr. Templeton did not pay it.</p> <p>At the close of plaintiff’s testimony, the defendant moved for a judgment of nonsuit on the ground that the plaintiff failed to prove a cause sufficient to be submitted to the jury, which was denied by the court, and the defendant thereupon rested his case without offering any evidence. The trial was had before the court without the intervention of a jury, and the findings were made in favor of plaintiff; and from a judgment thereon defendant appeals.</p>

<p>Brokers—Employment—Necessity of Writing.</p> <p>1. A parol agreement binding defendant to pay plaintiff a specified sum on plaintiff’s foregoing bis opportunity to convey his farm to a third person, and giving defendant an opportunity to convey his property to the third person, hut not requiring plaintiff to make any active effort to induce the third person to purchase defendant’s property, is not within Section 808, subd. 8, L. O. L., requiring an agreement employing a broker to sell or purchase real estate to be in writing signed by the party to be charged and expressing the consideration.</p> <p>Evidence—Admissions—Pleadings—Effect.</p> <p>2. Where the original complaint is superseded by an amended complaint, the original complaint introduced in evidence by defendant is but an admission against interest.</p> <p>Trial—Construction of Documents in Evidence as Admissions— Duty of Court—Requests.</p> <p>3. The duty of the court to construe pleadings, deeds, and contracts, and to state their legal effect, does not extend to the construction of documents introduced in evidence merely as admissions against interest, in the absence of any request for such construction.</p> <p>Appeal and Error—Objection Below—Sufficiency.</p> <p>4. A general exception to an instruction that the original complaint, though superseded by an amended complaint, being introduced in evidence, may be considered to determine the facts, and any explanation given as to the statement in the complaint to determine whether the facts are as alleged therein does not amount to a notice to the court that an instruction construing the complaint is desired, and the objection that the court should have construed the complaint is not available on appeal.</p>

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Chief Justice McBride.</p> <p>This is an action by the Merchants’ National Bank of Portland, Oregon, a corporation, against Jno. P. Sharkey Co., a corporation, Jno. P. Sharkey, and Ellen J. Sharkey, brought on June 2, 1910, to recover the balance due upon a promissory note for $25,000, executed by defendants to plaintiff, upon which it was alleged there was due the sum of $24,800, with interest from February 22, 1910, at the rate of 8' per cent per annum.</p> <p>Defendants answered, admitting the execution of the note, and alleging that there had been paid thereon the sum of $4,041.12, and that the interest had been paid up to July 8, 1910. The answer further alleged, in effect, that the plaintiff exacted, in consideration of making the loans, the payment of $5,000, and the transfer of property of the net value of over $14,000, in addition to the 8 per cent interest provided in the note, and asked that such sums be credited as payments on the note sued upon.</p> <p>The reply denied the allegations of the answer, tending to show usury; and later, in May, 1911, plaintiff filed a supplemental reply, admitting that interest had been paid on the note up to March 30, 1911, and the $1,822.09 had been paid on the principal in addition to the sums credited in the complaint, and alleged that there was then due on the note the sum of $22,977.91, with interest from April 5, 1911. On the trial the court held that the answer did not state facts sufficient to constitute a defense under the United States banking statutes, and excluded defendants’ testimony tending to show the usurious nature of the original loan. There was a verdict and judgment for the plaintiff for $23,296.38 and $250 attorney’s fees, from which judgment defendants appeal.</p>

From Union: John W. Knowles, Judge. Statement by Mr. Justice Burnett. This is an action by the First National Bank of Joseph, against John P. Rusk, for money had and received. The complaint begins with a title which reads thus: “In the Circuit Court of the State of Oregon, for Union County.

<p>From Malheur: Dalton Biggs, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is a suit by the Board of Directors of the PayetteOregon Slope Irrigation District for an adjudication as to the legality of the organization of the district, against L. E. Peterson.</p> <p>The petitioner herein has attempted to organize an irrigation district, and to issue bonds for the purpose of constructing or purchasing reclamation works, under chapter 7, title 41, being Sections 6167-6217, L. O. L., as amended, Laws of 1911, pp. 378-404; and it brings this suit for the purpose of securing an adjudication by the court, under Sections 29, 30, 31, of the Amendatory Act (Laws of 1911, p. 401), as to the regularity and legality of the organization of the district and of the proceedings of its board of directors in providing for the issue and sale of the bonds of the district, in which proceedings the court is required to determine the regularity and legality of every step taken in the organization of the district and by its board of directors and all other proceedings which may affect the legality or validity of said bonds. The petition recites the facts as to each step taken in these proceedings. The requirements of Sections 29, 30, 31, of the Amendatory Act (Laws of 1911, p. 401), as to the manner of conferring jurisdiction upon the circuit court to determine the regularity and legality of the proceedings, have been fully complied with, and we adopt the findings of fact Nos. 1 and 2 made by the circuit court as the findings of this court in relation thereto. No appearance was made by any one to contest this proceeding except by L. E. Peterson, who questions its regularity on the grounds (1) that the contract for the purchase of its irrigation system from the Snow-Moody Development Company was ultra vires; (2) that the notice calling for the special election for the issue of bonds was ineffectual; (3) that the bonds could be sold only pursuant to public advertisement of the sale; (4) that the change of the boundaries of the district was irregular and void; (5) that the law is unconstitutional and void, in that the qualifications of the electors provided for in the act are in conflict with Section 2, Article II, of the constitution. At the trial of the case in the circuit court, the only evidence produced was the record of the county court made in the organization of the district and the record of the proceedings of the board thereafter, including notices and proofs of service thereof. The circuit court made findings that all the proceedings had by the petitioner under the statute were regular and valid, and rendered a decree to that effect, and defendant appeals.</p> <p>Submitted on briefs under the proviso of Rule 18 of the Supreme Court. 60 Or. 622 (117 Pac. XI).</p>

From Union: John W. Knowles, Judge. The defendant, William Hogg, was indicted, tried and convicted of the crime of rape, and from the judgment and sentence imposed, he appeals.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Moore. This is an action by A. R. Morgan against Albert Bross to recover damages for a personal injury.

From Washington: James U. Campbell, Judge. Statement by Mr. Justice Moore.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Chief Justice McBride. The defendant, John Pulos, was indicted for the crime of unlawfully having in his possession a duck during the season when it was unlawful to kill the same. The indictment alleged that the duck was killed during the season when it was lawful to kill ducks.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Moore. This is an action by Eliza A. Sperry and Lucile Lemcke against Parker Stennick and L. S. Thomas to recover money. The complaint charges, in effect: That on September 22, 1906, the H. W. Lemcke Company was duly incorporated, and the plaintiffs became the owners of a large number of shares of its capital stock.

<p>Bridges—Duty of County to Repair.</p> <p>1. While, as a general rule, when a municipal corporation is created over territory lying within the county, the power and duty to repair roads therein is imposed on the municipality, the highways being impressed with the character of street's unless there are statutes to the contrary, yet, as the question whether such roads shall become streets depends on the intention of the legislature, and as both the county and . the municipality are arms of the State, the duty of repairing a bridge on a county road, which, by the extension of its boundary, was within the limits of the city of Medford, is under Medford Charter (Sp. Laws 1901, p. 205), Section 105, providing that all bridges and culverts in said city and road district and upon any county road shall be built and maintained and repaired by the county, and Section 937, subd. 4, L. O. L., authorizing the county court to provide for the erection and repairing of public bridges on any highway, imposed upon the county.</p> <p>Statutes—Special Legislation.</p> <p>2. Where the general law gave the county jurisdiction over county roads in cities, Medford Charter (Sp. Laws 1901, p. 205), Section 105, providing that all bridges of certain character on county roads within the city should be repaired and replaced by the county, is not in violation of Article IV, Section 23, subd. 7, of the constitution, providing that there shall be no special or local laws for the laying, opening, and working of highways, the constitutional provision referrirng rather to the mode of laying and working highways and the expending of money therefor than to the fixing of the burden of their repair.</p> <p>Counties—Fiscal Management—Incuring Indebtedness—“Voluntary Indebtedness.”</p> <p>3. Indebtedness incurred by a county for the construction of a bridge on a county road is a voluntary indebtedness within the prohibition of Article XI, Section 10, of the constitution, fixing the limit for such indebtedness.</p> <p>Highways—Fiscal Management—Levy and Expenditure of Taxes.</p> <p>4. The county court may or may not in ’ts discretion levy the road tax, authorized by Section 6320, L. O. L., and though it cannot be compelled to do so, it cannot expend such funds, when collected by levy under that section, for any purpose other than directed by the statute, and, if they are commingled with other moneys, the conversion must be treated as a loan.</p> <p>bounties—“Indebtedness”—What Constitutes.</p> <p>5. Under Section 6320, L. O. L., authorizing'the county court to levy a special tax which shall be set apart as a road fund to be used in the building and improving of public roads and bridges, 50 per cent to be apportioned to several road districts and the remaining 50 per cent to be applied to roads as the county court may direct, and in view of Section 6366, providing that the county courts of several counties may, in their discretion, apply any moneys in the county treasurer toward the expenses of bridges of a county road—a contract for the erection of a bridge, where the necessary funds have been raised by special tax and appropriated therefor, does not create an indebtedness within Article XI, Section 10, of the constitution, providing that no county shall incur any debts or liabilities which shall singly or in the aggregate exceed the sum of $5,000.</p>

<p>Clerics of Courts—Fees—Naturalization Cases—Duty to Account to County.</p> <p>Under Act Cong. June 29, 1906, c. 3592 (34 Stat. 596: U. S. Comp. St. Supp. 1911, p. 124), authorizing State courts of unlimited original jurisdiction in civil cases to naturalize aliens, and providing for the collection of fees in naturalization cases by the clerks of such courts, who are authorized to retain one-half of the fees collected in any year up to $3,000, the balance to be paid to the bureau of commerce and labor, the services rendered by the clerk of a State court in naturalization cases are not received in the performance of duties pertaining to his office under the State laws; and hence the clerk is not required to account for his fees earned in naturalization cases under Sections 3116, 3122, L. O. L., providing for the payment of salaries to county clerks, and requiring them to pay over all fees collected to the county treasurer.</p>

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>This is an action by Frank Kosher against F. Stuart, A. Winans and Mattie A. Winans. The plaintiff-respondent flies motion to dismiss.</p>

<p>Justices of the Peace—Appeal to Circuit Court—Time for Piling Transcript.</p> <p>Though Section 2460, L. O. L., provides that when appeal from a justice is taken the justice must allow it, he may, before making the order allowing it, wait the five days after the filing of the undertaking allowed respondent by Section 2457 in which to except to the sureties, so that the 30 days following the allowance of the appeal, within which Section 2463 requires appellant to file the transcript in the circuit court, commence to run only from the making of such order and not from the giving of notice of appeal or the filing of the undertaking.</p>

<p>Apxieal and Error—Verdict—Conclusiveness.</p> <p>1. Under Article VII, Section 3, of the constitution, as amended November 8, 1910 (see Laws 1911, p. 7), providing tbat no fact tried to a jury shall be otherwise re-examined in any court unless it can affirmatively say that there is no evidence to support the verdict, the Supreme Court cannot disturb a verdict reached under proper instructions, if there is evidence to support it.</p> <p>Master and Servant—Master’s Duties—Guarding Place of Work.</p> <p>2. Where the crossing of a shafting was incident to the work in which an employe was engaged, it was the employer’s duty to guard the shaft so as to protect the employe so far as practicable.</p> <p>Master and Servant—Assumed Risk—Factory Act.</p> <p>3. Assumed risk is not a defense in an action under the factory act for failure to guard machinery.</p> <p>Master and Servant—Injuries—Evidence—Repairing Defects.</p> <p>4. Evidence of the placing of guards on machinery after an employe was injured is not admissible to show negligence.</p> <p>Master and Servant—Evidence—Admission—Guarding Machinery.</p> <p>5. In a factory employe’s action for injuries from an alleged unguarded machine, in which it was an issue whether it was practicable to have guarded it, evidence that, after the accident, it was guarded, was admissible to show the practicability of guarding the machinery.</p> <p>Trial—Instructions—Covered by Instructions Given.</p> <p>6. In a factory employe’s action for injuries from unguarded machinery which plaintiff was passing when injured, defendant requested a charge that if plaintiff was injured by performing his duties in a dangerous manner, and might have performed them safely in a manner provided by defendant, he would be guilty of negligence barring recovery, notwithstanding that defendant was also negligent. The court instructed that if there was another safe way of doing his work which plaintiff knew, and notwithstanding he went the way he did, and if such way was dangerous to plaintiff’s knowledge, and by going such dangerous way he was injured, defendant would not be liable, that in the absence of instruction by defendant as to what way to take the question was whether the way plaintiff took was one an ordinarily prudent person would have taken, and if defendant provided a safe passageway leading to and from the saw plaintiff was operating to a point where it was necessary for him to go, and plaintiff was instructed to follow such route, but took a more dangerous route and sustained injury as a result thereof, he would be guilty of contributory negligence. Held, that the requested instruction was sufficiently covered by the instruction given.</p> <p>Master and Servant—Instructions—Contributory Negligence.</p> <p>7. A requested instruction that, if the shafting with which an employe came in contact was so located as to preclude anticipation of danger therefrom by the employer, its failure to guard the shafting was not negligence, was properly refused as making the employer’s anticipation of danger the measure of its liability, irrespective of its due care.</p> <p>Appeal and Error"—Harmless Error—Additional Instructions.</p> <p>8. After the jury had retired, the court recalled it, and gave ■ a further instruction, which was strongly favorable to defendant, wlien a juror stated, that they had already come to a verdict. They were, however, directed by the court to consider the additional instruction, and the jury again retired and returned a verdict, with which they handed in a paper containing another verdict for the same amount with the foreman’s name erased. Held, that any impropriety in giving the additional instruction after the verdict had been made was harmless to defendant; it being evident that the two verdicts were the same.</p>

<p>Municipal Corporations—Ports as Municipal Corporations— Organization.</p> <p>1. Under Section 6115, L. O. L., relative to the organization of municipal corporations designated as ports, and providing tliat where the territorial limits do not include the county as a whole the limits shall not extend beyond the natural watershed of any drainage basin whose waters flow into another bay, estuary, or river navigable from the seas, situate within such county, land near the summit of the dividing ridge between two drainage basins, the general trend or. inclination of which is toward one of them, is properly included in the corporation including that basin, even though a few trifling rivulets thereon flow in the other direction.</p> <p>Municipal Corporations—Ports as Municipal Corporations— Organization—Elections.</p> <p>2. Where the petition for the organization of a port as a municipal corporation is in proper form, the notice of election properly given, the returns properly made, and the proclamation of the formation of the port duly and properly entered, the county court’s finding that the port has been duly organized and incorporated and the entry of such finding in the journal is res judicata as to every fact necessary to constitute a valid corporation including the location of the boundaries, and. persons wishing to contest the inclusion of land should appear in the county court and do so prior to such finding, and cannot do so thereafter by quo warranto.</p>

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>The plaintiff, Madalon Leffingwell, is the owner in fee simple of a quarter section of vacant land in road district No. 2 of Lane County, Oregon, and brings this suit against the county, the county judge, the commissioners, and sheriff to quiet her title against any claim by the defendants in their official capacity in the enforcement of a tax, the levy of which is said to have been attempted by the taxpayers of said district in December, 1910. She avers payment by her in full prior to the commencement of this suit of all other taxes of every kind charged against her land mentioned on the assessment roll of that year, and says that the county, court of the defendant county never levied on that roll any tax of any kind except what she has already paid as stated. Her complaint contains these allegations:</p> <p>“That on the 20th day of December, 1910, there was filed in the office of the clerk of Lane County a certificate of taxpayers’ road district meeting in words and figures as follows:</p> <p>“ ‘To E. U. Lee, County Clerk of Lane County, Oregon: We, the undersigned duly elected chairman and secretary of the taxpayers’ meeting of road district No. 2 of Lane County, Oregon, held on the 17th day of December, 1910, at the hour of 1 o’clock p. m. of said day for the purpose of voting upon the question of levying an additional tax upon the taxable property of said district for the purpose of improving the roads in said district, do hereby certify that at said meeting the taxpayers of said road district by a majority vote of the taxpayers present at said meeting voted to levy an additional tax of seven mills on each dollar of the taxable property of said district to improve the roads of said district. Dated this 17th day of December, 1910. Glen O. Powers, Chairman. Chester E. Edwards, Secretary.’</p> <p>“That no additional paper in reference to said taxpayers’ meeting, the calling of the same, the giving of notice thereof, or what was done thereat has been at any time filed or of record with any officer of said Lane County or any department of its government. That the meeting mentioned was not called by the supervisor of said district, but was called by persons claiming to constitute more than 10 per cent of the taxpayers of said district who caused notice of said taxpayers’ meeting to be posted in three places in said district and to be published for three weeks prior to said meeting in the Eugene Twice-a-Week Register, a paper of general circulation, printed and published at Eugene, Oregon.”</p> <p>She alleges that, solely by authority of the certificate quoted, the county clerk extended upon the assessment roll of 1910 the tax mentioned in the certificate, that the tax roll has been placed in the hands of the defendant sheriff for the collection and enforcement of the taxes, and that the defendants and all of them claim that the said taxpayers’ road district levy appearing upon the roll is a valid and subsisting lien upon the plaintiff’s land, and the sheriff threatens to enforce the same by the usual method for' collecting taxes. On a general demurrer to this complaint a decree was passed dismissing the suit, and the plaintiff appeals.</p>

<p>Municipal Corporations—Public Improvements—Assessment of Benefits—Effect of Irregularities.</p> <p>1. Where the proceedings for making a street improvement were regular, and the city council had jurisdiction to order the improvement, and to enter into the contract, mere irregularities in the method of carrying on the work did not release the property owners from the obligation of paying their assessments.</p> <p>Municipal Corporations—Public Improvements—Performance of Work—Acceptance.</p> <p>2. Where a city council accepts a street improvement, its decision that the improvement complies with the contract is, in the absence of fraud, conclusive on the property owners.</p> <p>Evidence—Presumptions—Official Acts.</p> <p>3. In an action to enjoin the collection of a special assessment for a street improvement, where the complaint does not allege that the notice to property holders interested, required by the city charter to be given before the issuance of the warrant for the collection of the tax, was not given, it will be presumed that this official duty was regularly performed.</p> <p>Municipal Corporations—Joinder—Persons Who May Join.</p> <p>4. Where several property owners join in an action to enjoin the collection of a special assessment for a street improvement, relief against the assessment can only be given on a ground common to all the plaintiffs, and hence two of the plaintiffs cannot be granted relief on the ground that their lots were described in the notices of the improvement as the property of other persons, where this was not true as to the lots of the other plaintiffs.</p>

From Lane: Lawrence T. Harris, Judge. This is a suit by ffm. Landess, W. P. Huff and H. F. Alden against the City of Cottage Grove and B. F. Keeney, as Assessor of Lane County, Oregon, to enjoin the imposition of a tax on the property of plaintiffs by the defendant city, for the reason that the land is situated outside the corporate limits, and therefore not subject to such taxation.

From Tillamook: George H. Burnett, Judge. Statement by Mr. Justice Eakin. An action was commenced in the circuit court by E. H. Collis, A. Bonham and Kate Bonham, against W. S. Cone and Mary J. Cone for the recovery of possession of a tract of land in Tillamook County, Oregon; plaintiffs alleging that they are the owners and entitled to the possession thereof, and that the defendants are in possession and wrongfully withholding the property from plaintiffs.

<p>From Multnomah: JOHN P. Kavanaugh, Judge.</p> <p>This is an action by William Bell against Joseph Paquet, A. Giebisch and T. Joplin, partners as Paquet, Giebisch & Joplin, to recover damages for personal injuries. From a judgment in favor of plaintiff, defendants appeal.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. The plaintiff, Gladstone Lumber Company, a corporation, in its own right and as assignee of sundry claims of others, recovered judgment against the firm of Kelly & Mahoney. While the partnership was indebted on the original claims, Kelly conveyed to his wife certain real property; the record title of which theretofore was in the name of them both jointly.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is a suit by the State of Oregon against the Des Chutes Land Company, a corporation. On September 25, 1907, the defendant. entered into a contract with the then State Land Board for the reclamation of certain desert lands in this State under what is known as the Carey Act of Congress and legislation of this State in pursuance thereof.

From Linn: Percy R. Kelly, Judge. Statement by Mr. Chief Justice McBride. The defendant, Jake Bilyeu, was convicted in the justice’s court for violation of the local option law, and appealed from a judgment of conviction to the circuit court, where he was again convicted, from which judgment he appeals to this court.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. The plaintiff in his own right, and as assignee of other claims, recovered a judgment against the defendant A. Lane for $2,800, which, being unsatisfied, he brought this suit against the judgment debtor and Jennie Lane, his wife, Frank Lane and May Lane, his wife, and R. C. Danton to set aside certain conveyances of realty made by A. Lane to Danton and Frank Lane.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Burnett. This is an action by It. A. West against Duncan McDonald.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Moore. This is a suit by the West Side Lumber & Shingle Company, a corporation, against A. G. Herald, doing business as A. G. Herald & Co., and Pauline Waidt to foreclose an alleged lien.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by Rosa Zurcher against the Portland Railway Light & Power Company. The defendant operates a street railway in the City of Portland for the transportation of passengers for hire.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Moore. This is a suit by Charles Bernard, against The Willamette Box & Lumber Company, a corporation, to prevent and remove an alleged public nuisance and recover damages asserted to have been caused by the inconvenience.

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice Burnett. This is a suit by J. Thornton and W. H. Walton against A. C. Hallam, Charles S. Chapman, and Thos. H. Sherrard, to enforce a lien for clearing land.

From Multnomah: Robert G. Morrow, Judge.. Statement by Mr. Justice Burnett. This is an action by Gertrude H. Forrest against the Portland Railway Light & Power Company, a corporation. The facts are as follows: The plaintiff was a passenger in one of the defendant’s street cars, and claims to have been injured in a collision between that car and another one on the same line.

From Douglas: James W. Hamilton, Judge. The defendant, Ed Russell, was indicted, tried and convicted of the crime of incest, and from the resulting judgment and sentence, he appeals.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice Burnett. This is a suit by Hiram Tyree against the Crystal District Improvement Company, a corporation.

Statement by Mr. Justice Moore. This is an action by F. W. Casner against J. A. Hoskins, to recover on three promissory notes of $10,000 each and one note of $1,750, executed by the defendant to the plaintiff, dated at Kansas City, Missouri, April 29, 1905, and payable at that place, the smaller note in 90 days, and the larger notes August 1st of that year, with interest on each from maturity until discharged at the rate of 8 per cent per annum.

<p>Appeal and Error—Notice of Appeal—Undertaking.</p> <p>1. Though the notice of appeal does not sufficiently designate the judgment appealed from, nor the court to which the appeal is taken, the undertaking may be examined together therewith to supply the defects.</p> <p>Appeal and Error—Pinal Order—Order After Judgment—“Order Affecting a Substantial Right.”</p> <p>2. Where, after a decree of divorce, application was made to have an allegation as to the residence of the plaintiff inserted into the complaint which was necessary to jurisdiction, and it was entered after a hearing over the objections of the defendant, such decision was a final “order affecting a substantial right,” and was appealable under Section 548, L. O. L., providing that such an order for the purpose of being reviewed shall be deemed a judgment or decree.</p> <p>Divorce—Jurisdiction—Pleading.</p> <p>3. W/here the complaint in a divorce case failed to allege plaintiff's residence in the State for a year, hut did state the defendant’s residence, the court did not have jurisdiction, and the appearance of the parties affected nothing, and the whole proceeding was void; Section 509, L. O. L., requiring that the plaintiff reside in the State for a year, being mandatory, and prescribes an essential element of the jurisdiction of the subject-matter.</p> <p>Pleading—Time for Amendment.</p> <p>4. Section 102, L. O. L., providing that a court at any time before trial, or before a cause is submitted, may allow a pleading or proceeding to be amended, when the amendment does not substantially change the cause of action or defense, does not give the court power to allow an amendment to a pleading after final decree.</p> <p>Pleading— Amendment— Void Suit— “Substantially Change the Cause of Action.”</p> <p>5. The allowing of the insertion of an allegation of the residence of the plaintiff into the complaint in a divorce case was “substantially to change the cause of suit” under Section 102, L. O. L., allowing the court to permit amendments to pleadings and proceedings when they do not substantially change the cause of action or defense, since it changed a void proceeding to something efficacious.</p> <p>Courts—Juris diction—Amendments.</p> <p>6. Jurisdiction over the subject-matter of a suit cannot be acquired by a mere amendment subsequent to the final submission of the cause, since a court cannot move affirmatively until it has jurisdiction.</p> <p>Appeal and Error—Appeals Prom Void Orders.</p> <p>7. The mere fact that an order was void because out of time and dependent upon a proceeding originally void does not render it not appealable.</p>

<p>False Pretenses—Obtaining Signatures to Written Instruments ■—Elements of Offense.</p> <p>1. Section 1964, L. O. L., makes it an offense to obtain money or property “by any false pretenses, or by any privy or false token, and with intent to defraud,” or by obtaining the signature of any person to a writing with like intent, the false making of which would be punishable as forgery. Section 1541 provides that “upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing; but such pretense, or some note or memorandum thereof, must be in writing, and either subscribed by or in the handwriting of the defendant.” Held, that if the false pretenses are expressed orally they must be accompanied by a false token or writing, and if not so accompanied the false pretense, or some note or memorandum thereof, must be in writing, signed by or in the handwriting of defendant; the latter clause of Section 1541 not referring to a false pretense expressed orally and accompanied by a false token.</p> <p>False Pretenses— “False Tokens”— “False Writings”— What Constitutes.</p> <p>2. “False token or writing,” within the meaning of Section 1541, L. O. L., has reference to something real, visible, and substantial, or some writing purporting to be the act of some person, and so framed as to have more weight and influence in effecting the fraud than the mere assertion of the party defrauding; but such writing need not be subscribed by or in the handwriting .of the defendant.</p> <p>False Pretenses—False “Tokens.”</p> <p>3. In a prosecution for falsely pretending that land contained valuable oil deposits, whereby prosecutor was induced to execute a deed for land in payment for stocks of an oil company which, it was claimed, owned the land, a prospectus of the company describing the property in question, as well as a bottle of oil labeled “Taken From Our Property,” were proper exhibits to go to tlie jury as tokens, within the contemplation of Sections 1541, 1964, L. O. L.</p> <p>Criminal Law—False Pretenses—Evidence—Continuing Offenses.</p> <p>4. Under an indictment charging that on a certain date the defendant made false representations and obtained a signature by false pretenses, etc., it was proper to admit evidence of representations made before that date, such as the issuing of an untrue prospectus and representations made during the negotiations.</p> <p>False Pretenses—Admission of Evidence—intent.</p> <p>5. The admission in evidence of statements of one charged with obtaining a signature by means of false pretenses, after the transaction, was' proper to show previous intent.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by Thomas Darling against S. A. Miles. The essence of the complaint is that the defendant, being the owner of certain lots in Pleasant View, a suburb of the City of Portland, falsely and fraudulently, with intent to cheat the plaintiff, stated to him that one of the lots was of certain dimensions which were greater than the true boundaries of the tract; that the plaintiff, relying upon the truth of what the defendant thus said and believing the same, purchased the ground, and paid for it in cash; and that, by reason of these false and fraudulent representations knowingly made by the defendant and relied upon by the plaintiff, the latter has been damaged in the sum of $400. The material allegations of the complaint having been traversed by the answer, the action was tried by the court without a jury, resulting in findings and judgment for the defendant, from which the plaintiff appeals.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Chief Justice McBride.</p> <p>This is an action by Mary A. Edwards against the Mt. Hood Construction Co. for money had and received. The complaint alleges substantially that the defendant is a corporation engaged in the construction of a railroad, that at certain dates mentioned in the complaint plaintiff, at the request of defendant, furnished 355 meals at 25 cents per meal to divers laborers employed by defendant in construction work on the railroad, and that later she furnished 2,011 meals to laborers so employed by defendant, the total value of all meals so furnished being $591.50. The names and number of meals furnished each laborer are set forth in the complaint. The defendant paid said laborers for their services once a month. The complaint continues as follows:</p> <p>“That defendant aforesaid employed a time-keeper whose business it was and who did keep an account of the names of the men and laborers so employed by said defendant, and the number of days that the said men and laborers who did work and furnished labor and services on said railroad construction work for said defendant in the construction of the said Mt. Hood Railroad, and did make, issue, and deliver to each and all of said men and laborers aforesaid working for said defendant on said construction line aforesaid ‘time checks,’ which said time checks showed and specified the number of days each and every one of said men and laborers were entitled compensation therefor. That said time checks so made and delivered specified and set forth the number of days each man and laborer worked and the amount of money due each one, and also the amount of each individual for hospital fees, commissary supplies, and the amount of each man and laborer so employed aforesaid so indebted and owed plaintiff for board and meals for the time he worked for said defendant upon said construction work aforesaid up to and including the date of issuing of said time check. * * That said defendant by request and consent of the herein named employees retained, deducted, and kept from each and every man aforesaid and named hereinabove, the same being the said men and laborers working on said railroad and construction work as herein-above named, specified, and set forth, the sum of seventy-five cents (75c) per day for each and every day, while each and every man and laborer was employed upon said construction work aforesaid, for his said meals and board, and acted as the agent for plaintiff herein and retained said money and now has said money in its possession and custody. * * That said defendant aforesaid so collected, received, and retained from each of the above-named men and laborers aforesaid and as specified hereinabove the said sum of seventy-five cents (75c) per day belonging to and to pay plaintiff herein for each and every day they were so employed upon said work aforesaid, and for the time between the dates as hereinabove named and specified making a total sum of five hundred and ninety-one dollars and fifty cents ($591.50), which said sum defendant has in its possession and control for and belonging to plaintiff herein. That from and including the twenty-eighth (28th) day of December, one thousand nine hundred and ten (1910), to and including December thirty-first (31st), one thousand nine hundred and ten (1910), and from and including the first (1st) day of January, one thousand nine hundred and eleven (1911), to and including the twenty-sixty (26th) day of January, one thousand nine hundred and eleven (1911), defendant hereinabove named retained and received the sum of seventy-five cents (75c) per day from each and every man and laborer named and specified herein for and on account of plaintiff herein, and which sum is the sum of five hundred and ninety-one dollars and fifty cents ($591.50) which defendant collected, retained and has appropriated belonging to and which was and is the property of plaintiff herein. That plaintiff has demanded said sum aforesaid from said defendant hereinabove named, and said defendant has refused and still refuses to pay plaintiff the said sum or any part thereof. * * That not one of the above-named men and laborers herein specified and named working for said defendant in the constructing of said railroad aforesaid have been paid any sum or amount for the deducted meals and board, or received any money on account thereof, or has received any part of said sum of seventy-five cents ($.75) per day so retained and collected by defendant for them between the dates hereinabove specified.”</p> <p>There was a general denial of all material issues. On the trial plaintiff introduced evidence to the effect that one V. T. White was a sub-contractor of defendant for the construction of a portion of the roadbed, and applied to plaintiff to furnish board for his employees; that she declined to furnish the board on Mr. White’s credit because he had failed to pay for board previously furnished ; that defendant’s general superintendent, Mr. Packer, came to her and told her to go ahead and board the men, and that the construction company would stand good for it; and that relying upon this promise she furnished meals as above mentioned. There was evidence tending to show that the defendant had instructed White, the subcontractor, to give the laborers time checks upon the company’s blanks for the amounts of their wages, deducting board and hospital dues, stating, in effect, that the company would have to pay these in any event, and that these time checks were so given and collected by the men. At the conclusion of plaintiff’s testimony, defendant moved for a nonsuit, which was denied.</p> <p>On the trial the following colloquy took place between court and counsel:</p> <p>“Q. And did you have a contract with that lady to board these men?”</p> <p>The Court: “It is immaterial whether he did or not— I cannot see how it is material in this case whether he had such a contract with her or not.”</p> <p>Mr. Banks: “We will save an exception to the ruling of the court.”</p> <p>The Court: “You may have an exception.”</p> <p>Mr. Banks: “And I also save an exception to the court acting as counsel for the plaintiff in this case.”</p> <p>The Court: “Very well, you may have your exception.”</p> <p>Mr. Banks: “Also save an exception to the court’s actions in favor of the plaintiff in this case as indicated by the court’s demeanor upon the bench.”</p> <p>The Court: “You may take your exception.”</p> <p>Mr. Banks: “And I also save an exception to the court acting in favor of the plaintiff in this case by its mental attitude, and its rulings and its attitude upon the bench, something which this defendant cannot get upon the record, but which is prejudicial to its rights, and before the court has even heard the testimony on behalf of the defendant; and I desire to further except and object, as strongly as I can possibly do so, and insist that it is not the business of the court to undertake to influence the jury by its attitude upon the bench in the trial of this cause, and I will say right here, and without any intention of offering an insult to your honor, and realizing that I am an attorney in the case, but necessarily am here to protect the rights of my own client, that I must protest against the attitude of the court in this case, and I wish the record to show that I am here, and do protest against the attitude of the court, the facial expression of the court in its rulings, the demeanor of the court as shown by its actions upon the bench during the taking of this testimony on behalf of the plaintiff in this case.”</p> <p>The Court: “You may have an exception to every bit of it, and you can get a photographer to take the facial expression of the court, and a phonograph of the voice of the court.”</p> <p>Mr. Banks: “And, if the court is willing, I am willing to put into the record that the court has stated to me, outside the trial of this case, that he did not propose to see the plaintiff in this action defeated, and that that statement was made before the testimony of the defendant had been presented. Does the court want that in the record?”</p> <p>The Court: “Put everything in the record. I tell you now that this infamous case will not be decided against this woman.”</p> <p>Mr. Banks (to stenographer) : “Just take that down, T tell you now that this infamous case will not be decided against this woman,’ just put that into the record.”</p> <p>The Court: “Yes, put that into the record—against this woman it will not be.”</p> <p>Mr. Banks: “And we take an exception to that remark, to the remark of the court just made. Will an exception be allowed, your honor?”</p> <p>The ■ Court: “Certainly, .certainly.”</p> <p>The court also permitted plaintiff, over defendant’s objection, to testify that she was living in a tent, where she could not send her children to school; that she was compelled to stay there and work to pay the bills incurred in boarding the laborers of the construction company; that she and her husband had been compelled to mortgage their home to buy the groceries and provisions used to furnish food for these laborers, and to make other statements of a like character. The admission of this testimony is also alleged as error. Other alleged errors will be noted in the opinion.</p>

<p>From Washington: James U. Campbell, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by the Portland Hardwood Floor Co., against the Chas. K. Spaulding Logging Co., A. S. Sholes, L. M. Sparks, Jennie B. Sholes, David C. Briggs, Emily E. Briggs, Central Door & Lumber Co., a corporation, Wm. Weitzel, doing business under the firm name of Weitzel Bros., C. A. Broderson and H. J. Goff, J. A. Trailer and W. W. Goff, partners doing business under the firm name of Goff Bros., J. S. Loynes, H. R. Underhill and E. Moore, partners doing business under the firm name of Forest Grove Planing Co., E. D. Timms, H. J. Cress and R. W. Phillips, partners doing business under the firm name of Portland Sanitary Floor Co., I. V. Fuqua, to foreclose a materialman’s lien upon a residence erected for the defendant Sholes. He had contracted with the defendant Sparks to erect three dwelling houses by separate contracts. The.latter in turn contracted with the plaintiff for the flooring in the largest of the buildings, which for' convenience will be called the Sholes residence. He took from the defendant Spaulding Logging Company separate contracts for the mill work to be used in each of the dwellings, and during the progress of the work bought from the company a large amount of other material, which he used in the construction of each of the three buildings. The plaintiff instituted this suit against Sholes as owner, Sparks as original contractor, and sundry lien claimants, including the Spaulding Logging Company, to foreclose its lien on the Sholes residence, but before the hearing all other liens had been settled or disposed of in one way or another, until the only remaining claimants were the plaintiff and the defendant Spaulding Logging Company.</p> <p>At the hearing the circuit court established the lien of the plaintiff, and dismissed the claim of the logging company, which appeals.</p>

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a proceeding by Emma Seidel, guardian of Ida E. Seidel, Charles A. Seidel and Nellie Hazel Seidel, for the sale of certain lands belonging to her wards.</p> <p>Acting in pursuance of Section 1359 et seq., L. 0. L., relating to sales by foreign guardians of the lands of their wards situated in this State, Emma Seidel, a Missouri guardian of her minor children, residing in that State but owning land in Oregon, procured from the county court of Lane County a license under date of July 8, 1910, authorizing her to sell the interest of her wards in certain lands situated in that county. She afterwards reported a sale of the premises to David and H. C. Auld for $3,010. On the representation of Charles H. Chick that he would pay 10 per cent advance on the sum realized at this sale and his deposit of $325 in court, the county court on September 30, 1910, vacated this sale, and directed the guardian to sell the property again. At the second sale Chick was the successful bidder at $3,311. On December 30, 1910, the second sale was vacated on the strength of H. C. Auld’s deposit of $375 in court, and his representation that he would pay 10 per cent advance on the bid of Chick. On February 1,' 1911, the land was sold at public auction to Chick for $6,100. Two reports identical in terms were made concerning this sale. One sworn to by the attorney for the guardian was filed on February 3, 1911, and ip pursuance of this report the sale was confirmed by an order made by the county court February 18, 1911, and the other verified by the .guardian in Missouri, filed February 11, 1911, in pursuance of which the sale was again confirmed March 29, 1911. No objection to these orders of confirmation were made by any one in any manner except that on April 14, 1911, Chick appeared and filed a motion in the county court “based upon a petition and the proceedings already had to vacate and set aside the second resale to him on the ground that the same was illegal, invalid, and that he would gain no title to the premises thereunder because the guardian was not present in the State at the time of the sale, did not exercise any supervision thereof, and because the second resale was unauthorized by law, the power of resale having been exhausted by the first resale.” The county court denied this motion, and Chick appealed from the order thereon to the circuit court for Lane County. On August 12, 1911, the court, after making sundry recitals from the record, denied the petition of Chick, and affirmed the orders of the county court. On September 5, 1911, Chick filed a motion in the circuit court to vacate the decree of that tribunal and to permit him to offer proof to show that the guardian, Emma Seidel, was not within the State of Oregon when the second sale was made, and supported his motion by an affidavit of one of his counsel. On January 2, 1912, the circuit court denied this motion to vacate its decree. Chick has appealed from both rulings of the circuit court.</p>

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Bean. This is a special proceeding by George Tazwell against George N. Davis to contest the right of defendant to the office of circuit judge of Department No. 4 of the circuit court of the State of Oregon for the Fourth Judicial District, comprising Multnomah County. The trial court sustained a motion to quash the proceeding, and dismissed the petition. The contestant appeals.

<p>Waters—Public Water Supply—Water Power—Loss of Title by Nonuser—“Ditch”—“Aqueduct”—“Plumes.”</p> <p>1. Section 5136, L. O. L., provides that the owner of a “ditch or mining flume, or water right appurtenant thereto,” who fails to operate or exercise ownership over such property for a period of-five years shall lose the title, claim, and interest therein, etc. Held that, as a “ditch” is an “aqueduct,” which is a water carrier or leader, and “flumes” are usually portions of ditches, a reservoir is not included within the statutory provisions; and nonuser thereof for the period named would forfeit no right.</p> <p>Waters—Public Water Supply—Water Power—“Abandonment.”</p> <p>2. An “abandonment” is an intentional relinquishment of a known right, the intention to be ascertained from the conduct and declarations of the party in respect thereto; and there was no abandonment of a reservoir and water right appurtenant thereto, though the owner gave up its domicile in the State, and there was a nonuser for a period of 10 years, where, before it left the State, it executed a mortgage on the property, and the mortgagee foreclosed and had a sale after its departure, as there was no intention of the mortgagee to abandon; and the mortgagor, by his failure to pay the license fees, etc., could not defeat the mortgagee’s interest.</p> <p>Waters—Appropriation—Action to Establish Right.</p> <p>3. Where defendants lawfully built a reservoir on government land, which plaintiffs subsequently, without any permission from the government, took possession of, irrespective of any question of nonuser of a water right by defendants, plaintiffs’ title would not be quieted because they had no title, and equity would not lend its aid to enable them to acquire property constructed by another.</p>

From Linn: William Galloway, Judge. Statement by Me. Chief Justice McBeide. This is a suit by the Board of Trustees of Albany College against C. M. Monteith, Lottie Pipe and J. V. Pipe, her husband, Arch Monteith and Shelia Monteith, his wife, Christine Keating and W. H. Keating, her husband, to quiet title.

<p>From Hood River: William L. Bradshaw, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by M. Yasui, the assignee of certain lien claimants, against A. C. Hallam, J. Thornton, W. H. Walton, John Champlin, A.- S. Huston, Thos. Sherrard and Charles S. Chapman, to foreclose alleged liens for clearing and improving certain lands.</p> <p>The facts are that the defendants Thos. H. Sherrard and Charles S. Chapman are, and at all times stated herein were, the owners in fee of two tracts of land in section 1, township 1 north, of range 10 east, of the Willamette Meridian, containing, respectively, 21 and 5 acres. Sherrard and Chapman on November 10, 1910, entered into a written contract with the defendant A. C. Hallam, by the terms of which the latter undertook to slash, clear, grub, plow, and prepare for cultivation such tracts of land at $115 an acre, and to accept as part payment thereof another 10 acres, the deed to which was to be placed in escrow until the amount of work performed under the contract equaled $1,250, the stipulated consideration for the 10 acres. The contract subsequently was modified, but the particulars thereof are not deemed essential. In order to comply with the terms of the agreement, Hallam employed 15 Japanese, who began clearing the land November 30, 1910, and continued to work on the premises until January 5, 1911. Not having received any part of their pay, they on March 1, 1911, severally filed with the county clerk of Hood River County, the political subdivision where the land is situated, verified bills of wages due each for the services rendered, containing a statement of the contract, designating the name of the contractor, describing the land by metes and bounds sufficient for identification, and exhibiting the total amount of each claim after deducting all set-offs and counterclaims, as required by law. Section 7490, L. O. L. Thereafter each claimant duly assigned his verified claim to the plaintiff, who instituted this suit. The cause, being at issue, was referred; and, from evidence taken, the court made findings of fact and of law, and, based thereon, decreed a recovery of $670.03, the amount of the several demands, with interest thereon at the rate of 6 per cent per annum from January 5, 1911, $200 as attorney’s fees in the suit, and $75 for preparing and filing the liens, and ordered a sale of the lands to satisfy the sums awarded, whereupon Sherrard and Chapman jointly appealed.</p>

From Polk: Henry L. Benson, Judge. This is an action by Chasteen Hughes, John Bird and W. H. Parker, partners doing business under the firm ñame of The Hughes & Bird Land Company, against Evan Evans! From a judgment in favor of defendant, plaintiffs appeal.

From Multnomah:' John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. This is a suit by W. L. Sharp against Warren Kilborn to cancel a deed alleged to have been delivered by a third party out of escrow, contrary to the conditions of the deposit, to wit, without payment of the purchase price of the realty described in the conveyance.

From Klamath: Henry L. Benson, Judge. This is a suit by A. D. Harpold against W. F. Arant to determine an adverse interest in certain real property in Klamath County, Oregon. The circuit court rendered a decree in favor of defendant, and the plaintiff appeals.

<p>Judgment—Costs as Sole Relief.</p> <p>1. Costs are a mere consequence of a decree granting other relief, and cannot alone furnish the basis of a substantive judgment, so that a decree for costs against a defendant was void where no other judgment was rendered against it.</p> <p>Execution—Conveyance by Sheriff—Setting Aside—Fraud.</p> <p>2. Under Section 215, subd. 1, under E. O. L., requiring the sheriff to first resort to the judgment debtor’s personalty in levying execution, the sale of the debtor’s realty, made pursuant to an understanding between the sheriff and the creditor, who was the purchaser, to ignore sufficient personalty owned by the debtor, was a fraud justifying setting aside the sheriff’s deed.</p>

From Multnomah: Henky E. McGinn, Judge. Statement by Me. Justice Buenett. The plaintiff, A. Lane, secured a writ of habeas corpus to inquire into the legality of his imprisonment by the defendant, T. M. Word, as sheriff of Multnomah County, Oregon.

From Marion: William Galloway, Judge. Statement by Me. Justice Eakin. This is a mandamus proceeding by the Union Pacific Life Insurance Company against J. W. Ferguson, as Insurance Commissioner of the State of Oregon.

<p>Evidence—Expert Evidence—Value.</p> <p>1. Expert witnesses may give their opinions as to the increase in the market value of a lot by reason of a street improvement, and are not limited to giving their opinion of its value before and after the improvement.</p> <p>Municipal Corporations—Public Improvements—Assessment of Damages—Date.</p> <p>2. Where, in a street opening proceeding under the Portland charter, the report of the viewers as to the damages therefrom is adopted by the city council, and an appeal taken to the circuit court, the damages should be determined as of the date when the city council adopted such report, and not of the date of the trial in the circuit court.</p> <p>Evidence—Expert Testimony—Qualifications of Witness.</p> <p>3.A real estate dealer having charge of the sale of a tract of platted land adjacent to the property sought to be condemned, having an idea of the value of land in nearly every section of the country, and a fair idea of the .market value of property in the location of that involved, could testify as to the value of that sought to be condemned.</p> <p>Evidence—Value—Cost Price.</p> <p>4. In a proceeding to assess the damages for property taken for a street, testimony as to the price paid therefor two and one-half years before was properly excluded; the time' being too remote.</p> <p>Evidence—Expert Evidence—Value.</p> <p>5. In a street opening proceeding an expert, duly qualified for the purpose of showing the increased market value of defendant’s property resulting from the opening of the street, was properly permitted to answer a question calling for his opinion as to the amount of benefit which at that time would be conferred on certain adjoining property by the opening and extending of the street.</p>

From Multnomah: William N. Gatens, .Judge. This is an action by the City of Portland against the Investment Company, a private corporation, for an assessment of damages for property condemned for a street. The defendant appeals.

<p>From Tillamook: Robert G. Morrow, Judge.</p> <p>This is a suit by John B. Clark, Nellie W. Bozard and Anne C. Clark against C. D. Latourette, to quiet the •title to certain lands described in the complaint, situate in Tillamook County, Oregon. There was a decree rendered by the lower court in favor of defendant, and plaintiffs appeal. The facts are fully set forth in the opinion.</p>

From Lane: John S. Coke, Judge. Statement by Mr. Chief Justice McBride.

From Marion: Percy R. Kelly, Judge. This is an action by the State of Oregon against Wells, Fargo & Co., a corporation, to collect certain licenses from the express company, upon its annual gross receipts. There was a judgment in favor of plaintiff on its first and second causes of action, and in favor of defendant on the third. As to the third cause of action the State appeals and respondent now moves to dismiss the appeal. Statement by Mr. Chief Justice McBride.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Bean. This is a suit by Thomas C. Devlin, as receiver of the Oregon Trust & SayingsJBank, to recover of the defendants on the ground that they were negligent in the discharge of their duties as directors of the bank, and that they misappropriated the property and funds of the same.

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Statement by Me. Justice Bean.</p> <p>This is a suit by Thomas C. Devlin, receiver, against the defendants W. H. Moore, Henry A. Moore, S. W. Stryker, G. L. Estes, W. Cooper Morris, E. E. Lytle, Leo Friede, and J. F. Reddy. The lower court dismissed the suit as to the defendants Lytle, Friede, and Reddy, and entered a decree against the other defendants for $14,500, from which they all appeal, except W. C. Morris.</p> <p>This case was consolidated for trial in the court below with that of Devlin, Receiver, v. Moore, 64 Or. 433 (130 Pac. 35), and the evidence was taken as for one case. Many of the legal propositions presented apply equally to both cases. Therefore what we have said in the opinion in the principal case need not be repeated here. In what is termed in the briefs as the Pacific & Eastern suit, the allegations of the complaint are in substance as follows: That some time between January 1, 1907, and May 27, 1907, the defendants conspired to use the funds of the Oregon Trust & Savings Bank to acquire the property of the Medford & Crater Lake Railroad Company for their own use and profit. That as to the defendants E. E. Lytle, H. A. Moore, and Leo Friede it is averred that all the transactions set forth were matters of common knowledge. That the defendants either joined in the conspiracy or were guilty of gross negligence or inattention to their duties as directors of the bank. That the Crater Lake Railroad Company was organized prior to January 31, 1907, and that it executed a first mortgage on all its properties for $45,000 to one C. A. Dewing. That in a suit in Jackson County defendant Reddy was appointed receiver. That the mortgagee was not a party to such suit.</p> <p>The complaint further alleges that the Estacada State Bank was an organized state bank, with a capital stock of $20,000, of which defendant Geo. L. Estes was president, and defendant Stryker a director, and that the two dominated such institution; that defendant Reddy was also a stockholder in the Oregon Trust & Savings Bank during all the time that he was receiver of the Crater Lake road; that pursuant to the alleged conspiracy the parties thereto caused the defendant Reddy, as receiver, to make application for an order for the sale of the properties of the Crater Lake railroad; that such order was entered, and, the properties being offered for sale, defendant Estes bid $82,500 for the same, subject to a first mortgage of $45,000; that this was reportéd to the court, the bid accepted, and an order made directing the receiver to convey the properties to Estes upon payment of such sum; that Estes had no money or means . with which to purchase; that in payment of the purchase price the president and cashier of the Oregon Trust & Savings Bank issued to the receiver Reddy a certificate of deposit for $81,500, and a cashier’s check for $1,000; that to cover the issuance of the check and certificate of deposit there was entered in the account of the Oregon Trust & Savings Bank a fraudulent and fictitious entry to bonds and warrants of $41,250, and there was also entered for a like amount a certificate of deposit issued by the bank of Estacada in favor of the Oregon Trust & Savings Bank. It is averred that the certificate of the Estacada Bank was issued fraudulently, and that the same was of no value; that the Pacific & Eastern Railway Company was afterwards organized with a capital stock of $1,000,000, divided into shares of the par value of $100 each; that the defendants Estes, Stryker, Morris, and W. H. Moore each subscribed for 1,250 shares, and that the first three were elected as directors; that the stockholders authorized the issuance of bonds on all the properties of the Pacific & Eastern, and that thereafter the Crater Lake road, purchased from the receiver Reddy, was conveyed by Estes to the Pacific & Eastern; that a trust deed or mortgage upon the railroad properties was authorized and executed to the Oregon Trust & Savings Bank, trustee, to secure an issue of $1,000,000 in bonds; that a considerable part of the bonds was issued ; that between the 28th day of May, 1907, and the 21st day of August, 1907, the officers of the Pacific & Eastern Railway Company drew out of the Oregon Trust & Savings Bank $18,500 of its funds, and took over and appropriated the same to the use and benefit of the officers, directors, and stockholders of the Pacific & Eastern. It is further alleged that bonds to the par value of $100,000 of no value, were deposited with the Oregon Trust & Savings Bank as security for the certificates of deposit, loans, and advances; that bonds to the amount of about $50,000 were placed in the Estacada Bank as security for the certificates of deposit issued to the Oregon Trust & Savings Bank; that thereafter, pursuant to an order of the court, plaintiff Devlin surrendered to the Estacada Bank the certificate for $41,250, in consideration of the release of an apparent balance due the Pacific & Eastern Railway Company upon an open account, and surrendered to receiver Reddy the $100,000 bonds of the Pacific & Eastern in consideration of the surrender by Reddy to the plaintiff of the certificate N deposit of the Oregon Trust & Savings Bank for $81,500; that that is all that was recovered; that the loss to the Oregon Trust & Savings Bank was $18,500 drawn out and converted to the use and benefit of the officers, directors, and stockholders of the Pacific & Eastern Railway Company; that the Medford & Crater Lake Railroad Company’s properties were worth not to exceed $50,000; that Estes executed a conveyance of the Crater Lake Road properties in consideration of the issuance to the defendants Estes, Stryker, Morris, and W. H. Moore of $500,000 of the capital stock fully paid up and non-assessable, divided equally between these four men; that between that time and the failure of the bank the defendants interested in the railroad company, through its agency, withdrew from the funds of the Oregon Trust & Savings Bank $13,500; that a cashier’s check issued at the time of the purchase of the road was cashed by defendant Reddy as receiver; that the plaintiff in effecting a settlement by which he obtained a cancellation of the certificate of deposit issued to Reddy was compelled to pay $1,000 out of the funds of the receivership estate. The defendants filed pleas in abatement which were tried, and a decree rendered, identical with the decree in the principal case. The answers interposed in this case by the defendants are in their essential respects the same as those interposed in the main case.</p> <p>On the part of defendants the following facts are claimed: That the Pacific & Eastern Railway Company was worth from $125,000 to $150,000; that, in addition to the $50,000 which the four men agreed to furnish, it was intended to borrow a sufficient amount to put the plant in good shape, and to either operate or sell it; that something over 11 miles of road had been constructed, graded, tied, and ironed; that from the day of the organization of the Pacific & Eastern Railway Company it was a going concern and constantly grew stronger; that the evidence shows that there was a considerable amount of money put into the enterprise by the parties, and that ultimately other parties came in and purchased large blocks of the stock; that the road has' ever since been a paying proposition, meeting all of its obligations, and that plaintiff could have recovered from it every dollar that it owed the bank; that he failed and neglected to do so, and, instead, turned the whole matter over to the German-American Bank under its ' purchase of Oregon Trust & Savings Bank assets; that the German-American Bank made a settlement of the matter, whereby it surrendered to receiver Reddy the $100,000 in bonds in consideration of the return of the $81,500 certificate of deposit, and as a part of the transaction surrendered to the Estacada Bank its certificate of deposit for $41,500 in consideration of the surrender by the Estacada Bank of certain claims it held against the Oregon Trust & Savings Bank. It is admitted on the part of W. H. Moore and Morris that it was not a wise step for them to take because they were directors of the Oregon Trust & Savings Bank, but that it was not in violation of their duties or fraudulent; that the advances made to the Pacific & Eastern Railway Company were made on the strength of the Estacada Bank certificate of deposit which was surrendered without any attempt to collect the advances made on the open account; that $5,000 of the $18,500 balance against the Pacific & Eastern was a commission charged by the bank against the Pacific & Eastern as a discount on the $100,000 in bonds, which should be deducted therefrom.</p>

From Coos: John S. Coke, Judge. Statement by Me. Chief Justice McBride. The defendant, H. M. Brown, was indicted for the crime of practicing dentistry without recording his certificate.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by Elizabeth Merriam against W. B. Hamilton.

From Klamath: Henry L. Benson, Judge. This is a suit by H. R. Dunlap against Arthur C. Lewis relating to the sale and purchase of certain lots in the City of Klamath Falls. The facts are fully set forth in the opinion. There was a decree in favor of plaintiff, from which defendant appeals.

From Multnomah: Robert G. Morrow, Judge. This is a suit by bill of interpleader by the Ladd & Tilton Bank against the Commercial State Bank, the Standard Broom Company, the Interstate National Bank and W. P. Nelson. The facts are fully set forth in the opinion.

<p>Constitutional haw—Police Power—State Exercise.</p> <p>1. The power of a state, by proper legislation, to protect the health, promote the morals, and prevent the introducFon of any infected articles of trade that would necessarily injure property or affect persons is a matter of self-preservation, the exercise of which is not limited by any clause of the Federal Constitution.</p> <p>Commerce—Interstate Commerce — Regulation — Sale of Carriages.</p> <p>2. The sale of carriages within the state by soliciting agents going through the country is not so inherently harmful as to entitle the state to regulate the same in the exercise of police power, where the sales constitute interstate commerce, though the conduct of the agents may not be governed by the strictest rules of probity in business.</p> <p>Commerce—Interstate Commerce—What Constitutes.</p> <p>3. Plaintiff, a carriage manufacturer in Iowa, sold the same through Oregon by means of agents who traveled through the country taking .orders for carriages, which were sent to plaintiff’s place of business in Iowa, where another agent would ascertain the financial responsibility of the proposed buyer, and, if found to be good, plaintiff would ship the vehicle to Oregon, when it would be delivered by another agent, thereby transferrring title to the buyer. Held that, under such system, the carriages were in fact sold in Iowa, and the sales constituted interstate commerce.</p> <p>Injunction—Void Statute—Enforcement</p> <p>4. Injuction will lie to prevent officers from enforcing a void statute, the enforcement of which will affect a party’s property rights.</p> <p>Commerce—Interstate Commerce — State Statutes — Licenses— “Peddlers.”</p> <p>5. Section 4961, L. O. L., defining “peddlers” to include every person who, for himself or as agent of another, goes from place to place or from house to house selling, or offering to sell, for future delivery, by sample or catalogue, at retail to individual purchasers who are not dealers in the article sold, any goods or wares or merchandise, and Section 4963, imposing a license tax thereon, in so far as it purported to include agents for nonresidents selling goods in interstate commerce, amounted to a tax on such commerce, and was therefore void.</p> <p>ON REHEARING.</p> <p>Injunction—Action—Pleading—Anticipating Defenses.</p> <p>6. Where the complaint, in an action to enjoin criminal prosecutions for the violation of a statute imposing a license tax on agents for nonresidents selling goods in interstate commerce, fairly showed that the goods when ordered were in another state, the complaint was sufficient in that respect, and it was not incumbent upon plaintiff to anticipate a defense and to set forth matters which properly belonged to the adverse party to allege.</p> <p>Appeal and Error—Rehearing—Grounds—Objection Not Taken to Pleadings.</p> <p>7. Where defendant, in an action to enjoin criminal prosecution for the violation of a statute imposing a license tax for nonresidents selling goods in interstate commerce, in which the complaint sufficiently showed that the goods when ordered were outside the state, filed no answer averring that the goods sold by plaintiff’s agents had been shipped into this State in original packages before orders therefor had been taken, his petition for a rehearing, on the ground that it had not been shown that the goods were outside the State when ordered, should be denied.</p>

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. This is an action by Leo Hirschfeld against J. S. Mc-Cullagh to recover an amount alleged to be due on a promissory note.

From Multnomah: James U. Campbell, Judge. Statement by Mr. Justice Burnett. The plaintiff, J. W. Bell, is a justice of the peace in Portland, a city of more than 100,000 inhabitants, in Multnomah County, of this State, of which county the defendant is the auditor.

From Klamath: Henry L. Benson, Judge. Statement by Mr. Justice Burnett.

<p>Bailment—Common-Law Liens—Charges.</p> <p>1. One to whom pérsonal property is brought for repairs has a common-law lien for the value of his labor and material entering into the repairs.</p> <p>Bailment—W aiver.</p> <p>2. One does not waive his common-law lien for repairs on an engine by delivering the engine to an express company to carry to the owner; such company being the shipper’s agent.</p> <p>Carriers—Freight—Delivery — Conditions — Fraudulent Bill of Lading.</p> <p>3. One having a common-law lien on ah engine for repairs gave it to a drayman to take to the station, and ship by express to the owner C. O. D. While it was on the carrier’s platform, where the drayman had put it, and in his temporary absence, the owner’s agent fraudulently represented himself to the carrier’s, agent to be the shipper, and procured from him a bill of lading. Held, that this was void, and did not deprive the real shipper, or his agent, the carrier, of right to demand payment of the lien, as a condition to delivery.</p> <p>Carriers—Freight—C. O. D. Shipment—Delivery.</p> <p>4. One agreeing that goods shipped to him on which an understood charge is made, shall be shipped C. O. D., in effect agrees that he will pay such charge, and that the shipper or his agent, the carrier, may hold possession till it is paid; so that he may not have possession without paying it.</p>

<p>Negligence—Use of Property.</p> <p>1. While a landowner may do whatever he will with his property, he cannot use it so as to imperil the rights of others, and, if he undertakes to do an act by which the conduct of others may be affected', he is bound to act in such a manner that those who are led to a course of action shall not suffer loss by his negligence, consequently a landowner who has a spur track upon his property is liable for his negligence in piling lumber so close to the track that a servant of the railroad company in switching cars thereon was injured.</p> <p>Negligence—Question for Jury—Contributory Negligence.</p> <p>2. In a personal injury action, when the defense of contributory negligence is urged, it must be submitted to the jury, unless from all the evidence it appears that reasonable men acting as the triers of fact, would necessarily find, either that the plaintiff knew and appreciated the danger, or that ordinarily prudent men under the same circumstances would have acquired such knowledge and appreciation.</p> <p>Negligence—Question for Jury—Contributory Negligence.</p> <p>3. Where a lumber corporation which had a spur track upon its property piled the lumber so close to the track that, when it leaned over, it would naturally strike a brakeman riding on the steps of a car switched on the track, the question of the brakeman’s contributory negligence in failing to notice the danger is for the jury, since contributory negligence will not be imputed as a matter of law to a person who receives an injury from a danger simply from the fact that it might have been seen, and the nature of the brakeman’s duties being such as to necessarily distract his attention.</p>

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is a suit by A. E. Chenoweth against F. W. Spencer, doing business as Spencer Hardware Company, Otto Hansen, J. W. Meredith, Perfection Sewing Cabinet, a corporation, The Chas. K. Spaulding Logging Company, a corporation, and C. A. Rainwater. The facts are as follows:</p> <p>Defendant Meredith, being the owner of lots 1, 3, and 4, block 3, Depot Addition to the City of Salem, on June 14, 1910, entered into a contract with Emig and Yates, by which he sold to them the said lots for the price of $4,800, to be paid in installments. Upon said lots there were situated a building and certain machinery. By the terms of said contract the purchasers were to have possession, and were to keep the building and machinery insured for the benefit of Meredith. The purchasers paid upon the said purchase price $250 at the date of the purchase, $1,100 on August 1, 1910, and $1,500 on August 17, 1910. On or about the 1st day of July, 1910, the building and machinery were destroyed by fire. Thereafter, during the year 1911, certain buildings were erected on said lots, and on lot 2 of said block, said lot 2 being owned by Voget, by the Perfection Sewing Cabinet Company, a corporation, organized by Emig and Yates and successors to them in the right to the possession of said lots 1, 3, and 4; and it is for material furnished by the plaintiff and the defendants Spencer and Hansen, respectively, for which materialmen’s liens are claimed, and are herein sought to be foreclosed. The plaintiff on June 24, 1911, filed a notice of lien under the statute with the clerk of Marion County, Oregon, setting forth a statement of his demand and of a lien upon the said building and lots in the sum of $77.60. Thereafter, prior to the completion of the said building, and prior to the commencement of this case, said building was destroyed by fire, and plaintiff brings this suit to establish and foreclose his lien against said lots 1, 3, and 4. Defendant F. W. Spencer answered, setting up a lien in the sum of $209, notice of which was filed on June 17th. Defendant Otto Hansen in his answer set up a lien in the sum of $240.76, having filed his notice of claim July 6th. Defendant Meredith answered, denying the allegations of the complaint, and alleging his ownership of lots 1, 3, and 4, his contract of sale thereof to Emig and Yates, the destruction of the building on the property after he sold the same, and that the liens do not extend to the lots; the buildings which were the basis of the liens having been destroyed. The construction of the buildings was commenced about January, 1911, but they were not completed, having been destroyed by fire on the 12th day of August, 1911. This suit was commenced on August 19, 1911. Upon the trial of the case in the circuit court, findings and decree were made and rendered in favor of plaintiff, Spencer, and Hansen, as prayed for, and Meredith appeals.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Bean. This is an action by Louise Devroe, Administratrix of the Estate of Clement Devroe, deceased, against the Portland Railway, Light & Power Company, a corporation, for personal injuries. The jury returned a verdict in favor of plaintiff, and from a judgment thereon, defendant appeals.

From Multnomah: William N. Gatens, Judge. This action was begun by Dan R. Murphy against Prosper W. Smith, in which, after defendant’s death, the court made an order refusing to continue the action as against Lydia G. Tillson and Anna B. Smith, and plaintiff appeals.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Eakin. This is a suit by Jesse Hobson against M. H. David, administrator of the estate of John B. David, deceased, A. P. Oliver and J. C. Colcord. The facts are as follows: On July 8, 1889, John B. David entered into an agreement with the plaintiff and defendants Oliver and Col-cord for the platting and sale of certain lands owned by the said John B. David.

<p>Fraudulent Conveyances—Conveyance by Husband to Wife— Vacation.</p> <p>Where a wife, having inherited certain funds from her father’s estate, invested the same with others in certain land, but the deed by mistake of the scrivener was executed in the name of her husband and the three other co-owners, and, after the mistake was discovered, the husband executed a deed to the property to his wife to correct the mistake, such deed was not fraudulent, and the wife’s interest was exempt from the claims of the husband’s creditors, under Section 5, Article XV, Constitution, providing that the property of a married woman shall not be subject to the debts or contracts of her husband.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by Rosa B. Guild against the Portland Railway, Light & Power Company.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. This is an action by Fred A. Bredemeier and George Menzel against the Pacific Supply Company, a corporation, for damages for the breach of a contract. The cause was tried before a jury, and a verdict rendered in favor of plaintiff for the sum of $2,655. From a resulting judgment, defendant appeals.

<p>Master and. Servant—Injuries to Servant—Evidence—Repairs.</p> <p>1. While evidence of subsequent repairs to a machine 'which caused injury to a servant is inadmissible to show negligence, nevertheless, where the jury viewed the machine, evidence of changes since the accident is admissible.</p> <p>Damages—Injury to Servant—Evidence.</p> <p>2. In an action by a servant for personal injuries, where the complaint which alleged that he was permanently disabled from working at his trade and that his earning capacity was greatly lessened was denied by the answer, evidence that plaintiff could only do farm chores after the injury, and could do very little work, is admissible.</p> <p>Tidal—Recejition of Evidence—Rebuttal.</p> <p>3. In an action by a servant who was injured while using a polisher, testimony by a witness, who was not present when the servant closed his case, that he worked with the same machine and that it was wabbly, the boxing being worn and loose, is properly admitted where no specific objection was made and the court treated a blanket objection as one that the evidence was not rebuttal; it appearing that no question was raised as to when the witness worked with the machine in question.</p> <p>Master and Servant—Injuries to Servant—Questions for Jury.</p> <p>4. In an action by an injured servant, evidence of the master’s negligence held sufficient to go to the jury.</p>

<p>Appeal and Error—Review—Sufficiency of Bills of Exception.</p> <p>In an action against the Meadow Lake Lumber Company to recover the price of meat sold, a bill of exceptions complaining of the exclusion of evidence to show that such meat was charged to the K. Logging Company by direction of defendant’s representative, but not showing whether plaintiff was trying to prove that he delivered the meat to defendant and charged it to the K. Company, or that he delivered and charged it to the K. Company by direction of defendant’s representative, or that he offered to prove that he sold or delivered any meat to either corporation, was insufficient under Section 171, L. O. L., requiring bills of exception to state so much of the evidence as is necessary to explain the objection, since it could not be determined whether or not the proposed testimony was relevant.</p>

From Linn: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit by Hattie A. Cruson against the City of Lebanon to enjoin the city from opening a certain alley within the corporate limits of said city.

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action by Samuel M. Montgomery against the Southern Pacific Company, a corporation, and is brought under the act of Congress of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), generally known as the Employer’s Liability Act. The principal question involved in this case is whether or not plaintiff was engaged in interstate commerce, at the time he was injured, so as to bring him within the terms of that act. At the time of the accident complained of, plaintiff was employed by the defendant as a brakeman in one of its switching crews, engaged in making up trains between Weed, California, and Pioneer, in the same State. The defendant company was engaged in interstate commerce, operating a main line of railroad between Portland, Oregon, and San Francisco, California, and also a branch line extending from the main line at the station of Weed, and running up into Oregon to Klamath Falls._ Its principal business was in carrying freight and passengers from State to State. The duties of the switching crew were to assist in making up trains, setting cars in and out, and keeping the road clear and ready for traffic. Their section of road extended from Weed south to Pioneer, a distance of about 14 miles. This part of the road was situated in a lumber region. There were many large mills and factories at the different places, from which large shipments of lumber, box material, etc., were made to all parts of the United States, and also to local California points. Empty cars would be left at these switches by regular trains, and it was the duty of the switching crew to set them in for loading, and, when loaded, to pick them up and set them out upon a sidetrack next to the main line in such a position that they could be conveniently taken up by the regular trains. It was also the duty of the switching crew to collect these cars at different stations and carry them over the mountains to Sisson, from which place they could be more easily transported by the regular trains; the grade going south being too steep for heavily loaded trains to attach the cars at Weed and other points north. The evidence tended to show that the shipments from Weed were largely interstate shipments, and that all this interstate traffic was necessarily moved every day by the switching crew; that the interstate freight, and also the intrastate freight, was carried at times in foreign cars which came from roads in the east and middle west, and sometimes in cars belonging to the defendant company.</p> <p>On the morning of the 16th of May, 1909, plaintiff started out with the switching crew for the purpose of moving any interstate commerce, and also of handling any local business, that there might be along the road. During the day they switched and moved cars, destined to points outside of the State, around the yard that they might be taken up by the regular trains in the usual course of business. On this day they went down as far as Sisson. Defendant claims that all cars handled by this train on this day were from and destined to points within the State of California. Plaintiff testified on this point as follows:</p> <p>“Q. What are the facts as to whether during that time you were or were not handling cars for points out of the State of California, both loaded and unloaded, and to what extent?</p> <p>“A. We were handling cars going out of the State of California, quite a number of them, day after day— every day.”</p> <p>On the way back from Sisson, before putting up their engine for the night, they undertook to move an oil car at the station of Weed. This car had come from the oil fields of California, and was being moved, primarily, for the purpose of providing fuel for the engine which was to run up into Oregon on the interstate road on its regular trip, and also for the purpose of providing their own switch engine with oil in order that they might continue on the morrow in the handling of articles of interstate, as well as state, commerce. From this car they pumped oil into the tank of the engine. While engaged in moving the oil car in the regular course of business, by some miscalculation it was left standing on the point of the frog at the intersection of the wye of the main line running into Oregon. In order to clear the track for the incoming passenger from Oregon on this branch line, and to get the car to the point where it was to be left for the purpose of supplying oil, it was necessary to move the car from the frog. It was thought necessary to move the car by chaining it to the engine and by moving the latter forward on one branch of the wye, thereby throwing the car farther along the other track, which was nearly parallel at this point, until it passed the frog so that the engine could get by. While at this wye, plaintiff was standing near the car attending the chain, when the engineer suddenly and violently started up his engine in such a way that it threw the chain suddenly around and caught plaintiff’s hand. Then the engineer continued to start and stop violently several times, causing the plaintiff’s hand to be entirely torn off.</p> <p>Upon the trial of the cause it appeared that plaintiff had been at work in the employ of the defendant from May 9 to May 16, 1909. Counsel for plaintiff inquired of the witnesses in regard to the setting of cars loaded by one of the lumber companies at that place, during the above-mentioned time, that were to be shipped beyond the California line. Objection was made by counsel for defendant for the reason that the evidence was confined to the day and time of the accident. The court sustained the objection, whereupon plaintiff offered to prove the following facts:</p> <p>“That the business in which the plaintiff was engaged was generally that of handling both interstate and state traffic; that they would start out in the morning to find what work was to be done, with the intention and instructions to switch whatever cars were ready to be switched, whether interstate or state, and to ascertain whether there were any interstate cars to be switched, and' to switch them if there were; that the oil car which they were engaged in moving at the particular time contained oil which was being removed to another point in the yard of the company for the purpose of getting it off the track and out of the way of traffic on the main line up to Klamath Falls, and also for the purpose of placing it where the oil in the car could be distributed and used; that the oil in the car was some of it to be distributed to engines of the defendant running out of the State of California and into the State of Oregon, and other portions of it were to be used by the plaintiff and the train crew, of which he was a member, and was placed -up there that night, partly that they might get oil for their engine on the morrow for the purpose of going out.on their regular trip to switch and distribute interstate and state commerce alike, and to be used by them on other succeeding days in the same way; and there was no other crew doing that kind of switching or any switching at Weed and other stations within that district during the time that plaintiff was so employed; and that their crew did all the switching, both state and interstate.”</p> <p>The trial court sustained the defendant’s objection to this offer of proof, and ruled that before the plaintiff would be engaged in interstate commerce, within the meaning of the act of Congress, he must have been engaged at the time in handling a car which either came from out of the State or was bound outside of the State, or was passing through the State. There was testimony tending to show the negligence of the engineer and the resulting injury.</p>

<p>Intoxicating Liquors—Bonds—Sufficiency in Number of Sureties —Surety Companies—Statutes.</p> <p>1. Since, in amending by initiative the charter of the City of Woodburn on April 27, 1909, chapter 10, § 2, of the charter, as amended by the legislature February 7, 1899 (Sp. Laws 1899, p. 526), requiring “two or'more sufficient sureties” on liquor bonds, was copied without change, it is not to be regarded as a new statement of the law, and is controlled by Laws 1899, p. 193, enacted February 20, 1899, providing that where a surety company executes a bond there is a full compliance with any law, charter, or ordinance, demanding that such bond be signed by one or more sureties.</p> <p>Intoxicating Liquors—Admissions—Action on Liquor Bond— Proceedings in Criminal Action.</p> <p>2. In an action on the bond of a liquor dealer, proceedings in the recorder’s court wherein the defendant pleaded guilty to the charge on a statement of the same facts assigned as a breach of the bond, except that the place of such breach, which was a sale to a minor, was only charged to have been within the city limits, and not at defendant’s place of business, are competent evidence to show at least that a sale was made to a minor, on the same footing as any other oral admission.</p> <p>Intoxicating Liquors—Liquor Dealers’ Bonds—Place of Breach.</p> <p>3. In an action on a liquor dealer’s bond, given in connection with a license to do business at a place named, and conditioned for the keeping of an orderly house and for compliance with law, etc., violations of law at that particular place must be shown to render the surety liable.</p> <p>Appeal and Error—Invited Error—Evidence.</p> <p>4. Where a recorder was testifying as to what a defendant in an action on a liquor dealer’s bond had said in making a plea in a criminal action concerning the same breach, and defendant objected that the record was the best evidence, he cannot complain if plaintiff introduces such record.</p> <p>Intoxicating Liquors—Bonds—Place of Breach—Evidence.</p> <p>5. In an action on a liquor dealer’s bond given in connection with a license to do business in a certain place, evidence held to warrant a finding that the breach complained of was committed at such place.</p> <p>Judgment—Res Judicata—Nature of Judgment—Criminal Prosecution.</p> <p>6. In an action to forfeit a liquor dealer’s bond for a violation of law, the plaintiff was bound to prove the breach as a new proposition, without reference to a prior conviction for the same violation in the recorder’s court.</p> <p>Witnesses—Impeachment—Inconsistent Statements.</p> <p>7. In an action on a liquor’ bond, plaintiff can introduce affidavits of two of its witnesses made in a criminal action in regard to the same violation of law to explain the apparent inconsistency of using such witnesses who gave evidence palpably adverse to the plaintiff.</p> <p>Witnesses—Responsiveness of Answers—Motion to Strike.</p> <p>8. Where the court had ruled that testimony should be confined to or about a certain time, and a witness was asked what a person was doing about the date given, a motion to strike the answer unless the witness specified the time was properly denied.</p> <p>Pleading—Objections to Evidence as Not Within Pleading.</p> <p>9. In an action to forfeit a liquor dealer’s bond given in connection with a license to do business at a certain place, it is too late on appeal to urge for the first time that a breach, regarding which there was testimony, was not alleged to have occurred in the place named in the bond.</p> <p>Intoxicating Liquors—Dealer’s Bonds—Allowing Minors to Loiter —Evidence.</p> <p>10. In an action to forfeit a liquor dealer’s bond, evidence held to warrant a finding that defendant allowed a minor to loiter in his place of business.</p> <p>Intoxicating Liquors—Harmless Error—Evidence—Issues— Pleading.</p> <p>11. In a suit on a liquor dealer’s bond, the admission of the records of the common council declaring a forfeiture of the bond was not erroneous, where such forfeiture had been alleged in the complaint and admitted by the answer.</p>