Volume 66 — Oregon Reports

<p>From Multnomah.: William L. Bradshaw, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action by Elizabeth Kelly against the Lewis Investment Company to recover damages for a personal injury. The complaint charged in effect that the defendant is a corporation; that it owns in Portland, Oregon, a 10-story building, having on each floor rooms which it leases, and for the accommodation of its tenants and persons dealing with or calling upon them it maintains and operates a passenger elevator; that on August 8, 1911, the plaintiff was employed by one of such tenants, and with others occupied a room in that building on the sixth floor, where she entered the elevator; that the defendant so negligently operated the car that it dropped nearly four stories when it suddenly stopped, in consequence of which she sustained severe internal injuries, particularly describing them, to her damage in the sum of $20,000.</p> <p>The answer denied the negligence and the extent of the injuries complained of, admitted the other averments of the plaintiff’s primary pleading, and for a further defense alleged that the accident referred to was unavoidable.</p> <p>The reply controverted the averments of new matter in the answer, and the cause, having been tried, resulted in a verdict and judgment for the plaintiff in the sum of $7,500, and the defendant appeals.</p>

From Harney: Dalton Biggs, Judge. Statement by Mb. Justice Bean. Plaintiff, Jay Jenkins, brings this suit against Samuel F. Jenkins for an accounting and dissolution of a copartnership between plaintiff and defendant.

From Baker: William Smith, Judge. Statement by Mr. Justice Burnett. This is an action by tbe Oregon Mill & Grain Company against C. Kirkpatrick.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice Eakin. This is an action by E. M. Greig, as trustee in bankruptcy of tbe estate of Howard N. Ford, a bankrupt, against C. C. Mueller, as trustee for tbe First National Bank of Vale, Vale, Oregon, and tbe First National Bank of Ontario, Ontario, Oregon, and tbe First National Bank of Vale, Oregon, and Tbe First National Bank of Ontario, Oregon.

From Marion: Percy E. Kelly, Judge. Statement by Mr. Justice Eamsey. This is an action brought by Fred Palmer to recover from the E. Clemens Horst Company, a corporation, a balance of $252.50, for work and labor in the capacity of hop inspector and as an accountant, rendered for the defendant. The total amount of the account was $505, and all of the account was paid but $252.50. The complaint alleges that the work and labor were reasonably worth said sum.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. 'Justice Eakin. The action was by Ashley & Bnmmelin, a corporation, against M. S. Himmelfarb to recover upon a promissory note. The answer denies the allegations of the complaint and affirmatively alleges facts seeking to show that defendant took one Dow to plaintiff’s bank to have a draft, in the sum of $845, cashed; said draft being drawn on the Everett Bank of Everett, Pennsylvania.

<p>Principal and Surety — Eights of Surety as to Creditor.</p> <p>1. Where a briekmaker had made several different contracts with the same buyer for the sale of bricks, the last of which was assured by a surety bond, the surety company could not require brieks thereafter delivered to be credited by the buyer upon the contract assured by it, unless the bricks delivered were the identical brieks described in that contract.</p> <p>Principal and Surety — Remedies of Creditor — Questions for Jury.</p> <p>2. Where the evidence was conflicting as to whether they were the identical brieks, the court could not direct a verdict for the surety company on the ground that the contract had been peformed.</p> <p>Principal and Surety — Liability of Surety — Notice of Principal’s Default.</p> <p>3. Where a surety bond required the indemnitee to notify the surety company immediately after the occurrence of an act involving loss should come to his knowledge, all that was required of the indemnitee was that he notify the surety company with due diligence and within a reasonable time.</p> <p>Principal and Surety — Remedies on Bond — Questions for Jury.</p> <p>4. Where the evidence was conflicting as to whether the notice was given within one day or eight days after knowledge by the indemnitee, it was a question solely for the jury whether it was given within a reasonable time, whichever length cf time actually elapsed.</p> <p>Principal and Surety — Liability of Surety — Nature.</p> <p>5. Since it has become common for corporations to beeome sureties for an adequate consideration, the strictness of the old rules regarding suretyship has been relaxed, and a surety company must show some injury caused by failure to give notiee, as required in the bond, before it can be absolved from its contract.</p> <p>Principal and Surety — Remedies of Creditor — Evidence.</p> <p>6. Where a complaint, upon a bond securing a contract for the sale of bricks, alleged failure to deliver the bricks, the answer affirmatively asserted that the bricks had been furnished according to the contract, and the replication was a general denial of the new matter in the answer, it was proper for the plaintiff, after the defendant had brought out upon cross-examination of him that a quantity of brieks had been delivered, to prove the exact number of bricks delivered and the time and place of their delivery, to show that they were not the brieks sold under the assured contract, since that was not a matter of confession and avoidance.</p> <p>Appeal and Error — Verdict of the Jury — Conclusiveness—Questions of Fact.</p> <p>7. Where a surety bond required the creditor to give notice of breach by the principal in writing to the president of the company at its principal offiee, and there is sufficient evidence that the notice was given, the determination of the jury on that question is conclusive.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice McNary.</p> <p>This is an action of ejectment instituted by plaintiff, E. D. Kingsley, to recover from the defendant United Railways Company, a corporation, possession of a quantity of land, being approximately 28 acres in Multnomah County, Oregon, and damages for the wrongful taking and withholding of the premises and for the rent, use and occupation thereof. After alleging the corporate existence of defendant, and that it is engaged in operating an electric railway, plaintiff avers that during the month of April, 1906, A. L. Mills executed and delivered to plaintiff a bond for a deed to the above-described premises, and that simultaneously therewith placed plaintiff in possession of the property, and that he is entitled to the exclusive occupation of the same. Continuing, plaintiff alleges that defendant in the month of April, 1908, without right or title thereto, entered upon the premises and ousted plaintiff therefrom, and does now wrongfully, willfully and maliciously withhold the possession of said premises from plaintiff; that upon the entrance of said premises defendant made deep cuts therein, likewise high fills, and drove and erected large numbers of piles and builded expensive railroad bridges, tore down the fences and constructed a right of way for an electric railway across said land, and is now using the same for the purpose of operating its electric railway system and has used a large portion of the land for the purpose of storing a vast quantity of railway equipment to plaintiff’s damage in the sum of $10,000; that the loss incident to the rental value of said premises and the use and occupation thereof during the plaintiff’s deprivation has damaged him in the sum of $2,000; and, finally, that defendant occupied for its right of way a strip of land containing 2.07 acres. Judgment is demanded by plaintiff for the restoration of the whole of said land and for the damages heretofore mentioned.</p> <p>In due time defendant filed its answer, wherein it denied generally the matters set forth in plaintiff’s complaint, and alleged that in the month of May, 1908, it took possession of the strip of land containing 2.07 acres and constructed an electric railway line there-over in pursuance of a written agreement entered into by plaintiff and defendant, by the terms of which instrument plaintiff donated to defendant a perpetual right of way across said strip of land; that the conditions prescribed in said agreement were faithfully observed, and that the possession of said premises and the construction of said railway line thereover was with the knowledge and consent of plaintiff; that since the summer of 1908 defendant has operated passenger and freight trains across said land, and has since continued to operate its line of railway as a common carrier, in the transaction of state and interstate business; that, if ejected from said premises, it will be compelled to abandon its railway line and the business thereon, with a great detriment to the public interest, and it is therefore an absolute necessity that said line of railway remain continuously in operation and be maintained across the premises of plaintiff, and that the one chosen is the only route across said premises over which defendant can operate its line of railway. The issues were concluded by a reply containing a general denial of the affirmative defense asserted by defendant.</p> <p>Upon the trial of the case the jury rendered a verdict to the effect that plaintiff was entitled to the possession of the whole of the property described in plaintiff’s first pleading, and awarded damages to plaintiff in the sum of $3,000. Following the entry of the judgment, defendant effected this appeal, assigning numerous errors, the significant ones of which will be considered in the opinion.</p>

From Multnomah: Henry E. McGinn, Judge. This is a suit by Mary B. Gray and S. Roscoe Beard against A. Edgar Beard, to establish title in plaintiffs to an undivided two-fifths interest in certain real property in Multnomah County. The facts are fully set forth in the opinion. The Circuit Court found the equities were with the plaintiffs and entered a decree accordingly, from which the defendant appeals.

<p>From J acts on: Frank M. Calkins, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action by the State of Oregon, on the relation of Josiah Beeman, against R. C. Kelsey, John Palmer, Joseph Dietrich, W. R. Walker, Frank WRmarth, and George Landis to determine the right of each to act as an officer in the City of Gold Hill, a municipal corporation, which town was incorporated by an act of the legislature: Laws Or. 1895, p. 248. The charter was amended April 13, 1907, under an exercise of the initiative power reserved to the people of municipalities by the organic law: Const. Or., Art. IV, §§ 1, la. By this amendment the name of the municipality was changed to that of the City of Gold Hill and power was vested in a board of five councilmen to be elected annually on the first Monday in April and who were to hold office until their successors were regularly elected and duly qualified. It was the duty of the board to select a member thereof as president, who thereupon became ex-officio mayor.</p> <p>At a regular election held April 3, 1911, Josiah H. Beeman, L. R. Cardwell, Walter Dungey, Samuel Hodges, and Henry Miller were chosen councilmen, and, each having duly qualified, Beeman was elected president of the board. The members thereof on August 7. 1911, enacted ordinance No. 64 which by its terms went into immediate effect and prescribed the manner of exercising the initiative and referendum powers reserved to the people. The ordinance was patterned largely after the provisions of Chapter 226, Laws of Oregon 1907, and authorized the board to propose amendments to the charter by ordinance, resolution, or initiative petition. Section 6 of this enactment provided that, when any proposal to amend the charter was made, the recorder should cause to be printed official ballots, consecutively numbering the measures to be voted upon in the order of their filing, giving to the first expression of an affirmative choice the number “400” in numerals and to the negative “401.” Section 9 thereof declared that, not less than 10 days before any regular or special election at which any proposed charter amendment was to be submitted to the people, the recorder should cause to be printed in a newspaper of general circulation in Grold Hill “a full and correct copy of the title and text of such measures so submitted with the number and form in which the ballot title thereof would be printed on the official ballot, and the recorder shall also cause similar copies to be posted in three public places in said town for a period of not less than 10 days immediately prior to such election.”</p> <p>T.he board, desiring to amend the charter, appointed for that purpose a commission, and a proposed new charter, having been submitted, was approved by the board by resolution adopted October 10, 1911, but, a typographical error having occurred in printing the organic act, such resolution was revoked on the 24th of that month. Another resolution was adopted October 30, 1911, expressing a purpose to submit the proposed charter to the legal voters for adoption or rejection. A citizens’ committee having suggested certain changes in the proposed charter, which alterations were approved by the commission, the board on November 6,1911, adopted a further resolution directing the recorder to incorporate in the new organic act the modifications so recommended. The declaration further provided as follows: “Therefore be it resolved by the city council that a special election of the legal voters shall be and is hereby called to be held Monday November 20,' 1911, for the purpose of submitting a proposed new charter to the people of Gold Hill for their adoption or rejection, by first publishing the proposed new charter in two issues of the Gold Hill News'of the 11th and the 18th of November, 1911.” An emergency was declared to exist and that the resolution should be in full force and effect after its approval by the mayor, which officer immediately appended thereto his signature. The charter as changed was then ratified by the council, and the recorder was directed to give notice as indicated, which command was obeyed. A ballot title was also prepared, to which the numeral “10” was fixed to indicate an affirmative vote and “11” a negative. The proposed charter was also published in the Gold Hill “News” in its issues of November 11 and 18,1911, but no copies were posted as required by ordinance No. 64. The special election was held at the time and place designated, when were cast 86 votes for the measure and 15 against it. The returns of the election were canvassed and the mayor on November 27, 1911, issued a proclamation declaring the new charter to be in force. Pursuant to its provisions an election was held in the city the first Monday in April, 1912, when were declared to be elected as councilmen all the defendants hereinbefore named except Kelsey, who was thereafter selected president of the board and ex-officio mayor, and each having taken an oath of office entered upon the discharge of the duties thereof.</p> <p>The plaintiffs on September 18, 1912, asserting that in consequence of the failure to give the required notice the proposed new charter had not been legally enacted and that he and' his associates, who were elected April 3, 1911, and constituted the hoard of councilmen, instituted this action. The case, being at issue, was tried, and from a stipulation of the evidence by the parties the court made findings of fact in conformity therewith and in substance as hereinbefore set forth. Based on the conclusions of law deducible from the findings of fact, a judgment of ouster was rendered against each of the defendants and they appeal.</p>

<p>From Multnomah.: Robert G. Morrow, Judge.</p> <p>Department 1. Statement by Mr. Justice Moore.</p> <p>This is a special proceeding by A. M. Haradon against John B. Coffey, as county clerk of Multnomah County,- Oregon, to compel the performance of an act which it is asserted the law specially enjoins as a duty resulting from an office. The complaint charges in effect that on January 5, 1913, the defendant, John B. Coffey, became, ever since has been, and now is the duly elected, legally qualified and acting county clerk of Multnomah. County; that as such officer he has custody of all papers in actions, suits and proceedings instituted in the Circuit Court of the State of Oregon for that county, and it is his duty to receive and file all papers in such causes that are properly indorsed and tendered to him for that purpose, fpr which the prescribed fees have been paid.; that on July 30, 1912, A. M. Haradon, the plaintiff herein, commenced in such court an action against the Queen Insurance Company of America, a corporation, and then deposited with the county clerk of such county, as required by law, the sum of $11 to defray the expenses of filing papers, etc., in such cause; that plaintiff has complied with all the requirements of law respecting the filing of papers in that action, and there remains under the control of the defendant $8.10 that has not been ap-' plied in payment of filing fees in such case; that on April 8, 1913, plaintiff tendered a duly issued and properly indorsed order of the court, relating to such action, to the defendant whose duty it was to file the same, but without any reason therefor he refused to accept or file the written direction; that at the time of such tender there was in his possession more than sufficient funds to pay all filing fees; and that plaintiff has no plain, speedy or adequate remedy in the ordinary course of law. The prayer is that a writ of mandamus may be issued commanding the filing of such paper.</p> <p>An alternative writ having been issued, the return thereto states, in substance, that on January 5, 1913, when the defendant entered upon the discharge of the duties of his office, the books thereof showed that his immediate predecessor therein had received from parties litigant $54,410.98, but that of that sum there was delivered only $38,888.56 to the defendant, who immediately deposited the same in a bank in Portland to his credit to be held for the benefit of persons entitled thereto; that such predecessor asserts that of the money so received by Mm, on account of fees, he deposited $15,522.43 in a bank which became insolvent, and that sum cannot be collected except by due course of settlement; that since the failure of that bank such predecessor had made to some of the parties litigant payments of the amount thereof or the persons receiving the same are unknown to the defendant, who for that reason, and until the ownership of the money so received by him is established, has declined to file any paper in causes pending prior to assuming his official duties, unless the fees are paid at the time; and that, by the provisions of the statute regulating the matter, the defendant is compelled to pay to the treasurer of Multnomah County on the fourth of each month the sum of ten cents for each paper filed during the preceding month, and by reason of such reqMrement it is impossible for him to comply therewith in respect to fees in pending actions, suits, or proceedings instituted prior to January 5, 1913, without collecting such fees when the paper is filed, unless he becomes personally liable for the failure of his predecessor to pay over all money that he received on account of fees.</p> <p>A demurrer to the return, based on the ground that it did not state facts sufficient to constitute a defense, having been overruled, and the plaintiff declining further to plead, the writ was quashed and the proceeding dismissed, frota which judgment he appeals.</p>

From Multnomah.: Henry E. McGinn, Judge. In Bank. Statement by Mr. Chief Justice McBride. This is a suit brought by the City of Portland to restrain Inman-Poulsen Lumber Company, a corporation, R. D. Inman and Johan Poulsen from obstructing certain streets situated in what was formerly known as Stephens’ Addition to the City of East Portland, which, by the consolidation of the two cities, has become a part of the present City of Portland.

<p>From Multnomah: Calvin TJ. Gantenbein, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by H. M. Geren against Edgar Hollenbeck. The substance of the complaint is that about June 10, 1910, plaintiff was the owner and entitled to the possession of an automobile of the value of $3,000, which the defendant at that time converted to his own use, to the damage of the plaintiff in that amount.</p> <p>The defendant answered, denying all the allegations of the complaint. Although disputed, there was some testimony tending to prove the allegations of the complaint. The testimony on the plaintiff’s behalf tended to show that, without her consent or knowledge, the defendant, who had custody thereof only as keeper for plaintiff, had intrusted the possession of the car to a man who, while driving it at a reckless rate of speed, ran it off a trestle between Portland and Vancouver into a slough, which utterly wrecked the car. On the cross-examination of the plaintiff over the objection of her counsel that the same was not proper cross-examination, irrelevant and immaterial, it was elicited from her that there was a chattel mortgage on the car, which had been foreclosed subsequent to the alleged conversion. Under these circumstances' the Circuit Court directed a verdict for the defendant, and from the ensuing judgment thereon the plaintiff appeals.</p>

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

<p>From Multnomah.: Henry E. McGinn, Judge.</p> <p>Statement hy Mr. Chief Justice McBride.</p> <p>This is an action hy Alice Acldes against the Pacific Bridge Company, a corporation, to recover damages for personal injuries. The defendant contracted with the City of Portland for the pavement and improvement of a portion of Alberta Street in said city. In said contract appeared the following provision: “ * * Said work to be performed and completed in strict accordance with the provisions and requirements of the charter of said city, ordinances No. 14,253, as amended, and No. 21,715, and the plans and the specifications of the city engineer, on file in the office of the auditor of the said city, which charter provisions, ordinances, plans, and specifications, are hereby referred to and made a part of this contract. * * ” The ordinance referred to reads as follows: “The contractor shall observe all the ordinances of the City of Portland,” etc. “He shall erect and keep erected, by day and night, a fence or proper harrier along the line of the work and across the ends of the same, in order to guard the public effectively from the danger of falling into trenches, or from upsetting their vehicles against earth thrown up during the progress of the work, and he shall post all proper notices and signals to the public of the state of the street while the work is in progress.” The contract also contained the following agreement on the part of the Pacific Bridge Company: “Said work shall be performed under the personal supervision of the said contractor, and no part of this contract, nor any interest therein, shall be sublet, assigned, or transferred without the written consent of said city, by its executive board, and no such written consent shall release the contractor from any obligation, either to the said city or the persons employed by any such subcontractor, and all subcontractors shall be construed merely as employees of the said contractor. * * ”</p> <p>The defendant contracted with Jeffery & Buff ton to do the work; and such contract seems to have been sufficient in form to have made them independent contractors, unless the agreement with the city precludes such a result. An unguarded hole was left in the street as the work progressed, into which plaintiff fell and sustained injury. The court instructed the jury that the defense offered by defendant, namely, that, if Jeffery & Buff ton were independent contractors, they alone were responsible, could not be maintained in this case, and this instruction is assigned as error. The plaintiff had a verdict, and defendant appeals.</p> <p>For respondent there was a brief over the names of Messrs. Moser & McCue and Mr.-W. A. Williams, with an oral argument by Mr. Williams.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is an action by Bingham & McClelland Company, a corporation, against the National Brick .& Cla.y Company, a corporation, and Charles H. Page, as receiver of said defendant the National Brick & Clay Company, and the Pacific Surety Company, a corporation; the facts being as follows: The defendant the National Brick & Clay Company, on the 21st day of February, 1911, entered into a contract in writing with plaintiff to manufacture and sell, and the plaintiff to purchase, 500,000 bricks, of the size, color, and composition of those submitted, at the price of $6.50 per thousand, to be delivered at the times and places named by plaintiff, and providing that, as plaintiff is to pay tor the bricks in advance, the seller shall furnish a surety company bond in the sum of $3,250, the sum so to be advanced, as a guaranty of faithful delivery of the bricks. On the same date, in compliance with the terms of .said contract,'the defendant the Pacific Surety Company executed in favor of the plaintiff its bond for the faithful performance of said contract by the National Brick & Clay Company, which contract is referred to in the bond, or, in default thereof, to pay to it the sum of $3,250. It is conditioned in the bond that the surety company shall be notified by the purchaser of any breach of the contract by the principal immediately after the occurrence of such act shall have come to its knowledge and further provides that any suit or action brought thereunder must be instituted within six months after the first breach of the contract. On the 4th of March, 1911, another contract for the manufacture and sale of bricks was entered into between the plaintiff and the defendant the National Brick & Clay Company, namely, for the delivery of 700,000 bricks on the same terms and conditions as in the one above described; and the defendant the Pacific Surety Company on that date executed a bond in the sum of $4,200 in favor of plaintiff, upon like terms and conditions as the one of date February 21st, for the fulfillment by the National Brick & Clay Company of the contract above mentioned. On September 15, 1911, the plaintiff brought this action upon these two-contracts and bonds, alleging the default of defendant the National Brick & Clay Company to deliver said brick, or any part thereof, except that they admit they received 12,655 bricks thereon, and setting out the contracts and bonds in full as part of the complaint, and ask for judgment on the former in the sum of $3,177.75, and on the latter in the sum of $4,200. But one issue is tendered on this appeal, namely, that plaintiff failed to bring suit or action against the Pacific Surety Company to recover on the bond within six months after the first breach of the contract. The Pacific Surety Company alone defends herein. The cause was tried without the intervention of a jury, and the court made findings in favor of the plaintiff, with the exception that it found there were 42,575 bricks delivered, and rendered judgment against defendant surety company for $7,173.25. The defendants appeal. Submitted on briefs without argument under the proviso of Bule 18 of the Supreme Court, 56 Or. 622 (117 Pac. xi).</p>

From Jackson: Frank M. Calkins, Judge. Statement by Mr. Justice McNary. The defendant, Mike Spanos, was sentenced to receive the death penalty. On December 2,1912, defendant and one Frank Seymour were jointly indicted by the grand jury of Jackson County for the murder of Geo. Dedasklou. Separate trials were demanded, and defendant’s conviction followed on December 14, 1912.

<p>From Jackson: Frank M. Calkins, Judge.</p> <p>The defendant, Frank Seymour, was convicted of murder in the first degree and he appeals.</p>

From Marion: William Galloway, Judge. In Bank. Statement by Me. Justice Burnett. This is a suit by A. G. Libby against Ben W. Olcott, Secretary of State of tbe State of Oregon, tbe facts being as follows: By tbe act of February 28,1913 (Laws 1913, p. 620), tbe legislative assembly passed a law providing that “there shall be held a special election in tbe several voting precincts of this state on tbe first Tuesday after the first Monday in November, 1913.

<p>Pleading — Amendment During Trial — Complaint.</p> <p>1. Under Section 102, L. O. L., providing that the court may permit, at any time before the cause is submitted, an amendment which does not substantially change the cause of action, the court had jurisdiction to permit an amendment to the complaint in an aetion for personal injuries by adding two paragraphs that did not substantially change the cause of aetion.</p> <p>Appeal and Error — Waiver of Objections — Failure to Argue.</p> <p>2. Where an assignment of error to the refusal of the court to give requested charges was not diseussed in the argument, it will be presumed that the appellant intended to waive consideration of it.</p> <p>Trial — Instructions — Requested Instructions Covered by Court’s Charge.</p> <p>3. It is not error to refuse to give requested instructions, the substance of which has been incorporated in the instructions given by the court.</p> <p>Trial — Nonsuit—Determination of Motion.</p> <p>4. The defendant’s motion for a nonsuit should be allowed if all the evidence at the close of the plaintiff’s case in chief was not sufficient for submission to the jury.</p> <p>Trial — Directed Verdict — Determination of Motion.</p> <p>5. A defendant’s motion for a directed verdict should be allowed, if, after all the evidence in the ease is in, it is not sufficient for submission to the jury.</p> <p>Appeal and Error — Verdict of Jury — Conclusiveness—Constitutional and Statutory Provisions.</p> <p>6. Under Article VII, Section 3, of the Constitution, as amended (see Laws 1911, p. 7), providing that no fact tried by a jury shall be re-examined by any court, unless the court can say affirmatively that there is no evidence to support the verdict, and Section 183, L. O. L., providing that a cause not sufficient to be submitted to a jury is one where it appears that, if the jury were to find for the plaintiff, the court ought to have set the verdict aside for want of evidence to support it, the verdict protected by these sections is one rendered in a court having jurisdiction of the subject matter and of the parties in a trial where the court committed no reversible error.</p> <p>Trial — Motion for Nonsuit and Directed Verdict — Determination.</p> <p>7. Under those sections a motion for nonsuit or directed verdict should be sustained only when the court can say affirmatively that there is no legal evidence to support the verdict for the plaintiff.</p> <p>Master and Servant — Injuries to Servant — Evidence—Negligence of Master — Contributory Negligence.</p> <p>8. In an action by a railroad employee for injuries received while removing a safe from one car to another, evidence as to the master’s negligence in failing to furnish proper appliances, and whether the employee was aware of the nature of the object he was moving and the danger of handling it with the appliances furnished, held sufficient to carry the case to the jury.</p> <p>[As to the liability of an employer to an employee who accepts extrahazardous duties, see note in 97'Am. St. Rep. 884.]</p> <p>Trial — Motion for Nonsuit and Directed Verdict — Determination— Conflicting Evidence.</p> <p>9. A judgment of nonsuit or motion for an instructed verdict should not be granted, where reasonable minds may draw different conclusions from the evidence, especially where it is conflicting on material points.</p> <p>Appeal and Error — Review—Motion for Nonsuit — Evidence Considered.</p> <p>10. In determining whether a nonsuit should have been granted, the Supreme Court must review the evidence produced by the plaintiff in the light most favorable to him.</p>

<p>Appeal and Error — Evidence Admitted to Make Record — Effect.</p> <p>1. Iu a cause tried without a jury, where the trial judge, after hearing part of the evidence, announced that he would not hear or consider other evidence but allowed the testimony to be taken to make a record for the Supreme Court, the testimony admitted for such purpose should be treated as though it had been offered and rejected.</p> <p>Appeal and Error — Review—Disregarding Findings.</p> <p>2. Where the bill of exceptions shows that findings for the plaintiff were made upon a part only of the evidence, and that evidence offered by defendant was rejected, the reviewing court, if of the opinion that such offered evidence was admissible, was at liberty to disregard the findings.</p> <p>Trial — Reception of Evidence — Documents—Notes—Indorsement.</p> <p>3. Indorsements are no part of a note, and the introduction of a note in evidence does not carry with it the indorsements.</p> <p>Bills and Notes — Transfer Without Indorsement — Rights of Transferee.</p> <p>4. When a note is payable to order, the indorsement of the payee is necessary to transfer the legal title, and the transferee without indorsement takes it as a mere chose in action, subject to all equities that attached to it in the hands of the transferrer, and must aver and prove the consideration.</p> <p>Bills and Notes — Action—Sufficiency of Evidence — Ownership.</p> <p>5. Where there is no proof of the genuineness of the indorsement of a note payable to “order,” proof of the mere possession of the note is not sufficient to support a claim of ownership.</p> <p>Trial — Trial by Court — Objection to Evidence — Findings.</p> <p>6. Where the trial judge, after hearing part of the evidence, stated that he would not hear or consider other evidence, and found for plaintiff, but permitted the taking of offered evidence to make a record, such offered evidence was as much excluded as though it had never been received, and defendant was not required to present findings to the court embodying its view of the evidence and to have them passed upon.</p> <p>Sales — Action for Price — Sufficiency of Evidence — Conditions of Payment.</p> <p>7. Evidence in -an action upon a note given by defendant for the price of a shipment of cigars, made in pursuance of a contract giving defendant the right to return them if not satisfactory, held to show that the agreement for return was not waived by the giving of the note, but that the matter of return was to be held in abeyance at the request of plaintiff’s agent, subject to further efforts on the part of defendant to dispose of them.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by F. F. Williams against the Pacific Surety Company, a corporation, the Oregon-Idaho Company, a corporation, and A. H. Ford, the facts being as follows:</p> <p>In August, 1910, the defendant Oregon-Idaho Company, a corporation, entered into a written contract with A. H. Ford and F. F. Williams, the plaintiff in this action, whereby they agreed to furnish said Ford and the plaintiff 200,000,000 feet of saw-logs at the agreed price of $7 per thousand feet, the time and manner of said delivery being set forth in the contract. To secure the performance of the contract,, the Oregon-Idaho Company gave a bond to Ford and Williams in the sum of $25,000, conditioned for its faithful performance, upon which bond the defendant Pacific Surety Company became surety. The Oregon-Idaho Company defaulted and was adjudged bankrupt, and Williams brought this action on the bond, alleging that Ford refused to join with him as a plaintiff, and for that reason he was made a defendant. There was a prayer in the complaint for judgment against the defendant Pacific Surety Company and in favor of plaintiff and defendant Ford for the amount of the bond.</p> <p>All the defendants except the Pacific Surety Company made default. That company demurred on the ground (1) that there was a defect of parties plaintiff, in that Ford was not joined as a plaintiff; and (2) that the complaint did not state facts sufficient to constitute a cause of action. This demurrer being overruled, they elected to stand thereon, and thereafter a judgment was taken against them for want of answer, from which judgment they appeal to this court.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Henry J. Bean.</p> <p>This is an action by Kate Strode, Bose Bridges, Anna Herrall, Y. K. Strode and J. B. Bridges, Jr., against Frank E. Smith and the Pacific Surety Company.</p> <p>The defendants appeal from a judgment in favor of plaintiffs for $6,000, damages for the breach of a bond.</p> <p>The complaint, for the first cause of action, shows the following facts: On the 28th day of May, 1910, the plaintiffs executed a lease to defendant Frank E. Smith of a certain lot in the city of Portland, Oregon, for the term of 35 years. The lease contained 25 separate stipulations set forth at length in the complaint. The general provisions were: That the lessee should pay a monthly rental of $1,500 in advance, beginning on the 1st day of October, 1910, also all taxes, charges and assessments imposed on the property, including water rents, and the general taxes for the year 1910, which were to be paid on or prior to the 15th day of March, 1911; that the lessee should erect a building upon the premises, of the kind specified in the lease, to be of the value of $100,000; that the erection of such building should be commenced in good faith within one year from the execution of the lease; and that the lessee should keep the same insured for two thirds of its value. The twelfth stipulation read as follows: “That the said lessee covenants and agrees that within sixty (60) days from the execution of this lease he will execute and deliver to the lessors a bond with a good, safe and reliable surety company as surety for the sum of six thousand ($6,000) dollars, to insure the lessee carrying out this lease, which bond shall be made to the lessors and in form and conditioned as they may desire, and which must be satisfactory to them, and continue in force as to such surety for not less than one year. * * The lessee further covenants and agrees that not later than sixty-five (65) days before the commencement of the removal of the building which now stands upon the said leased real property, he, the said lessee, will execute and deliver to the lessors a bond with a good, safe and reliable surety company as surety for the sum of fifty thousand ($50,000.00) dollars, covering at least one year and conditioned that said lessee will construct and pay for a building on said leased premises as hereinbefore provided, which bond shall be made to the lessors and in form and conditioned as they may desire and to be satisfactory to them. In the event that the liability of such surety on such last-named bond should not continue until the full completion of said building as herein provided, then said lessee shall renew said bond for like time, in the same form and with same or like surety satisfactory to the lessors.” Pursuant to the terms of the lease, duplicates thereof were placed with the bank in escrow, to be delivered when Frank E. Smith should execute to the plaintiffs the bond with surety, as provided for.</p> <p>On August 13, 1910, according to the agreement, defendant Prank E. Smith executed and delivered to plaintiffs the following bond:</p> <p>“Pacific Surety Company of California.</p> <p>“Whereas, on May 28th, 1910, a written lease was executed by Kate Strode and Bose Bridges and Anna Herrall and V. K. Strode and J. B. Bridges, Jr., as lessors, and Prank E. Smith, as lessee, in and by which said lessors leased to said lessee lot five (5) in block nineteen (19) of the city of Portland, in the county of Multnomah, and state of Oregon, for the term of thirty-five (35) years from and -after October 1, 1910, at the rental and on the terms and conditions therein stated, a copy of which lease is hereto attached and hereby made a part hereof; and</p> <p>“Whereas, it was and is provided in and by said lease that said lessee will, within 60 days from the date of its execution, execute and deliver to said lessors a bond with a good and safe and reliable surety company as surety for the sum of six thousand ($6,000) dollars, to insure said lessee carrying out said lease, and that said bond shall be in form and conditioned as said lessors may desire and must be satisfactory to them; and</p> <p>“Whereas, it is further provided in and by said lease that said lessee shall, at his own sole cost and expense, erect and place upon said leased property a building of the kind and in the time and manner stipulated therein, and that the erection of said building shall be commenced within one year from the date of the execution of said lease; and</p> <p>“Whereas, it is further provided in and by said lease that said-lessee shall, not later than sixty-five (65) days before the commencement of the removal of the building now standing upon said leased property, which will necessarily be not less than sixty-five (65) days before the commencement of the erection of said new building to be erected and placed by said lessee upon said leased property, execute and deliver to said lessors a bond, with a good and safe and reliable surety company as surety for the sum of fifty thousand ($50,000) dollars, in form and conditioned as provided for in said lease and particularly conditioned that said lessee will construct and pay for said new building on said leased property as in said lease provided; and</p> <p>“Whereas, it is further provided in said lease that said lessee shall, in addition to other payments therein provided for, pay the general taxes on said leased property for the year 1910 and pay the same prior to March 15th, 1911; and * *</p> <p>“Whereas, conditions in the city of Portland at the time of and ever since the execution of said lease were and still are most favorable for the owners of real property in the same general neighborhood and of the same general character as said leased property securing and making advantageous and profitable leases of their real property, and by reason of said execution of said lease and the giving of this bond said lessors have and do tie up said leased property in such manner and for such time as to lose many favorable opportunities of making advantageous and profitable leases thereof to other parties, than said lessee, and said lessors were induced and persuaded to so execute said lease and so place the same in escrow because and by reason of said provision therein for the execution and delivery to them by said lessee of said fifty thousand ($50,000) dollar bond to secure the erection of said new building on said leased property and said provision therein for the payment by said lessee of said 1910 taxes on said leased property; and</p> <p>“Whereas, because of the facts recited in the last preceding paragraph hereof and the fact that it might be claimed by said lessee that it could not be determined until at or near the expiration of said thirty-five year term of said lease to what extent said lessors would be damaged by the failure of said lessee to execute and deliver said fifty thousand ($50,000) dollar bond and erect said new building as provided in said lease, and for many other reasons, the damages which would be sustained by said lessors if said lessee should fail to execute and deliver said fifty thousand ($50,000) dollar bond as provided for in said lease would be uncertain and incapable of reasonable estimation or definite calculation, and the damages which would be sustained by said lessors if said lessees should fail to pay said 1910 taxes as provided in said lease would likewise be uncertain and incapable of reasonable estimation or definite calculation; and</p> <p>“Whereas, it has been and is hereby agreed by and between said lessors and said lessee and the surety hereinafter named that said lessors would he damaged to the extent of not less than four thousand ($4,000) dollars if said lessee should fail to so execute and deliver said fifty thousand ($50,000) dollar bond, and said lessors and said lessee and said surety have agreed and do hereby agree upon four thousand ($4,000) dollars as and for fixed and stipulated and liquidated damages to said lessors arising from a failure of said lessee to so execute and deliver said fifty thousand ($50,000) dollar bond; and</p> <p>“Whereas, said lessors and said lessee and said surety have agreed and do hereby agree that said lessors will be further damaged to the extent of not less than the amount of said taxes if said lessee fails to pay said 1910 taxes as provided in said lease and have agreed and do hereby agree upon the amount of said taxes as and for fixed and stipulated and liquidated damages to said lessors arising from a failure of said lessee to so pay said 1910 taxes as provided in said lease:</p> <p>“Now, therefore, we, Frank E. Smith, said lessee, as principal, and the Pacific Surety Company, a corporation, organized and existing under and by virtue of the laws of the state of California, and authorized and empowered under the laws of the state of Oregon, to become surety on bonds, undertakings, etc., as surety, do hereby jointly and severally covenant and agree with said lessors as follows:</p> <p>“First. That if said lessee fails to pay said 1910 taxes of said leased property as provided in said lease, we, and each of us, will, on demand, pay to said lessors the amount of said taxes as and for fixed and stipulated and liquidated damages sustained by said lessors by reason of said lessee’s failure; but in no event shall said surety be required to pay said lessors more than two thousand ($2,000) dollars under and by reason of this paragraph of this bond.</p> <p>“Second. That if said lessee fails to procure the execution and delivery to said lessors of said fifty thousand ($50,000) dollar bond as provided in said lease, we, and each of us, will, on demand, pay to said lessors the snm of four thousand ($4,000) dollars as fixed and stipulated and liquidated damaged sustained by said lessors by reason and on account of such failure.</p> <p>“Third. If said lessors should prior to the expiration of the time required by said lease for the execution and delivery of said fifty thousand ($50,000) dollar bond forfeit or terminate said lease or evict said lessee from or re-enter or retake possession of said leased property because or by reason or on account of any breach of or default in the performance of any of said lessee’s covenants or agreements contained in said lease other than said covenant to pay 1910 taxes and said covenant to furnish said fifty thousand ($50,000) dollar bond, said forfeiture or termination or eviction or re-entry or retaking of possession shall not release or in any way lessen the liability of said lessee or said surety under this bond or be any defense to any suit or action on this bond; and, notwithstanding any such forfeiture or termination or eviction or re-entry or retaking of possession said lessee and said surety shall be liable hereunder as hereinbefore provided in the sum of not more than 2 thousand ($2,000) dollars for failure to pay said 1910 taxes and in the sum of four thousand ($4,000) dollars for failure to furnish said fifty thousand ($50,000) dollar bond.</p> <p>“And it is further covenanted and agreed that no granting by said lessors of any waiver of or any extension of time for the performance of any act or payment of any sum required to be performed or paid by said lessee in or by said lease shall be taken or deemed to be a release or discharge of said surety from this bond, and that no failure of said lessors to notify said surety of any breach of said lease by said lessee shall work a release or discharge of said surety from this bond.</p> <p>“Now, if said Frank E. Smith, as principal, shall faithfully perform the conditions of the above agreenient, then this obligation shall be null and void, otherwise to remain in full force and effect.</p> <p>“In witness whereof, the said principal has hereunto set his hand and seal, and the said Pacific Surety Company has_ caused these presents to be signed by its attorney in fact and its resident assistant secretary, regularly empowered thereunto, and its corporate seal to be attached hereto, this 13th day of August, A. D. 1910. & ’</p> <p>“[Signed] Prank E. Smith. [Seal.]</p> <p>“Pacific Surety Company,</p> <p>a i ‘By L. R. Centro,</p> <p>«1 ‘Res. Asst. Secy, and Atty. in Pact. “Signed, sealed, and delivered in presence of:</p> <p>“Attest: Ernest W. Hardy,</p> <p>“Atty. in Pact.</p> <p>“H. P. Anthony,</p> <p>“Res. Asst. Secy.</p> <p>“[Corporate Seal].”</p> <p>One of the duplicates was delivered to defendant Prank E. Smith pursuant to the terms of the lease. On the 1st day of October he entered into possession of the premises and retained the same until after the 15th day of March, 1911. There was duly assessed on the real property described in the lease the sum of $3,220.80 for general taxes for the year 1910, which became due and payable in February, and until and after the 15th day of March, 1911. Defendant Prank E. Smith failed and neglected to pay such taxes on or prior to the 15th day of March, 1911, or at any time, or any part thereof, on account of which plaintiffs were compelled to and did subsequent to the 15th day of March, 1911, pay the same. Plaintiffs demanded of each of the defendants the payment of $2,000 as stipulated and liquidated damages upon the failure to pay the taxes, and the same is now due to the plaintiffs for a breach of the covenant for the payment of the taxes provided for in the bond and writing obligatory.</p> <p>For a second and further cause of action, after setting out the lease and bond, plaintiffs allege that the same were executed and delivered; that the defendant Frank E. Smith failed and neglected to make, execute or deliver to the plaintiffs 65 days before the time for the commencement of the removal of the building standing on the leased premises at the time of the making of the lease, or 65 days before the time for the commencement of the new building provided for in the lease, to be erected by him thereon, or at any time, or at all, the bond for $50,000 provided for in paragraph 12 of the lease; that defendant Frank E. Smith did not construct or commence the construction of the building within one year from the date of the lease as provided for therein, or at any time, or at all; that subsequent to the breach of the covenant on the part of defendant Smith to give the $50,000 bond above referred to the plaintiffs duly demanded that the defendants, and each of them, pay the $4,000 stipulated and liquidated damages provided for in the bond for the failure to execute and deliver the $50,000 bond as aforesaid; that the defendants have failed ever since to pay the same, or any part thereof.</p> <p>Defendants Frank E. Smith and the Pacific Surety Company filed a demurrer to each cause of action, for the reason that the same did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrers. The defendants, refusing to plead further, stood upon their demurrers, and the court entered judgment for $6,000 as prayed for in the complaint.</p>

<p>From Umatilla: Gilbert "W. Phelfs, Judge.</p> <p>Statement by Mr. Chief Justice McBride.</p> <p>This is a suit by James Johns against the City of Pendleton to quiet title.</p> <p>It originated in a dispute as to the validity of an assessment made and a lien claimed by tbe defendant against two lots owned by plaintiff in order to pay for work done by tbe Warren Construction Company in paving a portion of Jackson Street with wbat is called ‘ ‘ Gravel Bitulitbic ’ ’ pavement. Tbe pavement is composed of a patented compound, manufactured by tbe use of special macbinery, parts of wbicb are also patented, and tbe use of tbe name “Gravel Bitulitbic” is protected by copyright; tbe patents and right to use tbe name being the property of tbe Warren Bros. Company, a corporation distinct from tbe Warren Construction Company. Tbe Warren Bros. Company, tbe owners of tbe patent, had placed on file in tbe office of tbe recorder in tbe City of Pendleton tbe following offer, called a “license agreement,” wbicb is as follows:</p> <p>“To tbe Honorable Mayor and City Council, “Pendleton, Oregon.</p> <p>“Gentlemen: Inasmuch as it is deemed advisable by tbe proper authorities that bids be received for tbe improvement of certain streets in tbe city of Pendleton, state of Oregon, with tbe Gravel Bitulithic pavement; and inasmuch as-the construction of said pavement requires tbe use of certain patented processes and compounds; and inasmuch as competitive bidding in tbe letting of contracts for street improvements is deemed advisable, in order to provide for such competitive bidding, and at the same time secure tbe adoption of tbe Gravel Bitulitbic pavement as tbe kind of pavement to be constructed in such streets as may hereafter be determined; tbe undersigned, Warren Brothers Company, as owner of all patents and processes covering the laying of said Bitulitbic pavement, hereby proposes and agrees, for tbe consideration hereinafter named, to furnish the city of Pendleton or to any bidder, to whom a contract may be awarded to pave any street or streets in the city of Pendleton with the Gravel Bitnlithic pavement, at any time within one year from this date, or at any time thereafter until this proposition is formally, withdrawn, and who shall enter into a contract with such surety or sureties as may be required by said city, of Pendleton, the following materials ready for use, coupled with a free license to use any or all the patents, trade-marks or trade-names now owned or which may hereafter be owned by Warren Brothers Company, necessary to lay said pavement: 1. The necessary roadway mixture for the wearing surface having a thickness of 1% inches (1%") after compression, prepared under the patented process of Warren Brothers Company, and delivered hot in the wagons of the city or contractor at the Bitulithic mixing plant located in the city of Pendleton; said plant to be located within three (3) miles of the work to be performed. 2. The right to use any and all patents, trademarks, or trade-names now owned or which may hereafter be owned or controlled by Warren Brothers Company, which are necessary to be used in the laying of such pavement. 3. The bituminous flush coating cement necessary for coating the wearing surface, delivered on wagons of the city or contractor at the Bitulithic mixing plant located as above. 4. An expert, who will give proper advice as to the building of such pavement, will be furnished to the city or contractor at the expense of Warren Brothers Company. 5. Two daily examinations of the mixture as delivered on the street will be made at the laboratory of Warren Brothers Company, to determine if uniformity has been accomplished in the mixture and construction, and reports thereof will be made to the proper city authorities; said samples to be sent, prepaid to the laboratory of Warren Brothers Company, Potter street, East Cambridge, Mass., by the city or contractor. The price at which this service is offered to any and all contractors who make a bid on the Gravel Bitulithic pavement, in the city of Pendleton, state of Oregon, is ninety cents ($0.90) per square yard of finished pavement, at which price it is also agreed to furnish the mixture for making all repairs, if any, which may he necessary for the wearing surface during the life of said patents f. o. b. Pendleton in barrels for reheating. The acceptance of bids by your city and the letting of a contract for the same is all that shall be necessary to bind Warren Brothers Company to this agreement.</p> <p>“Respectfully submitted,</p> <p>“Warren Brothers Company,</p> <p>“Walter B. Warren,</p> <p>‘ ‘ Vice-President.</p> <p>“The above agreement made on the understanding that it applies only to contracts, work on which can be performed continuously, aggregating not less than 10,000 square yards.”</p> <p>It also appeared that it was the custom of the com.pany to allow contractors to put in their own plants or for the company to furnish such plants to contractors who were allowed to manufacture the compound for themselves, paying a royalty of 25 cents per square yard to the Warren Bros. Company. In order to prevent duplication of such plants in small cities, such contractors were obligated to furnish other contractors in the same town not having such machinery the compound at the rate prescribed in the license agreement. The charter of the City of Pendleton contains the following provisions:</p> <p>“The council, whenever it may deem it expedient, is hereby authorized and empowered to order the whole or any part of the streets of the city to be improved, to determine the character, kind and extent of such improvement, to levy and collect an assessment upon all lots and parcels of land specially benefited by such improvement, to defray the whole or any portion of the cost and expense thereof, and to determine what lands are specially benefited by such improvement and the amount to which each parcel or tract of land is benefited. * * Within ten days from the date of the first publication of the notice required to be published in the preceding section, the owners of 80 per cent or more in area of the property within such assessment district may make and file with the city recorder a written objection or remonstrance against such proposed improvement, and such objections or remonstrance shall be a bar to any further proceedings in the matter of such improvement for a period of six months, unless the owners of one half or more of the property affected as aforesaid shall subsequently petition therefor. * * When the improvement of any street is ordered the recorder, upon instruction from the common council, shall immediately invite proposals for making the same, in accordance with ordinance provided, which proposals shall he opened in the presence of a majority of the common council and the contract awarded to the lowest responsible bidder for either the whole of said improvement or such part thereof as will not materially conflict with the completion of the remainder thereof. * * ”</p> <p>The Jackson Street improvement required 7,848.80 square yards of paving material. The plaintiff and others remonstrated against the proposed improvement, but did not specify the selection of a patented article as one of the reasons for their remonstrance. Other facts appear in the opinion. 'There was a decree for defendant, and plaintiff appeals.</p>

Prom Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Eakin. This is an action by Chas. G. Benson, against C. C. Murtón to recover damages for false representations; the circumstances being as follows: McNair & Moss-man, a real estate firm of Portland, had negotiated with W. W. Pawk for the purchase of a farm of 322 acres, in Polk County, for and on behalf of J. Syd McNair, C. C. Page, Chas.

<p>Constitutional Law — Obligation of Contracts — Impairment.</p> <p>1. Sections 6167-6217, L. O. L., provide for the government and organization of irrigation districts, including the assessment and collection of taxes sufficient to discharge the obligations of the district, and made payable on November 1st of each year, and made delinquent on the last Monday in December. Under this law bonds were issued by the irrigation district with interest coupons payable, as required by Section 6182, January 1st and July 1st. Laws 1913,' page 382, amends several sections of Chapter 7, among others Section 6192, and provides that, after the board has completed the equalization of the assessment, it shall certify a copy thereof to the county elerk, who shall enter the same upon the assessment-roll of the county, and that it shall be collected in the same manner as other taxes, the result of which would be that funds would not be available for January interest on the bonds until April, and for the July interest until November. Held, that since the amendment of 1913 would impair the irrigation company’s contract with the bondholders, it cannot apply to the bonds and other obligations existing at the time of its enactment; and hence a peremptory writ of mandamm will issue to compel the officers of the irrigation district to make the levy and assessment according to the method prescribed prior to the amendment of 1913.</p> <p>Statutes — Effect of Partial Invalidity.</p> <p>2. As Laws of 1913, page 382, so amends Chapter 7, L. O. L. (Sections 6167-6217) as to change the whole method of the assessment and collection of taxes for irrigation districts, and as the efficacy of each section depends, more or less, upon the others, no part of the Laws of 1913 can be given effect without the whole.</p>

<p>Statutes — Initiative—Authority to Submit.</p> <p>1. Article IV, Section 1, of the Constitution, after reserving to the people the right of the initiative, provides, among other things, that petitions therefor shall be filed with the Secretary of State, and, in submitting the same to the people, he and all other officers shall be guided by the general laws until legislation shall be specially provided therefor. Act of February 28, 1913 (Laws 1913, p. 620), provides for a special election on the first Tuesday after the first Monday in November, at which time measures passed by the twenty-seventh legislative assembly upon which the referendum may be invoked shall be submitted to the people. Held, that as the special act of February 28, 1913, contained no allusion to initiative measures, it does not apply to the initiative, and the Secretary of State is not authorized to submit an initiative measure in the election provided for by that act, but was governed by the general laws, as provided by the Constitution.</p> <p>Elections — Holding Elections — Authority.</p> <p>2. Unless there is authority of law for an election, it cannot be held.</p> <p>Mandamus — Writ—Conclusions.</p> <p>3. Where mandamus is sought to compel the Secretary of State to file a petition for the initiative, and all that appeared in the writ as to whether the petition complied with the law was, “Which said initiative petition and measure is alleged to be in form in substantial compliance with the provisions of the Constitution and laws of Oregon, governing initiative petitions and the filing thereof, and voting on measures included therein,” as this was but a conclusion, it was not sufficient to show that the petition was in such form as to require the Secretary of State to file the same.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department No. 1. Statement by Mr. Justice Burnett.</p> <p>The plaintiff, Ira A. Jones, describing himself as an able-bodied man aged 40 years, with an expectancy of 28 years, an engineer by vocation, whose services were reasonably worth $80 per month, states that he was employed in that capacity by the National Laundry Company, a corporation, in its steam laundry, and that his duties required him to work in and about the machinery of the establishment. He further avers, in substance, that while he was thus engaged the manager and another employee of the defendant made an addition to the main horizontal driving shaft of the machinery, which added shafting was broken or wrenched or bent in some way unknown to the plaintiff, but in such manner that it did not fit as it was designed and was a dangerous and insufficient piece of machinery, unprotected by any safety applicance or boxing, and was left unguarded and insecure, all of which was unknown to the plaintiff. He states that he was required to work about this appliance, and while engaged in the performance of his duties his clothing was caught by the defective shafting, whereby he was injured in the manner stated in his complaint, all to his damage in a sum stated. He attributes his injuries to the fault and neglect of the defendant in not furnishing a safe place in which plaintiff was to perform his duties.</p> <p>The truth of the complaint is challenged in material particulars by the answer. The defendant affirmatively states that the plaintiff was the chief engineer of the laundry plant and had control of the operation of the machinery, assisted in installing the additional shafting, and knew all about its condition; but with such knowledge, and while the machinery was in motion, without orders or suggestions from the defendant, he voluntarily climbed upon some boxes, stood close to the shaft so newly installed, and attempted to adjust the same while it was in rapid revolution, in consequence of which his clothing came in contact with the appliance mentioned, whereby he received his injury, all on account of his own contributory negligence. The second defense was that with full knowledge of the situation he assumed the ordinary risks of the employment and was injured without fault of the defendant.</p> <p>The answer being traversed, the plaintiff at the end of a jury trial recovered a verdict and judgment, from which the defendant' appeals.</p>

<p>From Multnomah: William: N. Gatens, Judge.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>This is a proceeding subsequent to garnishment. The plaintiff, the Prudential Loan & Trust Company, a corporation, brought an action against J. J. Metzler upon a promissory note. Judgment was rendered against the defendant by default. Prior to the judgment the plaintiff served two garnishment notices upon the Merchants’ National Bank, one on the 8th day of November, 1911, and the other on the 11th day of November, 1911. To both garnishments the bank answered, certifying that it had no funds belonging to the defendant. The certificate being unsatisfactory to the plaintiff, the Merchants’ National Bank was ordered to appear before the court and be examined on oath concerning the same. Allegations and interrogatories were served upon the garnishee, pursuant to the provisions of Section 315, L. O. L., to which the bank answered, denying that it had any money upon deposit belonging to defendant, J. J. Metzler, and disclosing that at the time of the garnishments it was carrying an account with the defendant in the name of “J. J. Metzler, Agent”; that after the garnishments it continued to receive deposits on such account and pay checks against the same signed by “J. J. Metzler, Agent”; that there was a balance of the account, which was afterward paid to the order of “J. J. Metzler, Agent.” By an amendment to the answer the garnishee alleged “that the deposits in the name of J. J. Metzler were of funds drawn by J. J. Metzler, as agent, upon parties with whom he was dealing in the purchase and sale of hops, that checks had been drawn against such deposits, in payment for the purchase of such hops, and that this garnishee was regularly advised of the same.” The' garnishee further alleged that at the time each of the garnishments was served upon it, J. J. Metzler was personally indebted to the bank in the sum of about $1,500 upon demand notes. The defendant Metzler was called as a witness, and testified that he had carried an account in the bank as “J. J. Metzler, Agent,” for several years; that he drew drafts upon different persons, with whom he was doing business, sometimes with bill of lading or warehouse receipt attached, and deposited the money in the bank in order to pay fOr hops purchased; that he ran two hop ranches, and raised hops himself; that the hop farm account was kept with the money for buying hops, but that he had no money in the bank on account of the hop farm at the time of the garnishment; that he received one half cent per pound as commission for buying hops for one firm; and that he usually received whatever he could make by the purchases and filling of orders for other firms. He stated that he did not know whether or not there was any commission belonging to him among the funds in question. In regard to commissions he sáid: “I donT know whether it was mine or not; it might have been some there.” Upon'being questioned particularly as to different deposits he made about the time of the notices of garnishment, he mentioned drafts upon his brother and a firm in Chicago. He did not say whether the drafts were for hops shipped from his farm, and seemed unwilling to explain the matter except in a general way. In the account the money was mingled together. His evidence tended to show that on the 4th of November, 1911, he drew a check on this account in favor of the Merchants’ National Bank for $1,004.45, in payment of his note, and that he used the funds for his personal expenses and had full control over such funds. It was admitted by the garnishee that the funds in the account in question at the time of the garnishment were paid out subsequent thereto, upon checks signed by the defendant, and that no part of such funds was applied to the defendant’s indebtedness to the garnishee. The court found that the funds in the hands of the garnishee, to the amount of $1,128.87, belonged to the defendant Metzler, and rendered judgment in favor of the plaintiff against the garnishee for $616.59, the amount of plaintiff’s judgment against Metzler. The garnishee appeals.</p>

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>This is a suit by Benjamin F. Scaiefe against Sarah E. Scaiefe to dissolve a marriage contract. From a decree in favor of plaintiff, the defendant appeals.</p>

<p>Street Railroads — Contributory Negligence — Question for Jury.</p> <p>1. In an action by a street paver against a street railway company for an injury caused by a street-car, tbe question of the contributory negligence of plaintiff, held, under the evidence, to be for the jury.</p> <p>Negligence — Question for Jury.</p> <p>2. Where the evidence is such as that reasonable men may fairly differ on the question as to whose negligence was the proximate cause of the accident, the question should be submitted to the jury.</p> <p>Street Railroads — Question for Jury.</p> <p>3. Whether an injury to a street paver was caused by the negligence of a street railway company held, under the evidence, to be a question for the jury.</p> <p>Municipal Corporations — Public Street — Care Required of Street Worker.</p> <p>4. Persons engaged in work upon the public streets are not bound to exercise the same degree of care and diligence in avoiding accidents as pedestrians who use the street merely as a medium of locomotion.</p>

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Chief Justice McBride. This is an action by Mabel Rogers against the Portland Railway, Light & Power Company to recover damages for personal injuries.

<p>Wills — Probate—Petition—Necessity.</p> <p>1. Section 1157, L. O. L., providing that an application for the probate of a will shall state facts necessary to give the court jurisdiction, and Section 1159, providing that an application for the removal of an executor must be made by a petition, when construed together, require that there shall be a petition as a prerequisite to the probate of a will.</p> <p>Wills — Probate—Evidence—Admissibility—Later Will.</p> <p>2. In proceedings to probate a will in which it is denied that it is the last will of the deceased, a later will is admissible to sustain the denial even though there has been no attempt to probate the later will.</p> <p>Wills — Revocation—Subsequent Will.</p> <p>3. A later will, duly executed while the testator was mentally competent and not unduly influenced, which disposes of all his property, is a revocation of an earlier will.</p> <p>[As to the revocation of wills in general, see note in 28 Am, St. Rep. 344. As to revocation through change in condition or circumstances of testator, see note in 130 Am. St. Rep. 628; and as to republication of revoked will, see note in 76 Am. St. Rep. 249.]</p> <p>Wills — Agreements for Mutual Wills — Remedies for Breach — Contest of Will.</p> <p>4. Where the proponents of an earlier will claim that it was made under an agreement between the testator and his wife that each should make a will in favor of the other, with remainder over to the wife’s children, and that the husband had been in possession of the property ■willed to him by his wife under that agreement, the existence of such an agreement cannot be determined in the proceedings to contest the later will, since it is no objection to the probate of that will that it violated such an agreement.</p> <p>[As to joint, mutual or reciprocal wills, see note in 136 Am. St. Rep. 592.]</p> <p>Frauds, Statute of — Contracts for Mutual Wills — Validity.</p> <p>5. Such an agreement for mutual wills is valid and binding as a contract, where it has been performed by one party so as to be taken out of the statute of frauds.</p> <p>Wills — Agreements for Mutual Wills — Evidence—Revoked Wills.</p> <p>6. Even though the will, made under such an agreement, has been revoked by a later will, it is still valid as evidence of the contract.</p> <p>Wills — Probate—Decree—Admission to Probate.</p> <p>7. Where the evidence necessary to have established a will had been presented to the court, but there was no petition for its probate, it was error for the court, in proceedings brought to probate an earlier will as a contest of the later one, to admit the later will to probate, even though the evidence showed it to be the last will of the deceased.</p>

From Multnomah: William N. Gatens, Judge. Department 1. This is an appeal from a decree of the Circuit Court of Multnomah County, granting a 'divorce to Jessie E. Crim from her husband, John L. Crim. The defendant, being dissatisfied with the decree rendered in the lower court, prosecutes this . appeal.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>The plaintiff, Frederick & Nelson, a corporation, declares in the usual form upon two promissory notes executed and delivered to it by W. H. Bard, amounting together to $750 of principal, besides interest as stated in the complaint.</p> <p>The answer admits the actual execution of the notes but makes two affirmative defenses. The first is, in substance, that the notes were executed without consideration, specifying under this head that the plaintiff had agreed to give him 10 per cent commission on the sale of all goods by it, either to himself or brought about by his procurement; that by virtue of that contract he had earned commissions largely in excess of the notes in question; and that when they were executed the plaintiff falsely represented to him that he had already been credited and paid those commissions in the settlement of an account which the defendant’s former wife had contracted with the plaintiff, and which the defendant had assumed and agreed to pay, and that the amount represented by the notes was due from the defendant to the plaintiff over and above the commissions. The second affirmative defense is also based on the alleged contract for commissions and is interposed as a counterclaim.</p> <p>The reply traverses the new matter of the answer. The case was heard before the Circuit Court without a jury, and judgment was rendered January 30, 1912, in favor of plaintiff against the defendant for the full amount claimed. The defendant has appealed.</p>

From Josephine: Frank M. Calkins, Judge. En Banc. Statement by Mr. Justice Eakin.- This is a suit brought against the city,of Grants Pass and Robert G. Smith, as mayor thereof, Robert H. Creager, as auditor and police judge thereof, and William Atchinson, A. S. Barnes, G. M. Caldwell, E. H. Culbertson, H. J. Clark, W. E. Everton, R. S. Morgan and A. A. Porter, each as councilman of said city of Grants Pass, to enjoin them from issuing and selling bonds of the city, and from…

. On the Motion. From Multnomah.: Henry E. McGinn, Judge. Statement by Me. Justice Buenett. This statement of facts is upon the hearing of the motion made by Evelyn M. Cummings to strike from the files the additional abstract of the respondent, Sophia J. Cummings.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Moore. This is an action by John Lawton against Morgan, Fliedner & Boyce, a corporation, Thomas Davidson, W. A. Leith, and B. J. Hecker to recover damages for a personal injury alleged to have been caused by the defendants ’ negligence. The summons herein was not served upon Davidson, Leith, or Hecker, and as to them the action was dismissed.

From Multnomah.: Henry E. McGinn, Judge. Statement by Mr. Justice Eakin. This is an action by George Hutchings against the Royal Bakery and Confectionery Company, a corporation, to recover damages for personal injuries received by the plaintiff on the 3d day of May, 1909. The action was first commenced on September 27,1909. The case was put at issue and trial commenced, when plaintiff moved for a judgment of nonsuit, which was on January 10, 1910, allowed by the court.

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by Eugene Caraduc against Schanen-Blair Company, a corporation, to recover damages for personal injuries sustained by the plaintiff while at work on the Lincoln high school building, Portland, Oregon. The cause was tried before a jury, which rendered a verdict in favor of the plaintiff. From a judgment entered thereon the defendant appeals.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Moore. This is an action by Susan Crane, Alonzo Crane, Alfred W. Crane and Christopher Crane against the Oregon Railroad & Navigation Company, to recover the possession of real property and damages for withholding the same. The facts are that George Crane died in the year 1901, and left surviving Susan Crane, his widow, and Alonzo, Alfred W., and Christopher Crane, his sons, the plaintiffs herein.

From Lincoln: Lawrence T. Harris, Judge. Department 2. Statement by Mr.' Justice Bean. This is a suit by K. A. Durkin against Eugene S. Ward, to quiet title to a quarter-section of timber land. Plaintiff appeals from a decree in favor of defendant. Plaintiff alleges that she is the owner in fee simple and entitled tó the possession of certain real estate situated in Lincoln County, Oregon.

From Douglas: John S. Coke, Judge. Department 2. Statement by Mr. Justice Eakin. This proceeding was commenced in tbe County Court of Douglas County by tbe petition of Rachel De Bow, Súra Hartbrod, Clara Marks, administratrix of tbe estate of Adolpb C. Marks, deceased, and Meier Marks, as successors to tbe interest of Zulkind Krotki, an beir of S. Marks, deceased, for tbe removal of H. Wollenberg as administrator of tbe above-entitled-estate.

<p>Executors and Administrators — Partnership Administrators — Removal.</p> <p>Where an administrator of a partnership estate continued the business for more than six years without responsibility to anyone, failed to keep thorough and accurate accounts, lost or destroyed account-books, and did not file a full inventory of the partnership property as it existed at the death of the deceased partner, he should be removed.</p> <p>[As to grounds for the removal of an executor or administrator, see note in 138 Am. St. Rep. 525.]</p>

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Burnett. Tbis is an action by B. F. Willey and William Schroder, copartners as Willey & Schroder, against J. T. Herrett.

Prom Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by A. R. Richardson against the Investment Company. The plaintiff declared on an express contract whereby he was to perform labor and furnish material in building a cement sidewalk at a specified price stated in the complaint. He alleged complete performance of the agreement on his part, and claimed a balance still due and owing to him from the defendant.

Prom Yamhill: William Galloway, Judge. Department 1. Statement by Mr. Justice Ramsey. This is a suit by Leona Tbomas against P. W. Spencer to quiet title to tbe southeast quarter of the southeast quarter of section 23, and the southwest quarter of the southwest quarter, and lots 5 and 6, of section 24, in township 5 south, range 3 west, of the 'Willamette meridian, in Yamhill County, State of Oregon, containing 160 acres. The complaint is in the usual form.

From Douglas: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice Burnett. Tbe plaintiff, Adolpb Klein, alleging bimself to be tbe owner of certain described land in Douglas County, Oregon, which is not in the actual possession of any person other than himself, brings this suit to remove from the title thereof a cloud which he asserts is cast thereon by the claim of the defendant George Turner.

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by L. S. Franck against J. E. Blazier for a broker’s commission tried before the court without the intervention of a jury. The court found in favor of plaintiff and entered judgment accordingly, from which defendant appeals. Plaintiff in his complaint alleges the contract and the consummation thereof.

<p>Appeal and Error — Review—Findings.</p> <p>1. Findings of the court in an action at law, when regularly made and filed, must be treated as a verdict and are governed by Article VII, Section 3, of the Constitution, as amended (see Laws 1911, p. 7), providing that no fact tried by a jury shall be otherwise re-examined in any court unless the court can affirmatively say there is no evidence to support the verdict.</p> <p>Brokers — Contracts—Construction.</p> <p>2. Where defendant entered into a written agreement to pay plaintiffs a commission of $750, to be allowed them if they entered into a contract with B. to act as sales agent of a named tract of land, also as a commission in helping to make the deal with B., only one commission could be collected, and plaintiffs could not recover the stipulated sum, together with a percentage commission for effecting the sale.</p> <p>[As to when a broker has earned his commission, see note in 139 Am. St. Rep. 225.]</p> <p>Brokers — Contracts—Construction.</p> <p>3. Where defendant entered into a written agreement to pay plaintiffs a commission if they entered into a contract with B. to act as sales agent of 244 acres of land, the commission to be paid upon the passing of the deed to B., the sale of the entire tract to B. was not a condition precedent to the payment of the commission, but recovery might be had upon the sale of a portion.</p> <p>Brokers — Actions—V ariance.</p> <p>4. There is no variance which can be taken advantage of after verdiet between proof that defendant entered into a contract to pay plaintiffs a commission upon their entering into a contract with B. to aet as sales agent of certain land, and that part of the land was sold to B., and allegations that defendant was to pay plaintiffs the usual commission and a further sum in case they should enter into a contract with B. to act as sales agent of described property, which was subsequently sold.</p>

<p>Insurance — Insurable Interest — Wife’s Property.</p> <p>1. The insured cannot recover on a fire insurance policy, running to him, on his wife’s interest in the insured premises, as his interest in his wife’s property is not deemed an insurable interest, within the rule that an insurable interest exists only when the insured would lose in case the property should burn.</p> <p>[As to existence of title in spouse of insured as violation of sole ownership clause in insurance policy, see note in Ann. Cas. 1912B, 269.]</p> <p>Insurance — Insurable Interest — In General.</p> <p>2. In an action on an insurance policy, plaintiff must allege and prove that the insured had an insurable interest in the property, both at the time of the.making of the contract of insurance and at the time of the loss.</p> <p>Insurance — Title of Insured — Statute.</p> <p>3. Where the ground on which the house of insured was situated was owned partly by others than the insured, and the policy contained a provision, as required by Section 4666, L. O. L., as amended by Laws of 1911, pages 279-284, that, if insured was not the sole and unconditional owner in fee simple of the ground, the policy would be void, unless otherwise agreed in an indorsement on the policy, and there was no such indorsement, the policy was void.</p> <p>Insurance — Construction—Language to be Followed.</p> <p>4. Section 4666, L. O. L., as amended by Laws of 1911, pages 279-284, which requires insurance companies to state in their policies that, if the insured is not the sole and unconditional owner in fee simple of the ground covered by the insured building, the policy shall be void, unless otherwise agreed in an indorsement thereon, and imposing a penalty for failure to make such provision in their policies, must be construed according to its language as making a policy containing such provision, and lacking the indorsement under such circumstances, void.</p> <p>Insurance — Construction of Policy — Severability.</p> <p>5. Where a policy covers a house and also personal property, and the insurance on the house is void because there was no indorsement, as required by the policy, that insured were not the sole owners, the insurance on the personal property is not rendered invalid as the two parts are severable.</p> <p>[As to divisibility of insurance contracts, see note in Ann. Cas. 1912C, 989.]</p> <p>PETITION FOR REHEARING-.</p> <p>Insurance — Waiver of Right to Forfeit Policy — Knowledge of Agent — • Statutory Policy Form.</p> <p>6. The provision in the standard form of a fire policy, in conformity with Laws of 1911, pages 279, 280, adopting such form, that it should be void if insured did not own in fee simple the land upon which the building stood, unless an agreement to that effect was indorsed upon the policy or added thereto, cannot be waived by the agent of the company in any other manner than that prescribed by the statute, and the fact that he knew that the insured did not own the fee simple does not entitle the insured to recover after the destruction of the property.</p> <p>[As to waiver of conditions in insurance policies requiring waivers to be indorsed in writing, see note in 107 Am. St. Rep. 99.]</p> <p>Insurance — Waiver of Right to Forfeit Policy — Statutory Form of Policy.</p> <p>7. The rules relevant to questions of waiver prior to the enactment of the standard policy law do not apply to policies written in conformity with that law.</p> <p>Statutes — Construction—Judicial Duty.</p> <p>8. It is the duty of the courts to give effect to the provisions of the standard fire insurance policy law, and not to nullify it.</p>

<p>Divorce — Alimony—Statute.</p> <p>1. Where plaintiff was granted a divorce from her husband, she was entitled under Section 511, L. O. L., to have incorporated into the decree a provision granting her a one-third interest in the land which was found to be owned by the husband.</p> <p>Divorce — Alimony—Modifying Decree.</p> <p>2. An amendment of a divorce decree so as to give plaintiff one third of her husband’s realty, but not allowing $1,000 cash alimony and $150 suit money given in the original decree, was beyond the jurisdiction of the court when made after the term at which the decree was entered.</p> <p>Judgment — Amendment—Authority of Court.</p> <p>3. The court may make changes in a judgment any time during the term it was entered, but afteT the term it is beyond its power to make any substantial change, except to correct clerical errors or to make the judgment conform to the actual decision.</p> <p>[As to amendment of judgment, see note in 62 Am. St. Rep. 233.]</p>

<p>From Tillamook: William Galloway, Judge.</p> <p>Department 2. Statement by Mr. Chief Justice McBride.</p> <p>This is an action by Hiram W. Smith against James Ilughey and Wesley Bush, administrator of the estate of Mary Hughey, deceased. The facts appear to be as follows:</p> <p>James and Mary Hughey, since deceased, were the owners of a farm in Tillamook County, which they leased to Smith for a period of 12 years. The lease was executed in June, 1911, and possession was to be given on the 1st day of April, 1912. The purpose of the lease was for a dairy farm, and the lessee was prohibited from subletting the premises. The farm was, at the time of the lease to Smith, already under lease to another party, which lease did not expire until 1913. Hughey and wife had mistaken the date of the prior lease, supposing it would expire on April 1,1912; and, when the time arrived for Smith to occupy it under his lease, they were unable to put him in possession during the year .1912. Smith brought this action for failure of defendants to so put him in possession, claiming that the value of the use and occupation of the land was $5,000.</p> <p>Defendants answered, admitting the failure to put plaintiff in possession and setting up the fact that such failure arose by reason of the mistake before mentioned, and alleged that plaintiff, long before the 1st day of April, 1912, had notice of the mistake and of defendant ^inability to put him in possession, and that said notice was given in ample time for plaintiff to have protected himself against loss by such failure.</p> <p>There was a reply denying the new matter in defendant’s answer. The court over defendants’ objection, admitted opinion testimony of expert farmers and dairymen as to what the value of the use and occupation of the land would be to a dairyman over and above the rent reserved, and, over.defendants’ further objection, gave the following instructions: “You are instructed that the measure of damages is what is the reasonable value of the use of the leased premises for one year from the 1st day of April, 1912, until the 1st day of April, 1913, less the rental for said year of $600. * * reaSorLable value of the use of the premises is what the plaintiff could have reasonably made off of the place as a dairy farm; that is, put to the use of such a farm and not what someone else has or may have made.” The plaintiff had a verdict for $500, and defendants appeal.</p>

<p>Mandamus — Corporate Stock — Transfer ofi Books — Remedies for Refusal.</p> <p>1. Under Section 613, L. O. L., providing that mandamus will not lie where there is a plain, speedy and adequate remedy in the ordinary course of the law, mandamus would not lie to compel a corporation to transfer stock on its books to one who had purchased the stoek voluntarily and issue to him certificates of stock, although it was alleged that the corporation was insolvent, indicating that an action at law for the value of the stoek would be fruitless, since the same relief could be obtained by a suit in equity.</p> <p>Corporations — Stock—Transfer on Books — Remedies for Refusal.</p> <p>2. Where a corporation refuses to transfer stock on its books and to issue certificates to a purchaser, he may sue it at law and recover the full value of the stock, and, if this fails to afford him a complete remedy, he may sue in equity to compel a transfer and the issuance of the certificates.</p> <p>Corporations — Rights of Stockholders — Inspection of Corporate Books.</p> <p>3. A stockholder in a private corporation may, by mandamus, obtain an inspection of the corporate books, if such privilege is denied, but must show that he desires such examination for some just purpose or to prevent some injury which he might sustain if not permitted to inspect them, and henee the writ would he denied where there was no allegation as to the necessity for the examination of the hooks.</p> <p>[As to the right of stockholders to inspect hooks of the corporation, and the remedies for its enforcement, see note in 107 Am. St. Rep. 674.]</p>

From Marion: William Galloway, Judge. On Motion to Dismiss. This is a suit by the American Life & Accident Insurance Company against J. W. Ferguson, State Insurance Commissioner. There was a decree in favor of the plaintiff and defendant appeals. The facts are fully set forth in the opinion on motion to dismiss.

<p>Statutes — Validity—Certainty of Provisions.</p> <p>1. Section 6321, L. O. L., relating to roads and highways, special taxes therefor, etc., and providing for the voting of an additional tax by the taxpayers of any road district of any county, is void for uncertainty.</p> <p>Statutes — Validity of Provisions — Certainty and Definiteness.</p> <p>2. . Laws of 1913, page 611, is entitled “An act to amend Section 6321, Lord’s Oregon Laws, relating to roads and highways,” and Section 1 amends Section 6321, L. O. L. Section 2 provides that all taxes heretofore levied under Laws of 1909, page 297, are validated, notwithstanding any formal defects in the law providing for same. Laws of 1909, page 297, does not relate to the levying of taxes, but to the treatment of tuberculosis patients. Held, that Section 2 is void for uncertainty since curative statutes are to be construed strictly.</p>

From Clatsop: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action in the nature of a quo warranto by the State of Oregon, upon the information of E. B. Tongue, district attorney in and for the fifth judicial district of Oregon, against Alexander Gilbert, W. E. Lewis, Louis Heinrich, Monroe Grimes, William B. Dresser, J. E. Brallier, D. Henshaw, J. L. Berry, F. S. Godfrey and J. E. Dillian.

<p>From Jackson: Frank M. Calkins, Judge.</p> <p>Department 2. Statement by Mr. Chief Justice McBride.</p> <p>This is a suit by J. Gr. Sbebley against A. H. Quatman and J. K. Kendrick, and is brought for the purpose of having the defendant Quatman declared trustee for plaintiff of certain lands situated in Jackson County.</p> <p>The complaint, in substance, alleges that plaintiff is a skilled and experienced miner and prospector, and that by virtue of such skill and experience and his research and prospecting of the lands described in the complaint he had discovered such lands to be rich in mineral; that he informed defendant Kendrick of what he knew of the land, and the latter, in consideration of such knowledge of plaintiff and of his skill, experience and assistance, offered to find parties able and willing to advance the necessary funds to purchase said premises, and it was then and there, on June 1, 1909, covenanted and agreed between plaintiff and defendant Kendrick that the latter should find the party or parties who would, on account of the discoveries of the plaintiff, and on account of the knowledge of the skill and experience of the plaintiff as a miner, for a third of said property, advance the necessary funds to purchase the same, and that said defendant Kendrick and this plaintiff should each have an undivided one third of said property as their own. The complaint further states:</p> <p>“That in accordance with said agreement said defendant Kendrick with the aid and assistance and advice of the plaintiff persuaded G-. A. Barceloux, W. E. Scearch and C. L. Donohoe to advance and pay out the necessary funds, to wit, $11,500 to purchase and pay for said lands, and that said Barceloux, Scearch and Donohoe did in consideration that they between them should become the owners of the undivided one third of said premises, and the said Kendrick and the said plaintiff should each become the owners of the undivided one third of said premises, on to wit, November 5, 1909, pay unto Joseph Wakeman and Nancy Carter the price of said premises as aforesaid, and that the said Wakeman and Carter then and there conveyed said premises nnto the said defendant J. K. Kendrick in trust for the use and benefit of himself and plaintiff to the extent of the undivided one third each and the said Barceloux, Scearch and Donohoe to the extent of the undivided one third between them. * * That the lands hereinbefore referred to and which were purchased and taken by said defendant Kendrick in trust as aforesaid under said contract are described as follows, to wit (here follows description of the land). # # That on, to wit, on or about May 18,1909, without the knowledge, or consent of the plaintiff and against the wish and will of the plaintiff the defendant Kendrick by his deed that day made, conveyed said premises unto the defendant A. H. Quatman. * * That said defendant Quatman paid no money, gave nothing of value, made no promise, entered into no obligation whatever and gave nothing nor did anything of value whatever as consideration for said premises for said conveyance. * * That said premises are of great value, to wit, more than the sum of $30,000. * * That the said defendant Quatman took the said conveyance of said premises with full knowledge of the rights of the plaintiff in and to said premises and as hereinbefore set forth. * * That plaintiff is informed and believes and on such information and belief avers that the said conveyance of said premises by said deft Kendrick to said deft Quatman was made and done in order to defraud this plaintiff of his rights in and to said premises. * * That since the making of said conveyance plaintiff has demanded of each and both of the defendants that they convey to him the undivided one third of said premises and has asked that they make and deliver to him, in such form that it may be recorded in the office of the county recorder of Jackson County, Oregon, a declaration in writing which will show his right, title, interest and estate as aforesaid in and to said premises. * * That each of the said defendants have neglected and refused and now neglect and refuse to make said conveyance or said declaration, and they each now allege that the plaintiff does not now have and never had any right, title, interest, or estate in or to said lands or any portion thereof.”</p> <p>Then followed a prayer for a decree declaring the trust, requiring Quatman to convey to plaintiff, and asking general relief. The defendant Kendrick was not served, and the defendant Quatman answered denying plaintiff’s allegations as to his skill and experience and his agreement with Kendrick, and as to any trust relation between Kendrick and plaintiff, and denied the allegation that he paid no money, nor gave anything of value for the lands, and alleged that the conveyance to him by Kendrick was made for a good and valuable consideration, in good faith and free and clear from encumbrances, and without any knowledge of any rights of plaintiff in the premises. Further denials and a reply put the case at issue.</p> <p>On the trial it appeared that Kendrick entered into an agreement with Gr. A. Barceloux, W. E: Scearch, and O. L. Donohoe to advance money to purchase the lands, which agreement is- as follows:</p> <p>“Whereas, J. K. Kendrick, Gr. A. Barceloux, W. E. Scearch and Charles L. Donohoe are desirous of securing options on certain mining land on Pleasant Creek and Ditch Creek and vicinity in the County of Jackson in the State of Oregon, and, whereas, J. K. Kendrick already has an option on 240 acres of land in that vicinity belonging to one Joseph Wakeman and 80 acres belonging to one Mary Carter, and, whereas, said parties have further agreed that the said Gr. A. Barceloux, W. E.' Scearch and Charles L. Donohoe shall furnish the money necessary to secure said options; now,' therefore, it is mutually agreed by and between said parties that the said J. K. Kendrick shall take all further options to said mining land in said vicinity in his own name for the benefit of said aforesaid parties as follows: The said J. K. Kendrick to own two thirds interest in and to all of said options so taken and the • said Gr. A. Barceloux, W. E. Scearch and Charles L. Donohoe one ninth interest each, therein and the said Gr. A. Barceloux, W. E. Scearch and Charles L. Donohoe shall furnish the money that may be necessary to secure said options and have already placed in the hands of J. K. Kendrick the sum of one thousand dollars for said purposes and in consideration thereof said W. E. Scearch, Gr. A. Barceloux and Charles L. Donohoe shall also have an undivided one ninth interest in and to all lands of "Wakeman and Cartier to which options have already been secured "by said J. K. Kendrick as hereinbefore stated.. And it is further expressly understood and Agreed between said parties that in the event of.-the sale of any of said lands upon which opthxcá are taken or shall be purchased under this agreement that all moneys furnished for said purple by any of the parties hereto and all expenses, incurred shall first be paid to the parties fur"lüc.láiíg the same out of the proceeds of the sale of the finid land or options and thereafter the balance obtained from said sale of said lands for said options shall be divided among said parties in the proportion of their interests as hereinbefore stated. It is understood that all property hereunder shall be disposed of as a majority direct.</p> <p>“In witness whereof the parties hereto have hereunto set their hands this the 16th day of September, 1909.</p> <p>“J. K. Kendrick.</p> <p>“George A. Barceloux.</p> <p>“W. E. Scearch.</p> <p>“C. L. Donohoe.”</p> <p>In pursuance of this agreement the three parties last named furnished between eleven and twelve thousand dollars and purchased the property, the deed being taken in the name of Kendrick. The trial court found for the defendant Quatman, and the plaintiff appeals.</p>

<p>Trusts — Purchase of Option — Contracts—Construction.</p> <p>1. Plaintiff, having discovered certain mineral land, contracted with defendant and two others to procure an option thereon, the same to be for the equal joint benefit of the four; that defendant should advance the money for the option, and should be repaid in full the amount so advanced on sale of the land, and the balance remaining from the sale of the option or property secured under it should be divided equally among the four; it being agreed that the title to the property and option should be taken in defendant’s name, and that he should hold the same in trust for the joint benefit of all. Held, that such contract only contemplated that defendant should advanee the money to pay for the option and not the purchase price of the land, and, the option having been purchased, it became the duty of each of the others to contribute his share to the final payment, unless money should be raised by a sale of the property in the meantime, and that, until money was realized from the option or land, defendant held the rights secured under the option in trust to repay his own advances and to divide the overplus equally between himself and his associates.</p> <p>Trusts — Purchase of Mineral Land — Advancements.</p> <p>2. Where a contract to purchase an option on mineral land, binding defendant to advance the money to purchase the option, only provided that he should hold the same for the equal joint benefit of all the parties, and, after he was repaid for the amount advanced for securing the option from a sale of the property, the balance should be divided among those interested, but, in order to protect himself for the amount advanced to purchase the option, it was necessary for him to pay the further amount necessary to secure the title, defendant held such title in trust, not for the several benefit of each party, but for the joint benefit of all, and henee he was not required to sever the liabilities of his associates by receiving from one his one fourth of the purchase price; but, their liability being joint and not several, defendant was entitled to hold the whole property until all had repaid his advances, they being not joint tenants of the equitable title, but joint aestwis que trustent, subject to joint liabilities and possessing joint rights to the performance of the trust.</p> <p>Trusts — Trustee—Mining Property — Power of Sale.</p> <p>3. Where defendant purchased mineral land under a contract that he should hold the same in trust, first, to secure advances, and, second, for the joint benefit of all the parties to the contract, it being intended that the land should be sold at a profit, a power of sale in favor of defendant for a reasonable price would be implied, without reference to the consent of his co-cestuis que trustent; they being entitled, in case of a reasonable offer being procured, to a reasonable time within which to procure a more favorable one.</p>

<p>From Klamath: Henry L. Benson, Judge.</p> <p>Department 2. Statement by Mr. Justice Eakin.</p> <p>This is an action by M. B. Doty against the Klamath Labe Navigation Company, a corporation, and is brought to recover $200, the reasonable value of services rendered the defendant in moving the steamboat Klamath about 700 feet from the bank of Lake Ewauna across the wagon road and loading it on to railroad cars, and $17.50, the reasonable value of the labor of five men one day. It seems that the plaintiff had a written contract with the defendant to move the said boat from the water to solid ground, so that the railroad company could build a spur track to it, load it on to the cars, and haul it to Hank, on Upper Klamath Lake, and plaintiff was to unload it there at the lake. After the boat was removed from the water, the railroad company refused to build a spur track to the boat and to load it on to the cars. Plaintiff was employed by Colonel Wilkins to move the boat across the county road to the sidetrack of the railroad company, about 700 feet distant, and to load it on cars there, which plaintiff did. Plaintiff alleges that $200 is the reasonable value of said services. The evidence tends to show that Parkhurst, the superintendent of the company, was going away, and he placed the matter of the supervision of the removal of the boat in the hands of Colonel Wilkins, who was vice-president of the defendant company.</p> <p>Defendant admits by its answer that plaintiff performed the terms of the written contract, and the whole contention at the trial was as to the authority of Colonel Wilkins to employ plaintiff to move the boat across the county road and to load it on the cars. The verdict of the jury was in favor of plaintiff for the amount sued for, and from a judgment thereon defendant appeals. Submitted in briefs without argument under the proviso of Rule 18 of the Supreme Court: 56 Or. 622 (117 Pac. xi).</p>

<p>From Klamath: Henry L. Benson, Judge.</p> <p>'.Department 1. Statement by Mr. Justice Ramsey.</p> <p>Tbis is an action at law by A. G. Lewis, doing business under the firm name of “The Monarch Grocery” against George C. Clark and Dr. J. E. Stauffer, partners in business under the firm name and style of George C. Clark and Dr. J. E. Stauffer, to recover from the defendants, as partners, the sum of $879.69, alleged to be due the plaintiff for goods, wares and merchandise which the plaintiff claims that he sold to the defendants. The complaint is in the form of an implied count in assumpsit for goods sold.</p> <p>The defendants filed separate answers! The answer of Dr. J. E. Stauffer denies every allegation of the complaint excepting paragraph 1, and that part of paragraph 4 which alleges that the defendants had not paid any part of said $879.69, for which the action was brought. In accordance with a stipulation of the parties, this action was tried by the court, without a jury, and findings and a judgment were rendered against the defendant George C. Clark for said sum of $879.69, and 'interest and for costs, and findings and a judgment were rendered for the defendant Dr. J. É. Stauffer and against the plaintiff for costs and disbursements. The plaintiff appealed from the judgment in favor of the ■ defendant Dr. J. E. Stauffer, and assigns various errors in the findings of the court. Submitted on briefs without oral argument under the proviso of Rule 18 of the Supreme Court: 56 Or. 622 (117 Pac. xi).</p>

From Grant: Dalton Biggs, Judge. Department 1. Statement by Mb. Justice Burnett. This is a suit by John B. Coffey, as administrator of the estate of Grant Scott, deceased, confessedly insolvent, against Elizabeth J. Scott, to set aside a conveyance by the decedent in his lifetime, alleged to have been made with intent to defraud creditors.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Bean.

<p>From Grant: Dalton Biggs, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by the First National Bant of Grant County against W. H. McCreary and Thomas B. McPherson.</p> <p>Defendant McCreary appeals from a decree in favor of plaintiff. The facts necessary for a determination of this case are substantially as follows: On the 3d day of January, 1907, Dean Officer executed to the defendant Thos. B. McPherson a chattel mortgage upon 120 head of horses, more or less, upon the range in Grant County, Oregon, to secure the payment of two certain promissory notes, one for the sum of $2,600 and one for $2,000, executed by Dean Officer and W. H. Officer on tbat date. This mortgage was duly recorded in Grant County. Defendant McCreary alleged tbat plaintiff wrongfully converted tbe borses to bis own use in Grant County, Oregon; tbat on tbe 29th day of June, 1907, prior to the maturity of either of tbe notes, Tbos. B. McPherson, who was then in possession of tbe notes and mortgage, indorsed and transferred tbe same to him; and tbat be purchased them in good faith and in due course; that the value of tbe horses is $6,000. On October 20, 1908, McCreary demanded of plaintiff tbe possession of tbe personal property described in tbe mortgage, and commenced an action at law against the bank for tbe sum of $6,000, for the conversion of tbe borses. Tbe bank filed an answer to tbe complaint, and at tbe same time filed a complaint in equity in the nature of a cross-bill, setting forth all tbe facts, and alleging, among other things, tbat John Carter was tbe authorized agent of T. B. McPherson, and as such agent was engaged in buying livestock in' Grant County, Oregon; tbat Carter employed one Dean Officer to assist him in buying horses; tbat between May 1, 1906, and January 3, 1907, in Grant County, tbe plaintiff, at tbe request of Carter, advanced $4,600 to Officer to be used in purchasing horses in tbat vicinity which were to be afterward sold to McPherson; that tbe money was so used; tbat on January 3,1907, John Carter, in order to cover the money advanced to Officer by plaintiff, drew a draft on McPherson in favor of plaintiff for $4,600, which draft was forwarded to McPherson at bis residence, South Omaha, Nebraska; tbat upon presentation of tbe same McPherson refused to honor it and the draft was protested; tbat on tbat date Dean Officer executed! to McPherson the chattel mortgage mentioned as security for tbe reimbursement to him of tbe $4,600; fhat on the 7th day of January, 1907, the notes and chattel mortgage were forwarded to McPherson at Omaha; that McPherson upon receiving them declared that the transaction was without authority from him and refused to accept such notes and chattel mortgage, whereupon plaintiff at the request of Dean Officer demanded the return of the same, which McPherson refused, stating that he would hold them until he could obtain a settlement with Carter, and that he had advanced about $3,000 in payment for a portion of the horses described in the mortgage. After McPherson repudiated the mortgage, and prior to the 29th day of June, 1907, plaintiff purchased the horses from Dean Officer, in order to recover the money it had advanced for such purchase, for the sum of $4,600, and claims to be the owner thereof. Plaintiff alleges that the mortgage is void, for the reason that the same was given without consideration, was never delivered to the mortgagee, was executed without the knowledge of the mortgagee and against his wishes, and that McPherson procured the possession of the same through fraud and mistake. Plaintiff asks to have the mortgage annulled and canceled of record as a cloud upon its title to such horses. John Carter began to purchase horses for the Uintah Hereford Cattle Company of Nebraska and McPherson in 1906. The arrangement was that McPherson should furnish money for the purchase of the horses, upon contracts being approved by him; the horses to be shipped to him at Omaha. Carter went to the plaintiff bank with a letter of credit from McPherson to.the amount of $10,000. Afterward Carter employed Dean Officer, who purchased several head; Carter from time to time drawing drafts upon McPherson or his firm for the payment thereof. McPherson advanced about $3,000 which he claimed he paid for the horses included in the mortgage in question at the time the draft for $4,600 was drawn upon him. The Circuit Court rendered a decree canceling the mortgage as fraudulent.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>This is an action by 0. R. Templeton against Finley Morrison (appellant), W. E. Cook and Cecil B. Lloyd. From a judgment in favor of plaintiff the defendant Morrison appeals. The respondent files motion to dismiss appeal. The grounds for this motion are fully set forth in the opinion.</p>

From Multnomah: David R. Parker, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit in equity by Sophia R. Wilson against E. P. McCarthy and Nellie M. Rogers to rescind a certain contract wherein the plaintiff exchanged the Mercedes Rooming-house, situated in the City of Portland, for 80 acres of land located in Cowlitz County, State of Washington. From a decree in favor of plaintiff, defendant Nellie M. Rogers appeals.

From Multnomah: Robert Gr. Morrow, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by Ernest E. Buchanan against the Lewis A. Hicks Company, a corporation, to recover damages for a personal injury. The complaint charges that the defendant was negligent in failing to place a guard upon a circular ripsaw that was operated by electric power, whereby the plaintiff’s left thumb was cut and hurt to his damage in the sum of $4,000.

<p>From Multnomah: Henry E. McGinn, Judge-</p> <p>Department 2. Statement by Me. Justice Bean.</p> <p>This is a mandamus proceeding commenced July 19, 1912, by S. Roseoe Beard, as secretary of the Beard Fruit Company, against A. Edgar Beard, to compel the defendant to deliver to the plaintiff, as secretary of the Beard Fruit Company, certain books, papers, and promissory notes. The writ sets forth, in substance, as follows: The Beard Fruit Company is a foreign corporation, organized under the laws of the State of Washington, and the plaintiff is and has been since July 9, 1912, the duly qualified and acting secretary of the corporation, and entitled to the books and choses in action of the company, some of which are without the State of Oregon, and all under the control of the defendant. The defendant resides in Multnomah}, County, Oregon, and cannot be served personally in j the State of Washington. For a long time prior to ¡ July 9,1912, the defendant was secretary of the Beard ! Fruit Company, and had and claimed the records and I papers as such secretary. Plaintiff demanded the1 possession of the same, but the defendant did not comply therewith.</p> <p>The latter demurred to the writ for want of jurisdiction and sufficient facts. The Circuit Court overruled the demurrer. The defendant answered, denying all the allegations of the writ, except that the company is a Washington corporation, and that the defendant resides in Oregon, and was secretary prior to July 9, 1912. The first defense alleges in effect that the defendant is and has been since November 17, 1901, secretary of the corporation, and sets forth in detail facts from which the defendant claims that the election of the plaintiff as secretary was illegal. The second defense shows that the books and papers are in the possession of Gilbert Daniels, the resident trustee of the company at Yancouver, Washington. The third defense alleges in effect that there is controversy existing among the stockholders as to the ownership of the shares of stock in the corporation; that this proceeding is a plan to obtain control of the corporation illegally, in furtherance of a conspiracy; that the title of the plaintiff to the office has not been adjudicated, and that the court has no jurisdiction over the subject matter, or over the defendant; that the proceeding relates entirely to the management of the internal affairs of a foreign corporation.</p> <p>Plaintiff filed a reply putting in issue the material allegations of the answer. Upon the trial the Circuit Court made findings in favor of the plaintiff. The defendant requested certain findings of facts, which were refused and exceptions duly saved. Judgment was entered making the writ peremptory and . the defendant appeals.</p>

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by S. Roseoe Beard, as executor of the estate of S. M.-Beard, deceased, against A. Edgar Beard, to recover the possession of a certificate for 10 shares of stock in the Beard Fruit Company.

<p>From Multnomah: Henry E. McGtnn, Judge.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>This is an action by John Alexander Dalrymple, by Katherine Dalrymple, bis guardian ad litem, against tbe Covey Motor Car Company to recover damages for personal injuries. Tbe cause was tried before a jury and a verdict rendered in favor of plaintiff, assessing his damages at $5,000. From a resulting judgment defendant appeals.</p> <p>The complaint was in the nsnal form in such cases. Defendant denied any negligence on its part and pleaded contributory negligence on the part of plaintiff, and further pleaded that at the time of the accident “Harrington was a chauffeur employed by the defendant herein, but that on the said 16th day of May, 1911, the said Harrington was operating this Cadillac automobile under the direction and control of the owner thereof (Dunham),” and also pleaded that the occurrence was purely an accident.</p> <p>It appears from the record that the defendant is a corporation engaged in the business of selling automobiles in the City of Portland, Oregon. A few days before the accident alleged in the complaint, one Dunham purchased an automobile of the defendant. In accordance with the arrangement, F. B. Harrington, an employee of the company,- two days prior to the accident gave Dunham instructions as to running the automobile. The car remained in the defendant’s garage until the morning of the 16th of May, 1911, about 8 A. M., when Dunham came to take it away. Mr. Barnes, the defendant’s head salesman in the Cadillac department, instructed Harrington to take the car through the populous part of the city to East Portland, as Dunham had had no experience as a driver, where it was intended that the latter should take charge of the same himself. On the way Harrington and Dunham stopped at different places and picked up some articles that Dunham had purchased the day before, consisting of automobile accoutrements, etc. About 9 A. M., while driving on Ninth street, the car collided with the plaintiff. This the jury found was owing to the negligence of the chauffeur, Harrington, which is not questioned upon this appeal. After the accident Harrington took the injured boy to the hospital and then carried the boy’s mother there, after which he took Mr. Dunham over to.the East Side, where he left him and took the street-car home. It appears that Harrington was employed by the Covey Motor Car Company in the capacity of a chauffeur and garage-hand; that he generally unloaded cars when received and took them to the garage; that he drove them to and from the garage nights and mornings, and at different times took parties out. It also appears that he instructed purchasers with reference to the operation of cars and had the general handling of the latter as a rule. Harrington testified that he had served in different capacities in the auto business for about nine years; that his object in going with Dun-ham that morning was “simply to take the car through the city and to get him over on the East Side, out of town, where he could go from there by himself, because I refused to let him drive through town alone”; that Dunham was not an experienced driver; that the salesman of the Covey Motor Car Company also gave instructions as to operating the cars; that at the time of the accident the owner of the car was in the front seat with him and they were driving south on Ninth Street at about the crossing; that there was a dirt wagon going north on Ninth Street,- and, when the front end of the machine was about even with the wagon, the plaintiff, a schoolboy, came around the end of the wagon and was struck by the machine.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Eakin. This is an action by J. C. Stuart against the University Lumber & Shingle Company, a corporation, to recover the contract price of certain railroad ties.

Prom Clatsop: Jambs A. Eakin, Judge. Department 2. This is a suit by A. Osburn and W. R. Chisholm against Edastiina Maata and others. Prom a default decree,' and an order denying a motion to set aside such decree, the defendants appeal.

<p>Prom Marion: William Galloway, Judge.</p> <p>Department 1. Statement by Mr. Justice Moore.</p> <p>This is a suit by Coolidge & McClain against Charles Oberlin, Nellie Oberlin, Henry De" Yol and Ladd & Bnsh, a corporation, to have deeds to real property decreed to have been executed with intent to hinder and defraud a creditor, and to subject to the payment of a demand a sum of money deposited in a bank.</p> <p>The admitted facts are that a farm of 72% acres in Marion County, Oregon, was conveyed September 14, 1903, to the defendants Charles Oberlin and Nellie, his wife, the consideration being $2,600, of which $1,000 was then paid, and the remainder of the purchase price was secured by a mortgage of the premises. Oberlin borrowed from the plaintiff, a corporation engaged in banking, various sums of money amounting on March 23, 1908, to $4,404, for which sum he gave it his promissory note payable in one year, taking up all his other notes then held by that bank. Oberlin and his wife and her nephew, the defendant Henry De Yol, on August 25, 1908, subscribed their names to a writing, wherein it was stated that upon an accounting it was found that Oberlin was indebted to her in the following sums, all of which bore 6 per cent interest, to wit, $1,000 for five years, amounting to $1,300, $700 for the same time, $910, $1,300 for three years, $1,534, and $200 for five years, $290, aggregating $4,034; that Oberlin was indebted to De Yol for labor performed at $30 per month from April 1, 1905, to August 1st of that year, amounting to $120,- from January 1, 1906, to. November 1, 1907, $660, from April 1, 1908, to August 20th of that year, $140, aggregating $920, and, inasmuch as no interest had been paid him on these sums, he was entitled to $1,000; and that, in consideration of her agreement to release her husband from the payment of any part of the amount so found to be due her, and of her promise to pay De Yol the sum so ascertained to be due him, Oberlin, for the expressed sum of $1, executed a quitclaim deed of all his interest in the farm, and also transferred to her all his stock, implements, etc., then on the premises. Oberlin and Ms wife on August 26,1908, made and delivered a deed of the farm to J. L. Combs and his wife, who in exchange therefor executed a deed to lots 7 and 8 in block 8, North Salem, conveying an undivided .five-sixths thereof to Mrs. Oberlin, and the remaining interest in the premises to De Vol. There was established on the Salem real property at the time Mrs. Oberlin and De Vol secured the title thereto a steam laundry, which for two years and eight months the vendees continued to operate, Oberlin being employed by them.</p> <p>Oberlin and his wife and De Vol on April 28, 1911, sold and conveyed these lots, subject to a mortgage thereon for $4,772 in cash, which sum was deposited to her credit in the bank of the defendant Ladd & Bush at Salem.</p> <p>The plaintiff commenced an action in the Circuit Court of Marion County May 1, 1911, against Oberlin to recover the amount of his promissory note, and, having caused a summons to be issued and given an undertaMng for an attachment, a writ thereof was issued, pursuant to which a notice of garnishment was served on the defendant Ladd & Bush, the agent of which in answer thereto certified that the bank held the sum of money so deposited as that of Mrs. Oberlin, but it had no money or property belonging to her husband. This suit was instituted May 9,1911, to have it decreed that Oberlin had been the owner of the farm; that the conveyance of his interest therein to his wife was fraudulent as to plaintiff; that he had been the equitable owner of the lots in North Salem, and was the owner of the money so deposited. A judgment was rendered in the action May 15, 1911, for the sum demanded. Thereupon, a supplemental complaint herein was filed setting up such'recovery. The case, being at issue, was tried, resulting in a decree as prayed for by the plaintiff, and the defendants appeal.</p>

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Department 1. Statement by Mr. Justice Moore.</p> <p>This is an action by Fritz Nelson against the St. Helens Timber Company, a corporation, to recover damages for a personal injury. The complaint alleges the defendant’s incorporation; that it operated a railroad and used cars which were coupled by a link and a pin; that on June 27, 1911, the plaintiff was and for several months prior thereto had been employed'by the defendant in piling logs on a rollway; that he was inexperienced in coupling cars, which fact was known to the defendant’s agents who neglected to notify him of the danger incident thereto; that, pursuant to defendant’s order he undertook to make a coupling and in doing so his left hand was crushed, rendering it useless, to his damage in a specified sum.</p> <p>The answer denies the material averments of the complaint, and alleges that the injury complained of was occasioned by the plaintiff’s carelessness; that the risk was assumed by him; and that the hurt was caused by the negligence of a fellow-servant.</p> <p>The reply denies the averments of new matter in the answer, and the cause having been tried resulted in a verdict and judgment in plaintiff’s favor for $3,000, and the defendant appeals.</p>

<p>From Hood River: William L. Bradshaw, Judge.</p> <p>Department 2. This is a suit "by the Oregon-Washington Railroad & Navigation Company, against Gr. R. Castner, county judge; Gr. A. McCurdy, commissioner; and O. H. Rhodes, commissioner, of Hood River County, Oregon; and Murray Kay, county surveyor, W. L. Clark and T. A. Reavis, constituting the hoard of county road viewers, of Hood River County, Oregon; and A. C. Adams, Charles Gray, Elbert Fairley, J. S. Hoover, Mrs. Della Meyer, Mrs. Ida Granstrom, Mrs. Geo. Dillaboy, Mrs. Bell Osborn, Mrs. C. A. Brolliar, Mrs. Harry H. Wait, N. C. Olsen, Matt. Johnson, Scott C. Young, Alex Bradbum, Jay P. Lucas, M. I. Ostergard and S. W. Curran. From a decree dismissing the complaint, plaintiff appeals.</p>

From Douglas: Jambs W. Hamilton,'Judge. Department 1. Statement by Mr. Justice Eamsey. Tbis is an action by tbe Oswego, Dallas & Eoseburg Eailway Company, a corporation, against W. L. Cobb and others.

<p>Homestead — Nature of Exemption.</p> <p>1. Only those entitled to it may claim the homestead exemption given by Sections 221-223, L. O. L.</p> <p>Mechanics’ Liens — Property Subject to Lien — Homestead.</p> <p>2. Under Sections 221-223, L. 0. L., providing that the homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment, that in no instance shall it be reduced to less than one lot, but that the aet shall not apply to decrees or the foreclosure of any mortgage executed by the husband and wife, a family homestead is not subject to a mechanic’s lien, there being no exception in favor of such lien.</p> <p>Homestead — Waiver of Homestead.</p> <p>3. The homestead exemption may be waived or relinquished by abandonment or conveyance, so that the property will be subject to levy and sale under execution upon a judgment had against the owners.</p> <p>[As to what constitutes an abandonment of a homestead, see notes in 60 Am. Dec. 607; 102 Am. St. Rep. 388.]'</p> <p>Homestead — Sale of Excess — Burden of Proof.</p> <p>4. In view of Sections 224, 225, L. O. L., providing that," whenever any officer shall levy upon a homestead, the owner shall claim it as such, whereupon the officer shall notify the creditor, and, if such homestead shall exceed the minimum, it may be appraised, and all lands in excess of $1,500 sold, or in lieu of sueh proceedings the creditor may at any time pay the execution debtor the sum of $1,500, and proceed to sell the homestead, a creditor desiring to subject a homestead to a mechanic’s lien, on the theory that its value was in excess of $1,500, has the burden of proving sueh value.</p>

<p>Master and Servant — Master’s Liability — Place of Work — Guardrails — “Other Structure More Than 20 Feet from the Ground or Floor.”</p> <p>Under Laws of 1911, page 16, Section 1, providing that all owners engaged in the construction of buildings shall see that all scaffolding, staging, “or other structure more than twenty feet from the ground or floor” is provided with safety rails or other contrivance, and that-generally those in charge of any work involving risk to employees shall use all practical protection for safety, limited only by the necessity for preserving the efficiency of the structure, and Section 5, abrogating the fellow-servant rule in cases of defective structures and negligence of foremen, the words “or other structure” were not limited to the class of “scaffolding” and “staging,” but a spur track on a trestle more than 20 feet from the ground, which though built as a railroad had been used only as a means of erecting a power-house, was pro Jiao vice a scaffolding, staging, or platform, so that, where its foreman ordered plaintiff to perform labor thereon, defendant was bound to maintain a guard-rail until the power-house was completed or until there was no other use for the trestle as a means thereto.</p> <p>[As to the liability of an employer for injuries to employees caused by fall of scaffolding, see note in Ann. Gas. 1913B, 1123.]</p>