Volume 67 — Oregon Reports

From Multnomah: William N. Gatens, Judge. Department 2. Statement by Mr. Justice McNary. This is an action by Orton E. Goodwin against Edgar W. Rowe and Harry J. Martin, doing business under the firm name and style of Rowe & Martin, to recover damages for personal injuries, which resulted in a verdict and judgment against defendants for $7,250.

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement by Me. Justice Bean. This is an action by A. W. Hutcheon against the West Coast Life Ins. Co., commenced in the justice’s court for Portland district to collect $55.68, commission on insurance policy premiums. Judgment was there rendered in favor of plaintiff, and defendant appealed to the Circuit Court.

From Linn: William Galloway, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is a suit by L. A. Crandall to enjoin J. C. P. Mary from trespassing and to quiet plaintiff’s title to a strip of land three feet in width and containing a small fraction of an acre, situated in the City of Lebanon.

From Multnomah.: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Eamsey. This is an action by Andrew Smith against I. Gevurtz & Sons, a corporation, to recover commissions for selling a hotel. The plaintiff recovered a judgment for $700 in the court below, and defendant appeals.

<p>From Clackamas: James U. Campbell, Judge.</p> <p>This is a suit by it. Edgar Beall against John W. Beall, Portland Railway Light and Power Company, a corporation, E. C. Ramsby, county recorder, Ella M. Hildebrand, Mary Frances Wolfe, Laura H. Hamner, Birdie J. Dudrow, Arthur L. Beall, Marvin E. Beall and Jasper M. Beall. From a decree in favor of plaintiff, the defendant, John W. Beall, appeals. The respondent files motion to dismiss the appeal.</p>

<p>Wills — Form of Instrument — Warranty Deed.</p> <p>1. A warranty deed in regular form and executed as sucb but placed in escrow to be delivered after the grantor’s death upon certain conditions cannot be treated as a will, especially where the testatrix expressly stated that she did not desire to make a will.</p> <p>[As to what instruments are testamentary, see note in 89 Am. St. Rep. 486.]</p> <p>Escrows — Delivery to Depositary — Time When Delivery Takes Effect.</p> <p>2. Where the owner of land, who had been living thereon with her son, executed a warranty deed for the express purpose of assuring him that he would become the owner thereof upon her death, in order that he might make needed repairs, and gave the deed to him to be placed in escrow until after her death and after he should make certain payments to her other children which equaled the consideration expressed in the deed, the deed was not delivered to the son at that time, but upon his tendering the payments after her death he became entitled thereto, and the delivery then related back to the date of the deed.</p> <p>Escrows — Relation Back of Delivery — Subsequent Death of Grantor.</p> <p>_ 3. The fact that the payments upon which the delivery was conditioned were not made until after the death of the grantor does not vitiate the conveyance.</p> <p>[As to the law of escrows, see note in 130 Am. St. Rep. 910.]</p>

<p>Execution — Restraining Sale on Execution — Possession.</p> <p>1. Section 516, L. O. L., provides that any person, claiming an interest in real property not in aetual possession of another, may maintain a suit against another who claims an interest or estate therein adverse to him to determine such conflicting or adverse claims, interest, or estate. Held, that, where complainant sued to restrain the sale of certain real property'levied on under a judgment against another, and it was conceded that plaintiff was the owner of the land in question, but the answer denied that it was included in the property levied on, complainant was entitled' to maintain the suit without averring possession of the premises.</p> <p>Boundaries — Plat—Contents—Evidence.</p> <p>2. Evidence held to warrant a finding that lot 12, in block 28 in the townsite of East Marshfield was included in property levied on as the property of another than complainant, and described by metes and bounds.</p>

<p>Carriers—Action for Overcharge—Evidence—Rates on Logs and Lumber.</p> <p>1. In an action against a railway for overcharges on shipments of lumber, the fact that defendant’s tariff classified logs as subject to the lumber rates was an admission by defendant proper to go to the jury as to the reasonableness of the rates for lumber; and, as a shipper of logs necessarily competes with a shipper of lumber, the rate for logs was also admissible.</p> <p>Pleading—Obj actions—Redundancy.</p> <p>2. Where evidence as to the rate on logs was admissible in determining the reasonableness of the rate on lumber, the allegation in a shipper’s action to recover overcharges on lumber that shippers of logs were charged a lesser rate was merely a pleading of evidence, and, redundancy not having been urged, the court below was justified in overruling the motion to strike out such .allegation as immaterial.</p> <p>Carriers—Action for Overcharges or Discrimination—Pleading.</p> <p>3. A complaint that plaintiff, who was compelled to ship his lumber over defendant’s road, was charged excessive and unreasonable rates and more than' those to competing shippers, sought only to recover money had and received in the form of freight overcharges and was not an action for damages for discrimination between shippers, and hence was not objectionable as stating two causes of action or joining them in one count.</p> <p>Pleading—Separate Counts.</p> <p>4. Where it did not appear upon the face of the complaint that a' shipper’s action to recover freight overcharges was brought upon various shipments of lumber on different bills of lading, the shipper was not required to state his cause of aetion in separate counts based upon eaeh shipment and bill of lading therefor, since in such action it is immaterial that the money demanded may possibly have accrued as the sum of various items received at different times.</p> <p>Corporations—Dissolution—Existence for Purpose of Bringing Action.</p> <p>5. Under the express provision of Section 6690, L. O. L., a corporation exists for five years after its dissolution for the purpose of winding up its affairs, including necessary litigation, the only restriction being that it shall not continue its corporate business.</p> <p>Corporations — Actions After Dissolution — Hatter in Abatement— Waiver.</p> <p>6. In an action by a corporation after dissolution to recover overcharges on freight shipments-over defendant road, its neglect to take any preliminary step necessary in the way of employing attorneys or directing someone to institute the action would have beeH properly urged by a plea in abatement but was waived by answering to the merits.</p> <p>Carriers — Action for Overcharges — Limitations.</p> <p>7. Act of February 20, 1885 (Laws 1885, p. 38), making it unlawful to charge or receive a different rate of freight from one person than from another for like service, and forbidding the charge of greater rates than those in foree oh January 1st of that year, and requiring it to adopt and post its tariffs on the first Monday of each January and July, construed as a maximum rate law prohibiting rebates, and by Section 7 making a road liable to a person injured in threefold damage recoverable by an action commenced within three years, did net refer to freight overcharges, so that the limitation did not apply to an aetion to recover such overcharges.</p> <p>Carriers — Action for Overcharges — Evidence—Reasonableness.</p> <p>8. Such statute giving no further effect to the posting of schedules than to require that subsequent charges should not exceed those posted, a road’s compliance therewith by posting rates of 10 cents per hundred pounds on lumber between certain points was not evidence that such rate was reasonable.</p> <p>Carriers — Action for Overcharges — Payment of Charge by Plaintiff.</p> <p>9. In an aetion to recover overcharges on shipments of lumber, where it appeared that a connecting line paid defendant’s freight bills, carried them as advanced charges, and collected them with its own at the final destinations in other states, and that the consignee deducted the total freight charges from the invoice price, it was not necessary that plaintiff first take an assignment of a cause of action from his consignee, since in the action for money had and received it is sufficient to' show that by any money transaction the defendant has received money or its equivalent whieh in equity and good conscience belongs to and should be paid to the plaintiff, and this is true although the plaintiff may never have had actual possession of the money.</p> <p>Carriers — Action for Overcharges — Voluntary Payment by Plaintiff.</p> <p>10'. Where plaintiff of necessity had to ship his lumber over defendant’s road, the fact that he contracted to pay an unreasonable rate and paid it without protest would not bar a recovery, since, where payments are made to a common earner for freight, the individual shipper does not deal at arm’s length with the carrier or occupy a situation similar to that of one voluntarily paying money with knowledge of all the circumstances.</p> <p>Carriers — Action for Freight Overcharges — Evidence.</p> <p>11. In a shipper’s action to recover overcharges on shipments of lumber, evidence as to rates paid by another shipper during the same time was admissible as being in the nature of an admission against the road’s interest; the inference being that, as it would not likely charge less than was reasonable in its dealings with sueh other shipper, the greater rate exacted from the plaintiff was unreasonable.</p> <p>Evidence — Self-serving Declarations — Railroad’s Tariff Schedules.</p> <p>12. In sueh case the subsequent filing of defendant’s tariff rates with the State Railway Commission would be in the nature of a self-serving declaration and inadmissible.</p> <p>Carriers — Action for Overcharges — Instructions.</p> <p>13. In such ease where the question was whether the charges were reasonable, and where both parties conceded that if the shipment was an interstate shipment the plaintiff could not recover because the question of reasonableness was exclusively for the Interstate Commerce Commission, a letter from defendant’s attorney to an Interstate Commerce Commissioner, embodying a clear statement of the contention that the shipment in question was an intrastate shipment, was properly adopted by the court in submitting the issue of interstate or intrastate shipments.</p> <p>Carriers — Action for Overcharges — Question for Jury — Interstate or Intrastate Shipment.</p> <p>14. In sueh case bills of lading for shipments of lumber, showing upon their face that they were interstate shipments, were not conclusive as to the character of the shipments; but, where there was evidence that notations were inserted in the bills of lading for the convenience of the shipper and that the shipment over defendant’s road was preparatory to an intended delivery to a nonresident consignee, the question whether the shipments were interstate or intrastate was for the jury.</p> <p>Commerce — Interstate or Intrastate Commerce.</p> <p>15. Where a shipper assembles his goods at a shipping point within a state and the transaction is there concluded in good faith, it is immaterial that he may contemplate a subsequent shipment into another state or that the intrastate shipment may be preparatory to interstate transportation; but where the owner of property, for the purpose of delivering it for sale in another state, intrusts it to a connecting line of a road managing a continuous carriage from one state to another, the shipment became interstate commerce on delivery to the first carrier, although its line was wholly within the state where the shipment originated, it being the relation sought to be established between the consignor and consignee that must govern the question.</p> <p>Carriers — Freight Charges — Reasonableness.</p> <p>16. A railroad is entitled to a fair return upon its capital judiciously and honestly expended and is entitled to meet competition; the question of competition as well as grades, character of shipment, the extent of responsibility, the wear and tear of equipment, and many other factors enter into the computation of what is a reasonable rate, so that defendant railroad had the right to fix a lower rate for a shorter haul outside the zone in which plaintiff’s shipment was made, if such lower rate was made to meet a possible competition by a wagon haul.</p> <p>Carriers — Freight Charges — Reasonableness.</p> <p>17. It is the relation between the carrier and the general public rather than the individual that is controlling on the question of reasonableness of charges, and what the individual can afford to pay is not the standard by which freight charges are to be determined.</p>

From Douglas: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice Ramsey. This is an action by J. W. Koop against one Cook and E. L. Giles to recover $500 and interest tliereon upon a promissory note. Tbe plaintiff recovered a judgment in tbe court below for tbe full amount of tbe note and costs against tbe defendant Giles. Tbe defendant Cook made no appearance.

<p>Eminent Domain — Judgment—Time for Entry.</p> <p>1. Section 6860, L. O. L., provides that condemnation proceedings shall proceed as an action at law, except as otherwise provided. Section 6865 provides that the property may be viewed, evidence heard, and the verdict of the jury given. Section 6866 provides that, upon payment into court of the damages assessed, judgment shall be entered appropriating the property. Section 6867 gives either party an appeal from the judgment entered therein. Eeld, that upon return of the verdict, the plaintiff is entitled to the entry of a judgment adjudicating the award as the amount to be paid before the property can be taken, though the amount awarded is not paid into court, so as to enable the plaintiff to appeal therefrom, and thereafter, when the damages have been paid, or paid into court, the judgment provided by section 6866 should be entered.</p> <p>Eminent Domain — Proceedings—Judgment—Necessity.</p> <p>2. A proceeding to condemn property for public use is an adversary proceeding and not an arbitration, and therefore all proceedings therein must be judicial, so that judicial confirmation of the award of the jury is necessary.</p> <p>Eminent Domain — Right to Discontinue Condemnation Proceedings.</p> <p>3. Proceedings to take property for public use may be abandoned at any time prior to the payment of the award.</p> <p>[As to the time at which a discontinuance of eminent domain proceedings may be ordered, see note in 86 Am. Dee. 199.]</p> <p>Eminent Domain — Measure of Compensation — Damage to Separate Tracts not Taken.</p> <p>4. In assessing damages for property taken for public use, where the property was divided into town lots, damages could only be assessed for lots taken in whole or in part, in the absence of a showing that the lots not taken were used, in connection with those taken, for one purpose.</p> <p>Eminent Domain — Measure of Compensation — Special Value for Use for Which Taken.</p> <p>5. In condemnation proceedings to secure a right of way for a railroad, the special value of the property for railroad purposes because of its location may be considered in assessing the damages, but not its value to the company condemning because of its necessity.</p> <p>Eminent Domain — Measure of Compensation — Separate Tracts.</p> <p>6. As applied to condemnation for a right of way through land platted as a town site, all the lots of which are owned by defendant, the rule that if different tracts are used together as -one property, or are adapted for such use, and are more valuable because of such adaptation, they should be treated as one property, with right to damages to the whole, otherwise as separate properties, with right to damages only for tracts taken in whole or in part, is logical and reasonable.</p> <p>Eminent Domain — Condemnation—Damages—Evidence.</p> <p>7. Where defendant owned the lots of a platted town site, and plaintiff condemned some of them for a railroad right of way, there was no competent evidence of damage to any of the others; it being merely said in general terms that the railroad will obstruct the streets and prevent access to them, but facts as to how and to what extent any lot would be damaged not being shown.</p> <p>Appeal and Error — Review—Questions of Fact.</p> <p>8. Admitting illegal evidence and instructing that it may be considered as an element of damage prevents application of Article VII, Section 3 of the Constitution, as amended (see Daws 1911, p. 7), providing that no fact tried by a jury shall be otherwise re-examined in any court unless it can affirmatively say there is no evidence to support the verdict.</p> <p>Eminent Domain — Condemnation—Costs on Appeal.</p> <p>9. Article I, Section 18, and Article XI, Section 4, of the Constitution, to the effect that private property shall not be taken for publie use without just compensation first assessed and tendered, entitles defendant in condemnation to his whole costs up to final adjudication of his damages, so that plaintiff’s costs on appeal, on which it obtains a reversal, are not taxable against defendant.</p>

From Jackson: Frank M. Calkins, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by Helen C. Dillon against A. Louise Beacom and William Beacom to recover damages for a breach of covenant in a deed. The trial court directed the verdict in favor of the plaintiff, and defendants appeal from the judgment rendered thereon.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Burnett. The plaintiff, Albert Field, brings this action to recover damages for injuries -which he suffered while in the employ of the defendant, Northwest Steel Company, a corporation, as an operator of a pneumatic riveting hammer.

From Multnomah: Robert Gr. Morrow, Judge. Department 1. Statement by Mr. Justice Ramsey. This is a suit in equity by Mary Bolster and Clair Bolster for the removal of a cloud and for the cancellation of two mortgages on lots 15 and 16 in block 14, in Willamette, City of Portland, Multnomah County, Oregon, and for a decree declaring the plaintiffs to be the owners in fee of said real premises, and barring all rights of the defendants therein, and for general relief.

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Me. Justice Mooee. This is an action by H. F. Latourette against Frank L. Miller to recover $750, the remainder of an alleged attorney’s fee for services performed by plaintiff’s assignors, on account of which $100 had been paid. The answer denies that $850 is a just fee, or that any sum in excess of $100, the amount paid, is reasonable.

From Multnomah: James W. Hamilton, Judge. Bn Banc. Statement by Mr. Justice Bakin. This is an action by the Northwestern Electric Company, a corporation, against George H. Zimmerman and Jessie Zimmerman, his wife, to condemn trees that would be a menace to a line of poles and wires to be used in conveying an electric current.

<p>Wills — Probate—Conclusiveness.</p> <p>1. Under Article VII, Section 12, of the Constitution, conferring probate jurisdiction on County Courts, Section 1141, L. O. L., providing that the proof of a will shall be taken by the County Court when the testator at or immediately before his death was an inhabitant of the county, and Section 756, providing that a judgment, decree, or order against a specific thing or in respect to the probate of a will, ete., is conclusive upon the title to the thing, the will, ox administration, etc., a decree of the County Court of a county, of which a testator was at the time of her death a resident and inhabitant, admitting her will to probate, eould not be attacked in a collateral proceeding to set aside a conveyance by the testator of land, which but for the conveyance would have passed under the residuary clause of the will.</p> <p>Cancellation of Instruments — Suits—By Whom Maintainable.</p> <p>2. A suit against the son of a deeedent could not be maintained by her other children to set aside a conveyance to him on the ground of undue influence, where a will of the decedent containing a residuary clause in favor of such son had been duly admitted to probate, sinee, if the deed was void, the devise invested him with the title to the land, and the other children were therefore strangers to the title.</p> <p>Deeds — -Validity—Undue Influence — Evidence.</p> <p>3. A deed from an aged mother to a son would not be set aside on evidence showing merely that he -had- lived- with and taken care of her for several years prior -to her death, and that he therefore had an opportunity to influence her in the disposition of her property, where there was no evidence that he ever employed this opportunity to swerve his mother in his own interest, while the evidence did show that in all transactions concerning the land she had the benefit of independent counsel, and gave her own directions about what she wished to do, since no presumption could be indulged against him merely because he had been faithful to his filial duty, and had gained her confidence and generosity, and while courts will carefully scrutinize transactions between near relatives, especially where a situation of trust and confidence exists, they cannot proceed on mere conjecture and vague possibilities.</p>

<p>Pleading — Complaint—Sufficiency.</p> <p>1. A demurrer is properly sustained to a complaint seeking to enjoin t'he collection of a special road tax, where it merely alleged that no legal notice of any ■meeting of taxpayers of the road district was published or given, that no lawful meeting was held, and that no valid or legal vote was taken in the district to authorize any special road tax or levy, such allegations being mere conclusions of law.</p> <p>Tender — Legal Tender — What Constitutes.</p> <p>2. To make it effectual, a tender must not be fettered with a condition, imposed by the one making it, that a discharge shall be executed releasing him from all demands.</p> <p>[As to the efficiency of tender and what amounts thereto, see notes in 77 Am. Dec. 470; 30 Am. St. Rep. 460.]</p>

<p>Master and Servant—Injuries to Servant—Actions—Complaint—Sufficiency.</p> <p>1. A complaint which alleged that defendant engaged plaintiff to assist in removing logs from the place where they were cut to the roadway by a cable operated by an engine, that a wire running from the engine to a point in the immediate vicinity of the workmen was used by one member of the logging crew to signal the engineer to start and stop, that it was the duty of the defendant to provide a safe and suitable wire for such signals and a competent man for sueh service, that defendant provided a rotten and improperly repaired wire, so that it was liable to catch on bushes, that defendant failed to employ a competent man, and whereby plaintiff was injured when a log struck a tree and broke it, owing to the inability of the logging crew to give signals because the defective wire caught on a bush, is sufficient, in the absence of a demurrer or any motion to compel election or to make more definite and certain, to charge the defendant with negligence in furnishing appliances and in employing an incompetent signalman.</p> <p>Master and Servant — Injuries to Servant — Actions — Assumption of Risk—Pleading—Sufficiency.</p> <p>2. In a personal injury action by a servant, where the complaint charged the master with negligence in failing to furnish a suitable signal wire to the engineer who was hauling the logs, or to engage a competent signalman, an answer alleging that plaintiff was employed as a hook-tender, and that he was an experienced man, and realized all the dangers of his employment, and assumed all the risks incident thereto, and that the injury complained of was the result of one of the ordinary risks, does not set up the assumption of the risk arising out of the master's negligence in failing to furnish a suitable signal wire.</p> <p>Master and Servant—Injuries to Servant—Actions—Assumption of Risk—Pleading.</p> <p>3. Assumption of risk, like contributory negligence, is an affirmative defense whieh must be pleaded and proven by the master, consequently, in a personal injury action by a servant, where the negligence relied upon was the failure of the master to furnish a suitable signal wire to be used in the master’s business, the servant, without having pleaded! the facts, may show that he informed the master’s foreman of the condition of the wire, and the foreman promised to supply a new one, but failed.</p> <p>[As to the doctrine of assumption of risk in the law of master and servant, see notes in 97 Am. St. Eep. 884; 98 Am. St. Eep. 289; and as to the effect of the employer’s promise to repair, see note in 119 Am. St. Rep. 434.]</p> <p>Master and Servant — Injuries to Servant — Actions—Jury Questions.</p> <p>4. In a personal injury action, where the negligence relied on was the master’s failure to furnish a suitable signal wire, and also his failure to furnish a competent signalman, the question of the signalman’s incompetence was improperly submitted to the jury, where there was no evidence of his negligence, the whole evidence showing that the aceident was caused by the defect in the signal wire.</p> <p>Master and Servant — Injuries to Servant — Safe Place to Work.</p> <p>' 5. An employer is required to use reasonable care and diligence to provide and maintain reasonably safe appliances, and to use like care and diligence in the selection of competent servants; but he is not an insurer in either ease.</p>

<p>Appeal and Error — Jurisdiction on Appeal — Injunction.</p> <p>1. Where, pending an appeal from a decree dismissing a suit to cancel a note and mortgage on the ground of fraud, the mortgagee instituted a suit to foreclose the mortgage, the Supreme Court would not, on the motion of appellant, restrain by 'injunction the prosecution of the foreclosure suit.</p> <p>Action — Illegal Transactions.</p> <p>2. An employer’s desire to prosecute criminally an employee for embezzling his property did not bar his recovery of the property or of its value, and henee he had a right to cash and a note and mortgage given by the employee for the amount embezzled.</p> <p>Mortgages — Validity—Duress—Illegal Consideration.</p> <p>3. Where an employee, after his arrest for embezzlement, asked that he be permitted to repay the amount embezzled, and there was no coercion, threats or vindictiveness on the part of the employer, nor promise, agreement, or understanding that the employee would not be prosecuted, a mortgage given for part of the amount embezzled was not obtained by duress and its consideration was not the employee’s release from the charge.</p> <p>Homestead — Transfer—Joinder by Wife in Mortgage.</p> <p>4. A homestead right may be waived by a wife by joining in a mortgage with her husband who owns the fee.</p> <p>Mortgages — V alidity — Fraud.</p> <p>5. A recital in a mortgage given by an employee for an amount embezzled by him that it was in consideration of a sum named to the mortgagors in hand paid, the receipt of which was thereby acknowledged, did not make the mortgagee a party to the mortgagor’s false representation to his wife to procure her signature thereto that it was given to secure a loan, since it was the usual form used in mortgages and might well be considered as referring to the employer’s money which the employee had received.</p> <p>Mortgages — Consideration—Prior Debt.</p> <p>6. A prior debt is a sufficient consideration to sustain a contract or mortgage.</p> <p>[Precedent debt as consideration for chattel mortgage is the subject of a note in Ann. Cas. 1912C, 79.]</p> <p>Mortgages — Validity—Fraud—Against Whom Available.</p> <p>7. An employer who accepted a mortgage from an employee for the amount embezzled by him and extended the time for repaying such amount for six years was a bona fide purchaser for value as against the employee’s wife, who was induced to join in the mortgage by her husband’s false representation that it was given to secure a loan, since a pre-existing debt is sufficient to constitute a mortgagee a purchaser for a valuable consideration if it has a new element of consideration imported into the transaction.</p>

<p>Marriage—Annulment—Process—“Summons”—“Complaint.”</p> <p>1. Under Section 1020, L. O. L., providing that, in any suit for the dissolution of a marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the plaintiff shall cause the summons to be served upon the district attorney, the court is without jurisdiction of a proceeding for the annulment of marriage, where the plaintiff, instead of serving a summons upon the district attorney, delivered a copy of the complaint, for the "complaint” is merely the means of conveying to the defendant the nature of the grievance laid .against him, while the “summons” is notice of the limitation of the time in which the charge is to be met by appropriate legal action.</p> <p>Marriage—Annulment—Parties.</p> <p>2. Under Section 1020, L. O. L., providing that, in a suit to have a marriage declared void, the state is to be deemed a party defendant, and the plaintiff shall serve summons upon the district attorney, the state is a neeessary party defendant, in the sense that it must be notified by service of summons, so that the district attorney may prevent fraud or collusion.</p> <p>ON REHEARING.</p> <p>Divorce — Effect — Right to Remarry — Marriage Within. Prohibited Time.</p> <p>3. Under Section 515, L. O. L., forbidding remarriage by the divorced person within the time allowed for an appeal, and Section 550, allowing an appeal to be taken within six months, a marriage contracted by a divorced woman less than six months after the decree was rendered is absolutely void, and will be annulled at the suit of the other party.</p> <p>Divorce — Effect—Right to Remarry — Marriage Within Prohibited Time.</p> <p>4. ■ The fact that the former husband, who was served by publication, defaulted in the divorce proceedings is immaterial, in a suit by the second husband to annul his marriage as void because contracted within six months of the decree of divorce in violation of Section 515, L. O. L., under Section 59, L. O. L., allowing the defendant against whom summons has been published to defend the action at any time within one year for good cause shown, and Section 1020, requiring the district attorney to appear on behalf of the state in divorce eases.</p>

From Multnomah: Calvin IT. Gantenbein, Judge. Department 2. Statement hy Mr. Justice McNary. This is a proceeding brought by Effie Barrenstecher against the Hof Brau, a corporation, and Fritz Strobel, to determine the legal right or wrong of an officer and director of a corporation to appropriate corporate funds in payment for services rendered.

<p>Contracts — Breach.—Meeting of Minds.</p> <p>1. Where defendants in figuring their bid on the plumbing work in a certain building from the plans and specifications failed to properly check up the number of lavatories, toilets, bathtubs, ete., and by this oversight miscalculated the cost, and made an unprofitable bid which was accepted, they were not entitled to release on the ground that there was no meeting of minds, but were liable for damages for a failure to perform.</p> <p>Contracts — Building Contracts — Bids.</p> <p>2. One soliciting bids for services to be performed in the construction of a building owes no duty to a bidder to warn him that his bid is so low that he may lose money in complying with its terms.</p> <p>Contracts — Building Contracts — Execution—Signature.</p> <p>3. A contract for the plumbing work in a certain building is complete when it has the signature of the party to be charged and the oral acceptance of the other.</p> <p>Principal and Agent — Contract — Signature by Agent — Authority— Question for Jury.</p> <p>4. Where a contract between plaintiff and defendant for the plumbing in a building under construction by plaintiff was prepared in plaintiff’s office, approved by his general manager and agent, and signed on plaintiff’s behalf by one who had signed other contracts ■between plaintiff and subcontractors, such facts were sufficient to entitle plaintiff to go to the jury as to the agent’s authority to sign.</p> <p>Principal and Agent — Contracts—Execution by Agent.</p> <p>5. Where a contract for the plumbing of a building which plaintiff was constructing was prepared in his office, approved by his general manager and agent, and signed on plaintiff’s behalf by F. as well as by defendant company, plaintiff could not 'have repudiated the contract for want of sufficient execution, even if his signature had been necessary.</p> <p>Names — Business Name.</p> <p>6. In the absence of statutory provisions to the contrary, a person may transact business under any name or style he sees fit, though it indicates that the business is operated by a firm, while it is in fact owned and controlled by one person.</p>

From Marion: William: Galloway, Judge. En Banc. Statement by Me. Justice Bean. This is a suit by tbe State of Oregon, on relation of Gale S. Hill, against Ben W. Olcott, Secretary of State, and Wilfred E» Farrell. From a decree in favor of defendants, the plaintiff appeals as to the defendant Olcott.

<p>Municipal Corporations — Indebtedness — Limitation — Charter Provisions.</p> <p>1. Portland Charter (Spec. Laws 1903, p. 3), Section 88, provides that no indebtedness shall be incurred for the acquisition of any public utility which, together with the existing bonded indebtedness of the city, shall exceed 7 per centum of the assessed value of the real and personal property in the city. An amendment to the charter adopted in 1910 created a department of public docks, consisting of a commission which was empowered to issue and dispose of dock bonds to a specified amount. An amendment adopted in May, 1913, provided that the council might issue and sell all bonds theretofore authorized and not sold under certain provisions of the charter, provided that the bonded indebtedness of the city 'should at no time exceed the amount authorized by Section 88 of the charter of 1903. Held, that dock bonds not issued prior to the adoption of the amendment of 1913 could not be issued if the indebtedness of the city would thereby be augmented beyond the limit fixed by Section 88, and hence a bidder for such bonds could not compel their issuance by mandamus without showing that the issuance of the bonds would not increase the debt beyond such limit.</p> <p>Municipal Corporations — Bonds—Validity.</p> <p>2. Municipal bonds, valid when executed, cannot be rendered void by an amendment to the charter, and so a declaration in a new charter that bonds issued under previous authorizations are valid obligations of the city is unnecessary.</p> <p>Municipal Corporations — Bonds—Charter—Construction.</p> <p>3. Portland Charter of 1913, Section 92, provides that’ no bonds other than those for public improvements, payable out of special assessments, shall be issued, unless approved by a vote of the people, but that this provision shall not apply to bonds heretofore authorized, while Section 93 declares that the council may issue and sell all additional bonds heretofore authorized and not sold under the provisions of the charter of 1903 as amended, and that dock bonds authorized under the amendment of November, 1910, to the amount of $2,500,000,. are valid obligations. Held, that the city council could, without submitting the matter to popular vote, sell unsold dock bonds to the amount authorized.</p> <p>Mandamus — Subjects of Mandamus — Ministerial Act.</p> <p>4. Where the charter of the city of Portland imposed upon the mayor and auditor the ministerial duty of executing bonds authorized by the city council, mandamus will issue to compel the execution of such bonds, the execution being a mere ministerial duty not involving discretion.</p> <p>Municipal Corporations — Bonds—Issuance—Power of Commission.</p> <p>5. Portland Charter of 1913, Section 1, provides that all powers and duties under the charter, of 1913 of the executive board, the water board, ¿.and other boards and commissions abolished by the charter, shall be vested in the council. Section 93 declares that no board or commission existing under the charter of 1903, exeept the civil service commission, should exist more than six months after the charter took effeet, until whieh time sueh boards or commissions should be subject to full regulation or abolition by the council which should have power to issue and sell all additional bonds theretofore authorized and not sold under Section 118 of the charter of 1903. The charter of 1903, Section 118, as amended in 1910, provided for the creation of a dock commission, and authorized it to issue bonds to the amount of $2,500,000 for the improvement of the city harbor. After the adoption of the charter of 1913, Section 93 was amended merely so as'to except the department of public docks from the general abolition of boards, though the ballot title of the amendment recited that it was an act to amend Section 93, as amended, of the charter, providing that the department of public docks shall not be abolished, but shall be retained with authority to exercise all the power originally conferred upon it. Held, that the amendment merely preserved the department of public docks from extinction, the provisions in the ballot title attempting to readopt the provisions of the charter of 1903, Section 118, not giving the dock commission authority to issue additional bondis, as that right was specifically granted by Section 1 of the charter of 1913 to the city council.</p> <p>Municipal Corporations — Bonds—Sales—Persons Entitled to Purchase —“May.”</p> <p>6. Under Portland charter of 1913, Section 113, providing that whenever bonds of the City 'of Portland are offered for sale, and there is a balance to the credit of any sinking fund or special fund not invested, said bonds may be awarded at par and aeerued interest to tbe city treasurer as an investment for such bonds, the common council may in its discretion award the bonds to a private purchaser whose bid is the same, the word “may” not being equivalent to “must,” but conferring upon the council the discretionary power of awarding the bonds, the two bids being the same.</p>

<p>Vendor and Purchaser — Contracts—Eights of Purchaser — Eights of Assignee.</p> <p>1. One who buys a purchaser’s rights in land under a contract for the sale thereof whieh stipulates for payment in installments on designated dates, and which makes time of the essence, and declares that a failure to make the payments shall work a forfeiture, only acquires the rights of the purchaser.</p> <p>Vendor and Purchaser — Contracts—Time oi the Essence.</p> <p>2. A contract for the purchase of real estate which stipulates for specified payments on designated dates, and whieh provides that, if the purchaser fails to make any of the payments at the time specified, his rights shall be forfeited, makes time of the essence, and a default in a payment called for works a forfeiture, unless the vendor waives the default.</p> <p>Vendor and Purchaser — Contracts—Forfeiture—Waiver.</p> <p>3. A vendor entitled to forfeit a contract for nonpayment of installments may waive his right either by express agreement or by acts affording reasonable inducement for the purchaser, in reliance thereon, to alter his course as to strict compliance either in advance of or after the prescribed time, and the conduct of the vendor operates as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting, the stipulation that time shall be of the essence being solely for his benefit.</p> <p>Vendor and Purchaser — Contracts—Waiver of Stipulation — Effect— Notice.</p> <p>4. A vendor who waives a stipulation that time for the payments of the price in installments is of the essence cannot insist on a forfeiture for nonpayment without giving notice to the purchaser and an opportunity to comply therewith.</p> <p>Vendor and Purchaser — Contracts of Sale — Default—Waiver.</p> <p>5. While a vendor’s waiver of a default in one payment of an installment will not operate as a waiver of a subsequent failure, the court must consider all the circumstances and the conduct of the parties in their dealings to determine whether the vendor has waived the stipulation that time is of the essence.</p> <p>Vendor and Purchaser — Contracts of Sale — Default—Waiver.</p> <p>6. Where a vendor in a contract calling for payments on designated dates, and making time of the essence, clearly indicated that he intended to be lenient in the matter of payments, and did not require a strict compliance in making some of the payments, and thereby the purchaser and his assignee believed that future payments on the exact dates named in the contract would not be required, and the conduct of the vendor was consistent only with a purpose on his part to regard the contract as subsisting after the first default, he waived his right to declare a forfeiture, and to avail himself of the time clause he must give the purchaser á reasonable and specific notice to comply with his agreement and make payment.</p>

<p>From Clackamas: James A. Eakin, Judge.</p> <p>En Banc. This is a suit by A. H. Schmidt and Lizzie Koch against R. B. Beatie, ¥m. H. Mattoon and N. Blair, constituting the County Court of Clackamas County, Oregon, and F. M. Townsend, road supervisor of Road District No. 50, of Clackamas County, Oregon. From a decree for the defendants, the plaintiffs appeal. Respondents file motion to affirm the decree rendered by the lower court.</p>

<p>Appeal and Error — Presumptions in Suppo'rt of Judgment.</p> <p>1. Where, in a suit to enforce an insurance contract, it appeared that the contract and the insurer’s by-laws were made exhibits to the complaint and .a part thereof, but they were omitted from the abstract and transcript, it would be presumed on defendant’s appeal that they supported the allegations of the complaint.</p> <p>Associations — Actions—Parties.</p> <p>2. In the absence of an enabling statute, a voluntary association has no legal existence and cannot be sued by its association' name, and suits must be brought against the persons composing it individually.</p> <p>[As to suits by or against unincorporated associations, see note in 59 Am. Dec. 711. As to the jurisdiction of equity over unincorporated associations, see note in 68 Am. St. Rep. 866.]</p> <p>Insurance — Actions on Policies — Form of Remedy.</p> <p>3. Under a policy issued by a voluntary insurance association which provided that, in case of loss, it would, through the ageney of its board of directors, levy an assessment for the purpose of paying sueh loss, a suit in equity eould be maintained to compel the officers of the association to levy sueh assessment for the purpose of paying a loss duly proved and adjusted.</p> <p>Insurance — Actions Against — Parties.</p> <p>4. In a suit against the officers of a voluntary insurance association to compel them to levy an assessment for the purpose of paying a loss, as provided by the insurance contract, the members of the association were not necessary parties, it not appearing that they refused or objected to the paying of the claim.</p> <p>Insurance — Actions—Extent of Relief.</p> <p>5. In a suit against the officers of a voluntary insurance association to compel them to levy an assessment for the purpose of paying a loss, as provided by the contract, in which the association by name was made a defendant, a judgment against it for the amount due could not be rendered, the association not being properly in court.</p>

<p>Mortgages — Sale—Correction of Errors — Notice.</p> <p>Where the description in a deeree for foreclosure, the notice of sale, and other subsequent proceedings, omitted a portion of the land which was eorreetly described in the mortgage and the complaint, the court, even if it could correct by a decree nunc pro time the error in the decree, could not, by such an order, correct the notice of sale, since the portion of the land omitted therefrom was never, in fact, advertised under subdivision 2, Section 237, L. O. L., providing that the notice of sale shall particularly describe the property.</p> <p>[As to causes and proceedings for the reformation of instruments, see note in 65 Am. St. Eep. 481. As to reformation on the ground of mistake, see note in 117 Am. St. Eep. 227.]</p>

<p>Work and Labor—Rendition of Services—Promise to Pay—Implied Contract.</p> <p>1. Where the person who has rendered and the person who has received services are not related by blood or marriage, a promise to pay will be implied, which, however, will be negatived if it appears that at the time the services were rendered there existed between them a family relationship the incidents of which are essentially similar to those ordinarily associated with such relationship when it exists between kinsfolk.</p> <p>Work and Labor—Services—Implied Promise to Pay—Persons in Loco Parentis.</p> <p>2. Where defendants stood in loco parentis to plaintiff and received her services for many years but failed to discharge their duties in that respect, resulting in mistreatment, neglect, and abuse of plaintiff, and failed to give her educational advantages according to their station in life, the family relation was no defense to an action on an implied contract to pay plaintiff for her services.</p> <p>Work and Labor—Services—Implied Contract—Family Relation—Performance of Duties—Question for Jury.</p> <p>3. Where defendants stood in loco parentis to plaintiff and claimed that their situation as such was a defense to an action for plaintiff’s services, whether they performed their duties to plaintiff or failed to do so and abused and neglected her so as to entitle her to recover for her services to them held for the jury.</p>

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Ramsey. This is an action by Eva L. Roane against the Union Pacific Life Insurance Company, a corporation, upon a promissory note which the plaintiff alleges was executed by the defendant for $2,750. A judgment of nonsuit was entered against the plaintiff in the court below. The plaintiff appeals. The facts appear in the opinion of the court.

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

From Multnomah: Robert Gr. Morrow, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by Lena Sigel against the Portland Railway, Light & Power Company, a corporation, for damages for personal injuries. The cause was tried before a jury. A verdict was rendered for $1,500 and a judgment entered thereon.

From Multnomah: Henry E. McGinn, Judge. Department 2. This is an action by Jesse Tamm against K. Sauset and McDermott & Carmody Contracting Company, a corporation, to recover for a personal injury, in which the jury assessed plaintiff’s damages at $6,000, and from the resulting judgment defendants appeal. The facts are set forth in tbe opinion.

Department 1. Original proceeding in Supreme Court. Statement by Mr. Chief Justice McBride. This is an original proceeding by E. E. C. Yon Klein, for a writ of mandamus directed to the Circuit Court for the county of Multnomah, department No. 1.

From Multnomah: Henry E. McGinn, Judge. Department 2. This is an action hy the Oregon Auto-Dispatch against W. A. Cadwell and Elizabeth M. Cadwell, as administrators of the estate of Cornelia Burkhart, deceased. Defendants move to dismiss plaintiff’s appeal.

<p>From Grant: Dalton Biggs, Judge.</p> <p>This is an action by M. E. De Lore against Joseph L. Smith. There was a judgment in favor of the defendant and plaintiff appeals. Respondent files motion to dismiss the appeal and affirm the judgment of the lower court.</p>

From Multnomah: Calvin IJ. Gantenbein, Judge. Department 2. Statement by Mr. Justice McNaby. This is an action by William Gynther against Brown & McCabe, a corporation, to recover damages for personal injuries sustained by plaintiff as a result of negligence alleged to have been occasioned by defendant’s servants.

From Multnomah: Gilbert W. Phelps, Judge. The plaintiff, Arthur Askatin, brought this action against the McInnis & Seed Company, a corporation, to recover damages for personal injuries. From a judgment in favor of plaintiff, defendant appeals.

From Multnomah.: Robert G. Morrow, Judge. Department 1. Statement by Mr. Justice Burnett. The Portland Public Market & Cold Storage Company, a corporation, alleging that G. D. Woodworth, in writing, subscribed and agreed to pay for 100 shares of its capital stock of the par value of $100 per share, brings this action against him on four counts to recover levied assessments.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by Francis Schulte against the Pacific Paper Company, a corporation, to recover for personal injuries.

From ‘Wallowa: John W. Knowles, Judge. En Banc. Statement by Mr. Justice Bean. Tbis is a suit by L. Coucb against Edgar Marvin, as sheriff and tax collector of Wallowa County, Oregon, and tbe City of Lostine to enjoin tbe collection of a tax levied by tbe City of Lostine upon certain lots and blocks of land owned by plaintiff, situated in tbe town of Evans, Wallowa County.

From Wallowa: John W. Knowles, Judge. En Banc. Statement by Mr. Justice Ramsey. This is a suit in equity in tbe nature of a cross-bill by Christian S. Haaland and Carl E. Háaland against M. P. Miller. The court below sustained a demurrer to the second amended complaint in the nature of a cross-bill, and, the plaintiffs not desiring to amend, a decree was rendered dismissing the plaintiffs’ complaint. The plaintiffs appeal.

From Wallowa: John W. Knowles, Judge. En Banc. Statement by Mr. Justice Eakin. This is an action by Charles H. Malzer, against Henry Schisler to recover a balance due on the purchase price of land. Plaintiff sold a certain tract of land to defendant for the consideration of $1,700, and by defendant’s direction conveyed the tract directly to Denny.

From Wallowa: John W. Knowles, Judge. En Bane. Statement by Mr. Justice Burnett. Christine Miller brings this suit against M. P. Miller, her husband, for the dissolution of a marriage contracted between them in the state of Minnesota, October 31, 1889.

<p>Adverse Possession — Land Grant.</p> <p>1. Land selected by a road company under a military road grant was approved by tbe Department of Interior, December 19, 1879, and' patent was issued therefor July 10, 1883. O. entered on the land in 1873, and during that year fenced it. Thereafter until his death, which occurred in 1893, he used and occupied it, and claimed title thereto adversely and exclusively as owner against defendant and his predecessors in interest, and after C.’s death his wife and son continued to occupy the premises as owners until 1908, when they conveyed their right to plaintiff. Held, that the statute of limitations commenced to run against the allottee from the date its selection under the grant was approved by the Interior Department, to wit, December 19, 1879, from which time the allottee could have maintained ejectment against C., and hence his subsequent possession for ten years vested in him and his heirs a fee simple title.</p> <p>Adverse Possession — Title by Adverse Possession — Rights of- Owner.</p> <p>2. One claiming title to land by adverse possession for ten years against all persons, but recognizing the superior title of the United States, and seeking in good faith to acquire that title, may assert such adverse possession as against any person claiming to be an owner under a prior grant.</p> <p>[As to adverse possession of land devoted to public use, see notes' in 76 Am. St. Rep. 479; 87 Am. St. Rep. 775; 92 Am. St. Rep. 844.]</p>

<p>Evidence—Presumption.</p> <p>1. It is presumed that an official duty has been performed, and hence that city commissioners required a contractor with the city to give a bond pursuant to the contract, and as contemplated by Section 6266, L. O. L.</p> <p>Contracts—Parties—Action by Third Persons.</p> <p>2. Where one receives a consideration from another to enter into an undertaking with such other, which is primarily for the benefit of a third person, such third person may maintain an action on the contract, so that one who contracted with a city for the construction of a pipe-line, and undertook to pay for the labor and neeessary supplies used in constructing the line, was primarily liable for such supplies, though furnished to a subcontractor, and could be sued for the price thereof by the person furnishing them, who was not a party to the contract.</p> <p>[As to contracts for the benefit of third persons, see notes in 9 Am. Dec. 155; 35 Am. St. Eep. 331; 71 Am. St. Eep. 178.]</p> <p>Principal and Agent—Contracts—Existence of Relation.</p> <p>3. Where defendant, who had a contract with a city for the construction of a pipe-line, had the work done by A, under an arrangement by which defendant paid the men employed by A to do the work, and paid the merchant who furnished supplies for the men while working, A was in substance a mere overseer or foreman for defendant, so as to make defendant, and not A, liable for such supplies.</p> <p>Money Received—Money Received to be Paid to Plaintiff.</p> <p>4. Where defendant, who contracted with a city to construct a pipe-line and employed A to do the work, deducted from the wages of the laborers employed by A a sufficient amount to pay for the supplies furnished by plaintiff in maintaining the men, defendant in equity and good conscience should pay plaintiff for such supplies, under the equitable doctrine of liability for money had and received.</p> <p>Contracts—Construction—“Material.”</p> <p>5. Supplies furnished by plaintiff for boarding and maintaining men engaged in constructing a pipe-line, pursuant to a contract for its construction by defendant for a city, were embraced within the terme of the original contract, which required defendant to furnish all “material” and do all the work required to construct the line.</p>

<p>From Lane: John S. Coke, Judge.</p> <p>Department 1. Statement by Mr. Justice Moore.</p> <p>This is a suit by the Booth-Kelly Lumber Company against the City of Eugene, a municipal corporation, and J. D. Matlock, mayor of the City of Eugene, and T. H. Garrett, J. E. Boach, W. S. Moon, B. B. Henderson, John M. Williams, F. J. Berger, A. W. Gilbert, and Sherman Heller, constituting the mayor and common council of the City of Eugene, to enjoin interference with the flow of a stated quantity of water in the channel of a non-navigable stream. The complaint alleges in effect: That the plaintiff, a corporation, has expended $240,000 in erecting at Coburg, Oregon, a mill in which are sawed logs that are cut from its lands situate on and’near the banks of the McKenzie Biver. That a ‘ ‘ waterway ’ ’ connects the mill site with the river, down which stream are floated during the summer sawlogs that are run into the “waterway” and there held until they are manufactured into lumber. That the McKenzie Biver is suitable for floating logs to market only in the summer, and in the winter that stream flows so rapidly that it is impossible safely to drive logs therein. That after the river had been used in driving logs in the summer for 30 years by the plaintiff and its predecessors, and after the plaintiff had secured about 1,000,000,000 feet of merchantable saw timber along the banks and within the watershed of that stream, the defendants, the City of Eugene and its officers, caused a canal to be dug from the McKenzie Biver, commencing at a point above Coburg, and diverted from that stream large quantities of water in order to operate a hydro-electric plant which is employed in pumping from the Willamette Biver water which is supplied to the inhabitants of that city, and which plant.is also used in generating electricity that is furnished to such citizens for illumination and power. That the diversion will in the summer so interfere with the flow of water in the channel of the river below the intake of the canal as to prevent the floating of logs to the plaintiff’s mills, to its irreparable injury, for the redress of which it has no plain, speedy or adequate remedy at law.</p> <p>A demurrer to the complaint on the ground that it did not state facts sufficient to justify equitable intervention having been sustained, the suit was dismissed and the plaintiff appeals. Submitted on briefs without argument under the proviso of rule 18 of the Supreme Court: 56 Or. 622 (117 Pac. xi).</p>

<p>Gifts — Mortis Causa — Evidence.</p> <p>1. In an action where plaintiff claimed two bank drafts as a gift causa mortis, evidence held to show that deceased intended to make the gift in question.</p> <p>Gifts — Mortis Causa — What Constitutes — “Gift Causa Mortis.”</p> <p>2. "Where deceased, after being practically told that he could not recover, handed plaintiff, his best friend, two unindorsed drafts, telling him that whatever happened they were for him, there was a complete gift causa mortis, whieh is a gift of personalty made by a person in the expectation of imminent death but to take effect only in event of the donor's death without previous revocation; an actual delivery of possession being necessary to perfect sueh a gift, which differs from a gift inter mvos only in the possibility of revocation.</p> <p>[As to gifts causa mortis, see note in 99 Am. St. Rep. 890. As to such gifts of notes and ehoses payable to order, see notes in 23 Am. Dec. 600; 25 Am. Dec. 389.]</p> <p>Bills and Notes — Gifts—Passage of Title — Indorsement.</p> <p>3. Upon a sale or gift, where a negotiable instrument is actually delivered, title passes without indorsement.</p> <p>Gifts — Causa Mortis.</p> <p>4. Where deceased delivered unto plaintiff two .unindorsed drafts as a gift causa mortis and thereafter wrote a letter to the bank in which he kept deposits, referring more to the deposits than to the drafts, his retention of that letter until after his death will not defeat the gift.</p> <p>Gifts — Causa Mortis — Contents.</p> <p>5. While gifts causa mortis should be closely scrutinized with a view to preventing fraud, yet where the intention of donor is clear, mere formal objections should not be allowed to defeat it.</p>

From Union: John W. Knowles, Judge. En Banc. Statement by Mr. Justice Ramsey. This is an action by tbe W. H. Stanchfield Warehouse Company against tbe Central Railroad of Oregon for the recovery of $349.80 damages for tbe nondelivery to tbe plaintiff of 424 sacks of Portland cement. Verdict and judgment were rendered for tbe defendant. Tbe plaintiff appeals.

From Multnomab: Calvin U. Gantenbein, Judge. Department 2. Statement by Mr. Justice Eakin. Tbis is an action by John A. Stroberg against Katherine Merrill to recover on five promissory notes of $1,000 each. The defendant pleads payment. A trial by jury was waived. Findings were made in defendant’s favor, and from a judgment thereon plaintiff appeals.

From Multnomah: Bobert Gr. Morrow, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by Olive Mae Schaedler against the Columbia Contract Company, a corporation, to recover damages for a personal injury. The facts are that the defendant, a corporation, is a dealer in sand, gravel and crushed rock, which material it transports on the Columbia and Willamette Bivers to Portland by barges that are towed by steamboats.

<p>Master and Servant — Injuries to Servant — Negligence—Unavoidable Accident — Evidence.</p> <p>1. Plaintiff, who had been employed on a building for several days, on Saturday afternoon left his tools in a corner on the second floor, there being then no partitions in that part of the building. When he returned on Monday partitions had been put in, leaving a hallway through which he was compelled to pass to get his tools. The rear of the hallway was not lighted, and he stepped into an open hole in the floor and fell to the floor below. Held,, that such facts were insufficient to justify an instruction on unavoidable accident, since if the hole was unguarded or insufficiently guarded defendant was negligent, and if it was sufficiently, guarded and plaintiff went over the guard and fell in consequence, or, if the aperture was unguarded, and the danger was so apparent that one in the exercise of ordinary care ought to have avoided it, plaintiff would be negligent, and could not recover.</p> <p>[As to duty of employer to furnish safe plaee to work, see note in 97 Am. St. Rep. 884. As to duty to provide safe place for employee to pass to and from work, see note in Ann. Cas. 1913E, 1033.]</p> <p>Trial — Request to Charge — Instructions Given.</p> <p>2. An instruction that the proof of the accident alone did not entitle plaintiff to recover without proof of negligence, and if it was an accident without any negligence, then plaintiff could not recover, sufficiently covered a request to charge that an accident might happen, and a person be injured, without fault or negligence of anyone, and if plaintiff’s injuries resulted from a pure accident, he could not recover, etc.</p> <p>Trial — Request to Charge — Duty to Give — Particular Language.</p> <p>3. It is not error to refuse to give an instruction in the language requested, where the same matter is given in other language in the general charge.</p> <p>Trial — Instructions—Issues.</p> <p>4. In an aetion for injuries, a request to charge that plaintiff could not recover for doctor’s fees or hospital bills was properly refused, where no claim was made in the complaint, and no testimony offered as to any damages by reason of physician fees or hospital expenses.</p>

<p>Adverse Possession — What Constitutes — Contract of Purchase.</p> <p>1. Possession under a pretended contract of purchase is not adverse.</p> <p>Dedication — Property Dedicated — Sale.</p> <p>' 2. Property dedicated to the public for a street may be vacated but cannot be sold by the board of trustees and recorder of the town to which it has been dedicated.</p> <p>Descent and Distribution — Transfers by Heirs — Authority—Extent.</p> <p>3. Where title to land in controversy was in certain heirs, some of whom were minors, authority given by the oldest heir alone, who was of age, to an agent to sell the property could affect only his own interest and did not bind the other-heirs.</p> <p>Executors and Administrators — Real Property — Possession — Right Against Tenant by Curtesy.</p> <p>4. An administrator of the estate of a wife was not entitled to possession of real property in which the surviving husband had a curtesy interest until his right of possession had been determined in a proceeding to which he was a party.</p>

<p>Joint Adventures — Settlement Between Partners — Findings—Evidence.</p> <p>Evidence held to require a finding that decedent and defendant had settled their joint adventure in the purchase of certain real property, and that in such settlement it was agreed that defendant should retain the property in controversy.</p>

<p>Electricity—Injuries—Contributory Negligence—Jury Question.</p> <p>1. In an action for personal injuries caused by contact of the top of plaintiff’s hay derrick with electric wires strung by defendant over a highway, whether plaintiff was guilty of contributory negligence in attempting to drive under the wires held a question for the jury.</p> <p>[As to liability of one maintaining electrie wires in highways for injuries to traveler coming in contact therewith, see notes in Ann. Cas. 1913D, 912.]</p> <p>Negligence—Contributory Negligence—Jury Question.</p> <p>2. Contributory negligence is a question of law only where the facts are undisputed, or where only one inference can be drawn from the evidence, but is a question for the jury if the evidence conflicts, or if it is undisputed, but different inferences may be drawn therefrom.</p> <p>Electricity—Injuries—Jury Question—Negligence.</p> <p>3. In an action for personal injuries by being shocked by a hay derrick which plaintiff was driving coming in contact with electric wires strung by defendant over a highway, whether defendant was guilty of negligence in allowing its wires to be maintained as low as they were held a jury question.</p> <p>[As to duties and liabilities of electric corporations, see note in 100 Am. St. Rep. 515.]</p> <p>Electricity — Care Required.</p> <p>4. Where derricks similar to that one which plaintiff was driving when it came in contact with defendant’s electric wires strung over the highway were common in the county, it was defendant’s duty to use care commensurate with the highly dangerous character of its business, to maintain its wires at highway crossings so as to minimize the danger to persons lawfully using the highway.</p>

<p>Counties — Employment of Detective — Ratification.</p> <p>1. Where an account of the deputy district attorney for compensation additional to his salary was one that the County Court might legally contract, it could ratify it when the services rendered were at the request of a member of the court.</p> <p>Counties — Powers of County Court — Employment of Detective.</p> <p>2. The County Court can employ a detective to make investigation looking to the prosecution of criminals.</p> <p>Counties — Action Against County Officers — Issues and Proof.</p> <p>3. In an action against county officers to compel the return of an amount paid to a deputy prosecuting officer, in addition to his salary, as compensation for investigation with a view to criminal prosecution, the faet that the statement and warrant pleaded designated it as compensation for extra services as district attorney would not exclude proof as to the authority and circumstances under which the services are rendered.</p>

En Banc. Original petition for mandamus. This is an original mandamus proceeding by the Salem Hospital, a corporation, against Ben W. Olcott, Secretary of State.

<p>Appeal and Error — Questions Reviewable.</p> <p>1. Under Section 550, L. O. L., providing a party may appeal from some specified part of a decree, and his notice of appeal shall specify the particular part, and Section 557, providing that the court may affirm, reverse or modify the decree in the respect mentioned in the notice, and not otherwise, certain defendants appealing only from the part of the decree in mortgage foreclosure holding their interests subject to the mortgage, plaintiff, not appealing, may not have reviewed the decision refusing him a personal judgment against such defendants.</p> <p>Landlord and Tenant — Mortgage of Leasehold — Constructive Notice of Conveyance by Mortgagor.</p> <p>2. The record of a deed of an undivided interest in a lease and in the lessee’s right therein is constructive notice to one thereafter taking from the lessee a mortgage of his interest in the leased property.</p> <p>Tenancy in Common — Mortgage by Tenant — Contract of Cotenant to Pay.</p> <p>3. Statement to B., pending suit by him, to foreclose a mortgage given him by T., lessee of property, on his interest in the leased property, by C., who before the giving of the mortgage had received from T., and recorded, a deed of a half interest in the leasehold, that he intended in good time to pay the mortgage, and that he was responsible for half the mortgage and note, and that he recognized the B. mortgage, does not constitute a contract, or create an obligation, but at most tends to prove some previous obligation.</p> <p>[As to right of tenant in common who pays mortgage to enforce it against cotenant, see note in Ann. Cas. 1912C, 1264.]</p> <p>Evidence — Conclusion of Witness.</p> <p>4. Statement of witness that another “recognized” a certain mortgage is a conclusion.</p> <p>Tenancy in Common — Mortgage by Tenant — Extension to Cotenant’s Interest.</p> <p>5. Even if a lessee’s assignees of a half interest in and under the lease had an intention to contribute to the payment of a loan, which, after the assignment, the lessee obtained, securing its payment by mortgage of his interest in the leased premises, and though they put aside funds for that purpose, this would not have the effect of extending the mortgage over their interest.</p> <p>Tenancy in Common — Mortgage by Tenant — Contract of Cotenant to Pay.</p> <p>6. Evidence of statements, made by a lessee’s assignees of a half interest in the lease, indicating that they felt bound in some way for part of a debt, by the lessee contracted, and secured on his interest in the lease, after he had made such assignment, is insufficient to prove the making of a contract by them to pay part of the debt.</p> <p>Contracts — Evidence to Establish.</p> <p>7. To establish a contract, the evidence must show when, where, and by whom it was made, and the terms thereof.</p> <p>Mortgages — Equitable Mortgage — Necessity of Agreement.</p> <p>8. To constitute even an equitable mortgage, there must be some kind of an agreement by the owner of the property that it shall be held as security for a debt.</p> <p>Tenancy in Common — Power to Mortgage.</p> <p>9. A tenant in common, as such, has no power to mortgage or convey the interest of his cotenant.</p> <p>Landlord and Tenant — Covenants of Lease — Effect on Lessee’s Assignee.</p> <p>10. While assignees of a lease are bound to the lessor by covenants of the lease, and so are bound by the covenant therein of the lessee to erect, on the premises, a building, such covenant, not even providing when the building should be erected, does not authorize the lessee, after assigning an interest in the lease, to borrow money with which to erect the building, and to mortgage the interest of the assignees to secure the loan.</p>

From Union: John W. Knowles, Judge. En Banc. This is an action by David Zimmerle against Frank P. Childers. From a judgment in favor of plaintiff, defendant appeals. The facts are fully set forth in the opinion by Mr. Justice Ramsey.

<p>Sodomy — Indictment—Sufficiency.</p> <p>1. Section 1439, h. O. Xj., provides that the manner of stating the act constituting the crime as stated in the appendix to the Criminal Code is sufficient, where the forms are applicable, and in other eases forms may be used as nearly similar as the nature of the case permits. The form of indictment given on page 1011 for charging rape is that defendant “forcibly ravished C. D., a woman of the age of 14 years.” The indictment alleged that accused did unlawfully “commit the crime against nature in, upon, and with one R. K., then and there being a male person; said crime against nature being too well understood and too disgusting to be herein more fully set forth.” Held, that the indictment was sufficient under the code, though it would not be sufficient at common law.</p> <p>Criminal Law — Evidence—Other Offenses.</p> <p>2. In a prosecution for committing the crime against nature with a male person, evidence that accused had committed the same offense with others than the person named in the indictment was not admissible.</p> <p>[As to the admissibility in criminal prosecutions of evidence of other offenses, see note in 105 Am. St. Rep. 976.]</p> <p>Courts — Stare Decisis.</p> <p>3. The doctrine of stare decisis should not be departed from, unless it appears, on subsequent examination of the question, that the former case was decided contrary to sound principle.</p> <p>[As to the doctrine of stare decisis, see notes in 27 Am. Dee. 628; 73 Am. St. Rep. 98.]</p> <p>Criminal Law — Trial—Instructions—Comment on Facts.</p> <p>4. Section 139, L. O. L., provides that in charging the jury the court shall state all matters of law which it thinks necessary for the jury’s information, but shall not present the facts of the ease. In a prosecution for the crime against nature the court stated that: “The court thinks that a man with normal sexual instincts is incapable of committing the crime, and that it is only a person of abnormal sexual sense that is capable of committing it. So if you are satisfied that one was possessed of this unnatural or abnormal sexual sense, you might infer that he had a motive.” Held, that the instruction was prejudicial error as being an expression of the court’s individual opinion on a matter of fact.</p> <p>Criminal Law — Province of Jury.</p> <p>5. The court should not express an opinion on any fact in the case in charging the jury; it being for the jury to determine what the facts are.</p> <p>Criminal Law — Quashing Indictment — Time of Motion — Motion in Supreme Court.</p> <p>6. A motion to quash the indictment and discharge accused should be filed in the trial court, and may not be made in the Supreme Court, Section 1625, L. O. L., providing that the judgment appealed from can be reviewed only as to questions of law appearing upon the transcript, and Supreme Court, rule 4 (56 Or. 615, 117 Pac. ix), requiring the appellant to set out in full in his first briefs the errors alleged.</p>

From Jackson: Frank M. Calkins, Judge. En Banc. Statement by Mr. Justice Moore. This is a suit by William Scott against L. P. Hubbard, Mabel Zimmer and Mendon F. Scbutt to rescind a contract.

<p>Parties — Defect—W aiver.</p> <p>1. Section 618, L. O. L., permits a defendant, on the return day of an alternative writ of mandamus, to show cause by demurrer or answer “in the same manner as to a complaint in an action at law.” Section 68 permits defendant to demur to the complaint when it appears on its face that plaintiff has no legal capacity to sue, or that there is a defect of parties plaintiff. Section 69 requires the demurrer to distinctly state the grounds of objection to the complaint, and Section 72 provides that, if no objection be taken by demurrer or answer, defendant is deemed to have waived the defect, except objections to jurisdiction, and that the complaint does not state a cause of action. Held, that a defect of parties plaintiff shown on the face of an alternative writ of mandamus was waived if not raised by demurrer, in analogy to the rule that such defects appearing from the face of the complaint are waived by failure to demur.</p> <p>Mandamus — Proceedings—Parties Plaintiff.</p> <p>2. While mandamus is a civil remedy, the rule prevailing in Oregon permits the proceeding to be prosecuted in the name of the state on relation, though eivil remedies which are not ordinary actions have more frequently been maintained by a private party as plaintiff.</p> <p>Statutes — General Laws.</p> <p>3. A statute which is complete in itself when enacted is a general law and effective throughout the state, though its relation in particular localities is made to depend on a majority vote of the qualified electors thereof.</p> <p>[As to what are general statutes, see note in 21 Am. St. Rep. 780.]</p> <p>Constitutional Law — Statutes—Completeness.</p> <p>4. Laws of 1913, page 625, Section 6, providing that no elector not registered as provided therein shall vote, provided that, in case the Supreme Court should hold the provisions for compulsory registration invalid, then, and in that case only, the elector may register with the judges of election as further provided, was not complete when enacted, as required by Article I, Section 21 of the Constitution, providing that no law shall be passed, the taking effect of which shall depend upon any authority, except as provided in the Constitution.</p> <p>Constitutional Law — Departments of Government — Commingling Functions.</p> <p>5. Laws of 1913, page 625, Section 6, providing that no elector not registered as provided herein shall vote, provided that, in case the Supreme Court should hold the provisions thereof invalid, then, and in that case only, he may register as further provided, contravened Article III, Section 1 of the Constitution, requiring the departments of government to be kept separate.</p> <p>Elections — Registration—Reasonableness of Regulations.</p> <p>6. In view of Laws of 1913, page 625, Section 5, providing that no elector not registered as provided therein shall be entitled to vote, Section 13, providing that, if the certificate of registration is lost or destroyed by a natural calamity, the elector shall establish that fact by the oath of two witnesses, is an unreasonable regulation of the right of suffrage.</p> <p>[As to validity of statute providing for registration of voters, see note in Ann. Cas. 1913B, 17.]</p> <p>Elections — Right of Suffrage — Regulation.</p> <p>7. While the legislature may enact a reasonable registration law to purify and protect the ballot, statutes which have the effect of preventing voters from exercising the right of suffrage conferred on them by Article II, Section 2 of the Constitution, as amended November 5, 1912 (Laws 1913, p. 7), prescribing the qualifications of electors, are invalid.</p> <p>Statutes — Repeal—Invalidity of Repealing Act.</p> <p>8. Where an act expressly repealing another, and providing a substitute therefor, is held invalid, the repealing clause is also invalid, unless it appears that the legislature would have enacted it even without providing a substitute for the act repealed.</p> <p>Elections — Registration—Repeal of Statute.</p> <p>9. From a consideration of tñeir provisions, it is held that the legislature would not have expressly repealed Sections 3447-3463, 3466, L. O. L., relating to the registration of voters, as it did by Section 22 of Laws of 1913, page 631, relating to compulsory registration, without providing a substitute therefor, had it known that the repealing act was invalid, so that the repealing clause will also be held invalid, leaving the repealed sections in force.</p>

From Multnomah.: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by W. L. Slotboom against the Simpson Lumber Company, a corporation, to recover money.

From Hood Eiver: William L. Beadshaw, Judge. Department 1. Statement by Mr. Justice Bamsey. Tbis is an action by E. H. Pilson against tbe Tip-Top Auto Company to recover judgment for injuries to an automobile caused by defendant’s alleged negligence as bailee. There was a judgment for plaintiff for $720.80, and defendant appeals.

From Clatsop: James A. Eakin, Judge. This is an action by the City of Astoria against the Astoria & Columbia River Railroad Company. The facts are concisely set forth in the opinion rendered for the court by Mr. Justice McNary.

<p>Exceptions, Bill of—Admission of Evidence—Sufficiency of Bill.</p> <p>L Under Section 171, L. O. L., as amended by Laws of 1913, page 650, providing that no particular form of exceptions shall be required, and the objection shall be stated with as much evidence or other matter as is necessary to explain it, but no more, provided that the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings at trial, including the exhibits, instructions and any other matter material to the decision of the appeal, a bill of exceptions to the admission of evidence should only contain so much of the evidence as is necessary to explain the nature of the objection, and should not be a practical transcript of all of the proceedings, unless necessary to determine the correctness of a ruling on motion for a nonsuit or for directed verdict at the close of the case.</p> <p>Words and Phrases—“Well.”</p> <p>2. A “well” consists of a pit sunk in the earth until a water-bearing stratum is reached from which the water will flow into the pit from which a supply of water can be obtained.</p> <p>Trial — Instructions—Province of Jury.</p> <p>3. The court instructed, in an action for services for digging a well, that “the plaintiff in this ease has shown himself to be an expert well-driller,” and, if you find that he entered into a contract with defendant to drill a well for $1.50 a foot, this agreement was not complied with unless he got a sufficient supply of water, “and, when he abandoned the work without having obtained such supply of water, the defendant had a right to rescind the contract and adopt other means for getting a supply of water,” and plaintiff cannot recover. Meld, that the instruction invaded the province of the jury in assuming that plaintiff abandoned the work without having obtained a water supply, and was also erroneous in charging that plaintiff had shown himself to be an expert driller.</p>

From Clackamas: James W. Campbell, Judge. This is a suit for divorce by Gerbardt R. Hubner against Charity M. Hubner, in which there was a decree for the plaintiff and defendant appeals. Reversed and suit dismissed for want of jurisdiction.

From Multnomah: Henry E. MoGtnn, Judge. This is a suit by Ferdinand Joplin against B. W. Nunnelly wherein a decree was rendered in favor of plaintiff and defendant appeals. The facts are fully set forth in the opinion.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by the Pacific Bridge Company, a corporation, against the Oregon Hassam Paving Company, a corporation, to recover money.

From Columbia: Jambs A. Eakin, Judge. Department 1. Statement by Mr. Justice Ramsey. This is an action by Harry Woods against I. G-. Wikstrom to recover the sum of $10,000 as damages for personal injuries. The plaintiff recovered a verdict and a judgment for $5,000. The defendant appeals and assigns various alleged errors.

From Clatsop: James U. Campbell, Judge. En Bane. Statement by Mr. Justice Bean. This is an action by F. L. Warren against tbe City of Astoria to recover damages caused by the negligent acts of tbe defendant city in tbe construction of a grade of Irving Avenue. Tbe cause was- tried before a jury, and a verdict rendered in favor of plaintiff, and defendant appeals.

From Josephine: Frank M. Calkins, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by Will C. Smith against W. G. Smith.