Volume 69 — Oregon Reports

From Columbia: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Ramsey. This is an action by L. .B. Eastman against tbe Jennings-McRae Logging Company, a corporation, to recover damages for tbe destruction of timber by fire, alleged to bave been caused by tbe negligence of tbe defendant. Tbe plaintiff recovered in tbe court below a verdict for $1,400, and a judgment for $2,800 (double tbe amount of tbe verdict). Tbe defendant appeals.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by Peter H. Edlefson against the Portland By., Light & Power Company, to recover damages for a personal injury. The defendant owns in the City of Portland a system of electric railway lines, two tracks of which are laid north and south along Union Avenue. The cars passing north go along the east track, and those moving in the opposite direction pass along the other track.

From Clatsop: Thomas A. McBride, Judge. Department 2. Statement by Mr. Justice Eakin. Tbis is a suit by T. K. Johnson and Margaret Johnson, against B. A. Seaborg, Seaborg Packing Company and Frank Olson. The facts are as follows: The plaintiffs were the owners of a certain island in the Columbia Biver, near Astoria, in Clatsop County, Oregon, known as Tenas Illihee, where the tide ebbs and flows.

From Douglas: James W. Hamilton, Judge. .This is a suit by John Hunter against the Clark & Henery Construction Company, a corporation, Edward Fitzgerald and J. W. House, and the City of Roseburg, a municipal corporation. The facts are fully set forth in the opinion of the court. Department 2.

From Multnomah: Henry E. McGtnn, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action by the West Coast Lumber Company, a corporation, against Fred J. Brady and Martin Denny. The facts are as follows: The plaintiff brought this action in the Justice’s Court for Portland district to recover for lumber alleged to have been sold and furnished to defendants at their special instance and request.

From Harney: William Smith, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action of ejectment in statutory form by Frank Cawlfield against D. A. Smyth and Claud TI. Smyth, in which the defendants admitted being in possession of the lands in dispute, but denied all other allegations of the complaint. A jury trial resulted in a verdict and judgment for the defendants, and the plaintiff appeals.

<p>From Marion: William Galloway, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>The plaintiff, Gr. W. Waterbury, brings this suit against the United Telephone Company and J. L. Calvert, its receiver, to recover upon two promissory notes, one for $4,500, and the other for $230, which he alleges were executed and delivered to him by the defendant corporation for money which he loaned to it, and to foreclose his lien upon $12,000, par value of the corporation’s bonds which he says were pledged to him as security for payment of the notes mentioned. The execution and delivery of the notes is traversed by the answer. Further defending, that pleading-states substantially that the notes were executed by the officer of the defendant without authority, and in addition thereto says that the corporation was organized by the son of the plaintiff, with an attorney and a third corporator, who, upon consummating the organization, elected themselves directors, and then issued to the son $10,000 in par value of the stock of the concern in payment for an option which he had secured upon a then existing telephone line, which option cost him $1 only. The substance of the defense on this point is that these transactions were instigated by the plaintiff in conjunction with his son and carried out as a scheme to defraud a corporation defendant and acquire its property for much less than its actual value.</p> <p>The allegations of the answer are traversed by the reply, which also alleges that the notes were not only regularly executed for money loaned to the corporation, but also that the acts of the officers, in issuing its commercial paper in question, were ratified by the directors and stockholders. From a decree dismissing the suit, the plaintiff appeals.</p>

On Motion to Dismiss. From Multnomah: John P. Kavanaugh, Judge. This is a suit by Charles Clough and Addie Clough, his wife, against V. J. Dawson and Eose Dawson, his wife, Hugh McGovern and Lenora D. Miller. There was a decree for plaintiffs and defendants appeal. Eespondents file motion to dismiss appeal. Statement by Mr. Justice Bean.

<p>Prom Clatsop: James A. Eakin, Judge.</p> <p>This is a suit by F. L. Parker against Clatsop County, Edwin C. Judd, county judge, Fred IT. Moore and John Frye, county commissioners of said county. The facts are set forth in the opinion of the court.</p>

<p>On Motion to Dismiss Appeal.</p> <p>From Multnomah: James U. Campbell, Judge.</p> <p>Statement by Mr. Chief Justice McBride.</p> <p>The defendant, John B. Goddard, was indicted for the crime of rape, and upon trial was convicted by a jury who recommended him to the mercy of the court. The court thereupon sentenced him to the penitentiary for a period of 20 years, and in the same judgment paroled him; the parole condition being as follows: ‘ ‘ The court taking into consideration the recommendation of the jury that the defendant be paroled, it is ordered that the sentence in this cause be suspended, and the defendant is allowed to go at large on parole, on conditions that he will not leave the jurisdiction of this court, and that he will not violate the laws of the United States or of this state or of any municipality in which he may live, and that he will at all times lead an honorable and upright life, and that he shall report in person of writing once a month to the presiding judge of this court his whereabouts with such other and additional information as may be desired or demanded by said judge.”</p> <p>Section 1589, L. O. L., is as follows: “If any prisoner when required shall fail to give such bail, bond, or security, or shall fail to observe all and every of the conditions and requirements of said parole and order of said court, or shall be again convicted of a felony, then said parole shall be by order of said court revoked with or without notice to such prisoner, and said prisoner shall be committed to the penitentiary to serve out the original sentence imposed in the same manner as though said parole had not been granted. The clerk shall deliver to the sheriff a certified copy of the sentence, together with a certificate that such person had been paroled and his parole has been terminated, and the 'sheriff shall, upon the receipt of such certified copy of sentence, immediately arrest such person and transport and deliver him or her to the warden of the penitentiary, and the time such person shall have been at large upon parole shall not be counted as part of the sentence, but the time of sentence shall be counted from the day of delivery to the warden of the penitentiary.”</p> <p>Nothing appears to indicate that the defendant requested a parole, nor is any request or acceptance provided for in Section 1586, L. O. L., which is as follows : “When any adult person who has not previously been convicted of a felony shall be convicted in any Circuit Court of this state of any felony or misdemeanor, the maximum punishment of which does not exceed ten years’ imprisonment in the penitentiary, or any minor person who has not previously been convicted of a felony shall be convicted in any Circuit Court of this state of any felony or misdemeanor, the maximum punishment of which does not exceed twenty years’ imprisonment in the penitentiary, and sentence shall have been pronounced, the court before whom the conviction shall have been had, if satisfied that such person, if permitted to go at large, would not again violate the law, may, in its discretion, by order of record, parole such person and permit him or her to go and remain at large under the supervision of the court, or under the supervision of any prisoners’ aid society now organized or hereafter to be organized under the laws of the State of Oregon, subject always, however, to the order of such court as such court may deem best until such parole shall be terminated as hereinafter provided, but such court shall have no power to parole any person after he or she has been delivered to the warden of the penitentiary or where it shall be made to appear to said court before such parole shall have been granted that such person has been before convicted of a felony. ’ ’</p> <p>The defendant appealed from the judgment, and a motion is now made to dismiss the appeal on the ground that by accepting the parole he has waived his right of appeal.</p> <p>The defendant, John B. Goddard, was convicted of statutory rape, and sentenced to imprisonment in the penitentiary for a term of from 3 to 20 years, and was paroled on the recommendation of the jury, and he appeals.</p>

From Multnomah: William L. Bradshaw, Judge. This is an action by the state on the relation of George S. Shepherd against E. M. Simpson. From a judgment for relator, he appeals. Motion to dismiss appeal denied, but appeal dismissed on court’s own motion.

From Multnomah: John P. Kavanaugh, Judge. This is a suit by Herman Matthes and Hans Jacob-sen against Bufus C. Holman, W. L. Lightner and D. V. Hart, as county commissioners of Multnomah County, Oregon. The facts are set forth in the opinion of the court. In Banc.

From 'Washington: James TJ. Campbell, Judge. In Banc. Statement by Me. Justice Eakin.

From Clackamas: James U. Campbell, Judge. In Banc. Statement by Mr. Justice Eakin. Held: and resulted in a vote in favor of prohibition. Various objections were urged in the complaint, and the Circuit Court having refused to grant the injunction, the prohibition order was issued by the County Court. By an amended complaint plaintiff seeks to have the said order canceled and set aside.

From Marion: William Galloway, Judge. This is a suit by the Salem Brewery Association, a corporation, against the City of Salem, a municipal corporation, and Charles F. Elgin, as city recorder of the City of Salem. From a decree in .favor of plaintiff, defendants appeal. The facts are set forth in the opinion of the court. In Banc.

<p>From Marion: William Galloway, Judge.</p> <p>This is a suit by John Stellman against W. M. Bushey, as county judge of Marion County, Oregon; J. T. Beckwith and W. H. Goulet, as county commissioners of said county. From a decree in favor of plaintiff, defendants appeal.</p> <p>In Banc.</p>

<p>Intoxicating Liquors — Local Option Election — Effect of Irregularities.</p> <p>A local option election resulting in majority of 59 in favor of prohibition is not vitiated by a showing that 79 qualified electors failed to vote, of whom 45 were prevented from voting by the wrongful action of the election board in refusing the votes of those who had not resided in the town for three months before the election; no explanation being given as to the reason for failure of 25 of the electors to vote.</p> <p>[As to power of election officers with respect to rejection of votes offered, see note in Ann. Cas. 1913D, 1245.]</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>This is an action by the Bank of Kenton, a corporation, against the Sun Dial Ranch, a corporation. The Circuit Court gave a judgment in favor of plaintiff, and the defendant, being dissatisfied therewith,' appeals.</p> <p>Department 2.</p>

From Marion: William Galloway, Judge. This is a suit by G. Q. Smith and E. P. Schott, partners doing business under the firm name and style of Smith & Schott, against W. M. Bushey, as county judge of Marion County, Oregon; J. T. Beckwith and W. H. Goulet, as county commissioners of said Marion County, constituting the County Court of said county, for the transaction of county business. From a decree for plaintiffs, defendants appeal. In Banc.

Prom Washington: James U. Campbell, Judge. Department 1. Statement by Mr. Chief Justice McBride.

From Multnomah.: George N. Davis, Judge. This is an action by F. H. Redsecker against N. J. Wade, in which plaintiff recovered judgment and defendant appeals. Respondent now moves to strike from the files appellant’s bill of exceptions. Department 1. Department 1. Statement by Mr. Justice Ramsey. This is an action to recover money alleged to be due upon a promissory note and upon certain accounts. The defendant set up several counterclaims.

From Lane: John S. Coke, Judge. Department 2. Statement by Mr. Justice Bean. This is an action for damages by W. C. Thienes against I. M. Francis for malicious prosecution. At the close of plaintiff’s evidence, the court rendered a judgment of nonsuit. Plaintiff appeals.

<p>Decided September 16, 1913.</p> <p>On Motion to Dismiss.</p> <p>(134 Pae. 1195.)</p> <p>From Lane: Lawrence T. Harris, Judge.</p> <p>Department 1. Statement by Mr. Justice Ramsey.</p> <p>This is a suit by W. O. Thienes against I. M. Francis and A. M. Brewer. The facts are as follows:</p> <p>I. M. Francis commenced an action at law in the Circuit Court of Lane County against W. C. Thienes to recover money. The defendant in that action, and plaintiff in this suit, upon filing an answer therein, also at the same time filed his complaint in equity, -in the nature of a cross-bill, setting up facts which he claimed required the interposition of a court of equity. The filing of the complaint in equity operated to stay the proceedings in the action at law under Section 390, L. O. L.</p> <p>The suit in equity, being at issue, was tried and a decree therein was rendered on March 11, 1913. This decree enjoined the defendant Francis from prosecuting said'action at law for the value of the oats, wheat, hay and grain mentioned in the original complaint in said action.</p> <p>I. M. Francis, the defendant herein, and plaintiff in said action, on March 27, 1913 (16 days after said decree was rendered), filed in said action at law his amended complaint. This amended complaint was so drawn as to conform to the decree referred to, supra. W. C. Thienes, the plaintiff in this suit and defendant in said action at law, filed his answer to said amended complaint on said 27th day of March, 1913, and the reply thereto was filed two days later. Said action was tried in the court below and a judgment therein, in favor of the plaintiff therein, for $383.75 was rendered by the court on April 8, 1913.</p> <p>On July 15,1913, the plaintiff in this suit served and filed his notice of appeal from said decree, rendered on March 11, 1913, and on July 15, 1913, his undertaking of said appeal was served and' filed according to law. The transcript for the appeal in this suit was filed in this court on July 26, 1913. The respondent, I. M. Francis, filed a motion in this court for a dismissal of said appeal. This motion was submitted on written briefs without oral argument September 8, 1913, under the proviso of Eule 18 of the Supreme Court: 56 Or. 622 (117 Pac. xi).</p> <p>This is a suit by W. C. Thienes against I. M. Francis and A. M. Brewer. The facts are set forth in the opinion of the court.</p> <p>Department 2.</p>

From Multnomah: Calvin U. Gantenbein, Judge. This is an action by Edward J. Fraley, administrator of the estate of J. H. Truby, deceased, against A. J. Hoban and John W. Taggart, partners under the name and style of Hoban & Taggart, defendants, and W. N. Jones, garnishee. There was a judgment in favor of plaintiff against the garnishee, and he appeals. The respondent now files motion to dismiss the appeal. Department 1. Statement by Mr. Justice Burnett.

Prom Polk: William Galloway, Judge. This is a suit by Jesse T. Irvine and others against Lizzy Irvine and others. Prom a decree for the plaintiffs, defendants appeal. The facts are set forth in the opinion of the court. Department 1.

From Multnomah: Frank M. Calkins, Judge. This is an action by A. H. Sandstrom against the Oregon-Washington Railroad & Navigation Company, for damages to real property. There was a jury trial and a verdict returned in favor of defendant, and from a judgment rendered thereon the plaintiff appeals. The facts appear in the opinion of the court. Department 1.

From Douglas: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Moore. This is a suit in equity by E. R. Hanan against S. A. Sanford and the First National Bank of Roseburg, a corporation, to enjoin the prosecution of an action at law.

From Tillamook: Percy E. Kelly, Judge. Department 1. Statement by Mr. Justice Burnett. The state water board refused the application of H. Schollmeyer, filed February 25, 1911, for permission to appropriate the waters of Bobs Creek, flowing through his premises in Tillamook County, as against the subsequent application of one, A. C. Anderson, filed March 9, 1911, to appropriate the same waters at a higher point of diversion.

<p>Appeal and Error—Review—Presumptions.</p> <p>1. In an action on an insurance policy, though the allegation of partnership of plaintiffs was denied in the answer, where the policy, loss and adjustment thereof were admitted, and the court rules without objection or exception, that the defendant had the burden of proof, it will be presumed in the Supreme Court, in support of a finding that plaintiffs were partners, that defendant’s counsel at the trial admitted that fact.</p> <p>Insurance—Forfeiture—Nonpayment of Assessment—Notice.</p> <p>2. Where a policy in a mutual company recites that the member has bound himself to pay assessments, and also that he has paid a fixed sum, but he has not in fact paid such sum, and the policy also sets out provisions of the constitution and by-laws of the company requiring the secretary to collect assessments and premiums, and providing that all losses shall be paid from the general fund maintained by assessments, that, if any assessment is not paid within 30 days after notice thereof is deposited in the postoffiee at Portland, the policy shall be void, and that the company will issue a paid-up policy upon the payment of a sum into an advance assessment fund, if the fixed sum referred to in the policy is an advance assessment which should be paid within 30 days after notice, the mailing of the notice is a condition precedent to avoiding the policy for nonpayment.</p> <p>[As to effect of provision in mutual insurance contract for forfeiture or suspension of policy on failure to pay dues, see note in 11 Ann. Cas. 340.]</p> <p>Insurance — Forfeiture—Nonpayment of Assessment — Notice.</p> <p>3. Under a provision of a by-law of a mutual insurance company that, if an assessment is not paid within 30 days after notice thereof is mailed, the policy shall be void, a mere declaration of the amount due on the policy, without notice that the policy would become void if the amount was not paid within 30 days, was not sufficient.</p> <p>Insurance — Forfeiture—Nonpayment of Assessment — Notice.</p> <p>4. Where the by-laws of a mutual insurance company 'require notice of assessments to be in writing, evidence of a parol notice is immaterial.</p> <p>Insurance — Forfeiture—Nonpayment of Assessment — Notice.</p> <p>5. Where it might reasonably be inferred that a sum mentioned in a policy was a premium rather than an advance assessment, the policy did not give the notice required by the by-laws of the company to avoid a policy for failure to pay the assessment within a given time.</p>

From Multnomah: Robert G. Morrow, Judge. This is an action by the Security Savings & Trust Company against Charles B. King. Plaintiff being dissatisfied with the judgment rendered in the lower court iu favor of defendant, prosecutes this appeal. The facts are set forth in the opinion of the court. Department 2.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by A. S. Ellis against H. M. Abbott and Nettie M. Abbott, Ms wife, to recover damages for a breach of warranty.

From Multnomah.; Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Burnett.

From Multnomah: Henry E. McGinn, Judge. This is an action by the Nob Hill Garage & Auto Co. against M. Barde and J. N. Barde. From a judgment in favor of plaintiff, but requiring each party to pay their own costs, plaintiff appeals. Department 2.

From Multnomah: William N. Gatens, Judge. This is a suit by Dennis O. Pillsbury, administrator of the estate of Catherine A. Cobum, deceased, against Frankie I. McGarry and W. R. McGarry. From an order denying a writ of assistance after the foreclosure of a mortgage, the plaintiff appeals. Department 1.

<p>Mechanics’ Liens — Notice—Description of Property.</p> <p>1. A description of premises, in a notice of a materialman’s lien, as “that certain buildings or improvements known as a dwelling-house and outbuildings,” on a lot of land definitely described, is sufficient, as a single lien on separate buildings is allowed when they are erected for a common purpose or connected use.</p> <p>[As to nature of improvement for which mechanic’s lien may exist, see note in Ann. Cas. 1912B, 5.]</p> <p>Mechanics’ Liens — Notice—Sufficiency.</p> <p>2. A notice of materialman’s lien for material furnished, which does not state of what the materials consisted other than by reference to invoices rendered to the contractor, and not to the owner, is not sufficient.</p>

From Multnomah: Henry E. McGtnn, Judge. This is an action by R. L. Sabin against the Owens Construction Company, a corporation, Thomas Owens and the American Surety Company of New York, a corporation. There was a judgment in the court below in favor of plaintiff, and defendant, the American Surety Company, appeals. Respondent now moves to dismiss the appeal. In Banc.

From Multnomah: Calvin TJ. Gantenbein, Judge. Department 1. Statement by Mr. Chief Justice McBride. The defendant, J. Parker, was convicted in the police court of the City of Portland of the crime of vagrancy, and appeals.

From Marion: Percy B. Kelly, Judge. Department 1. Statement by Mr. Justice Eamsey. This is a proceeding instituted by P. A. Livesley, contestant and respondent, to contest the election of J. E. Landon, contestee and appellant, to the office of mayor of the City of Woodburn. In the court below, judgment of ouster was rendered against the contestee. The contestee has brought the case to this court on an attempted appeal.

From Jackson: Frank M. Calkins, Judge. Statement by Mr. Justice Burnett. This is an action by tbe First Christian Church of Medford against C. Robb and W. A. Morse, copartners, and the Massachusetts Bonding & Insurance Company, in which judgment was rendered for plaintiff, and defendant, the Massachusetts Bonding & Insurance Company, appeals. At the trial on April 10, 1913, and during the production of testimony for the plaintiff, it took a voluntary nonsuit.

From Multnomah: James U. Campbell, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is a suit by Norma G. Seaman against the City of Portland, to quiet title to a triangular piece of land situated near the intersection of Ankeny, Sixth and Pine Streets in said city. The diagram inserted in appellant’s brief shows the relation of the triangular strip to the streets in question.

From Lake: Henry L. Benson, Judge. Department 2. Statement by Mr. Justice Eakin.

From Multnomah: William N. Gatens, Judge. In Banc. Statement by Mr. Justice Burnett. Claiming to be tbe assignee of a right to dower in certain real property, L. Y. Keady, as plaintiff, brings this suit against Hattie L. Martin and Abe Doran to secure an admeasurement of that estate and to recover for the use and occupation thereof. His claim was resisted principally upon the ground that he was es-topped by a former deed of his immediate grantor.

From Washington: James U. Campbell, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit by W. F. Dessinger against Phillip Gevurtz and Grace Lancaster to foreclose a mechanic’s lien. Defendants appeal from a decree in favor of plaintiff. The plaintiff entered into a contract to construct a five-room, story and a half, frame dwelling-house, on a certain lot owned by Grace Lancaster, for $1,250.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action by the Pacific Laundry Company, a corporation, against the Pacific Bridge Company, a corporation, and the City of Portland, to recover damages for an injury to plaintiff’s building and business, which plaintiff claims was the result of the negligent acts of defendants in the construction of a fill upon a street adjacent to plaintiff’s building.

From Multnomah: Henry E. McGinn, Judge. This is a suit by C. R. Templeton against W. E. Cook and Martha E. Cook, his wife, S. R. Wentworth, L. F. Templeton and Finley Morrison. From the decree rendered, the defendants, W. E. Cook and wife, appeal. The facts are set forth in the opinion of the court.

<p>Habeas Corpus — Grounds for Belief — Authority for Detention.</p> <p>1. Under Section 628, L. O. L., providing that persons restrained by virtue of the judgment or decree of a competent tribunal or by virtue of an execution on such judgment or decree shall not be allowed to prosecute the writ of habeas corpus, Section 641, providing that it shall be the duty of the court or judge forthwith to remand the party if it shall appear that he is legally detained in custody under an execution or decree of any competent court or of any execution on such judgment or deeree, and that the time during which he may be legally detained has not expired, and Section 643, providing that no court or judge on the return of a writ of habeas corpus can inquire into the legality or justice of any order, judgment, or process specified in Section 628, no relief may be had by habeas corpus unless the order or process on which the petitioner is detained is utterly void.</p> <p>[As to release of prisoner under habeas corpus after judgment and sentence, see note in 87 Am. St. Rep. 167. And see note in 55 Am. St. Rep. 267.]</p> <p>Habeas Corpus — Nature of Remedy — Sentence for Crime — “Indeterminate Sentence.”</p> <p>2. Under Section 1592, L. O. L., as amended by Laws of 1911, page 173, Section 7, providing that whenever any person is convicted of a crime for which the maximum punishment is a definite term of years in the penitentiary, the court shall, unless it impose other sentence than a sentence to the penitentiary, sentence him to imprisonment without limitation of time, stating the minimum and maximum penitentiary penalty, which sentence shall be known as an indeterminate sentence, and Section 1920, providing that assault and robbery, being armed with a dangerous weapon, shall be punished by imprisonment in the penitentiary for not less than ten years or during the natural life, provided that the minimum punishment shall be exercised only where in the judgment of the court leniency should be shown, and sentence for assault and robbery, being armed with a dangerous weapon, “for an indeterminate sentence as provided by law for said crime” is not void so as to entitle the accused to habeas corpus.</p> <p>Habeas Corpus — Nature and Bemedy — Authority for Detention.</p> <p>3. Where the court of general jurisdiction having authority over defendant and the subject matter of the charge against him imposes a punishment of the kind and at the place provided by law, though exacting the term limited by statute, he cannot be discharged on habeas corpus till he has performed so much of the sentence as the court had power to impose.</p>

<p>From Hood River: William L. Bradshaw, Judge.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>This is an action by William D. Wheelwright against Oscar Vanderbilt for damages for deceit The trial court sustained a demurrer to the complaint. The plaintiff appeals. The allegations of the complaint are in effect as follows: Plaintiff was a stockholder in the Stanley-Smith Lumber Company which had sold certain lands to the Vanderbilt Orchard Lands Company, of which defendant was a director and stockholder. Defendant conducted the negotiations and paid the purchase price to the lumber company on behalf of the land company. The directors of the latter corporation, other than the defendant, had told the plaintiff that the price paid for the land was $29,400, and the directors of the lumber company had told plaintiff that the sum received was $19,600. Plaintiff thereupon became suspicious of the honesty and good faith of the directors of the lumber company, and sought out the defendant, and questioned him in regard to the transaction, and he told plaintiff that the amount paid to the lumber company was $29,400. It is alleged that the statements made by the defendant to the plaintiff were false, and that the defendant knew that they were false when he made them; that the defendant himself either directly retained from the purchase price aforesaid the sum of $9,800, or was repaid that sum; that the representations made by defendant to plaintiff were a part of a scheme to conceal from defendant’s fellow stockholders and directors in the land company the fact that defendant had retained any money; that plaintiff believed and relied upon the statements made to him by defendant, and for the proper protection of his interests in the lumber company, under the advice of counsel, employed a public accountant to investigate and audit the books and records of the lumber company, which was done, with the assistance of attorneys; that he investigated certain other phases of the affairs of the lumber company, and necessarily incurred an expense of $1,452.50, which he seeks to recover from the defendant as damages.</p>

<p>Original proceeding in Supreme Court.</p> <p>. Statement by Mr. Justice Moore.</p> <p>This is an original application to this court by H. E. Albee, as mayor of Portland, to be released from custody. The facts set forth in the petition for a writ of habeas corpus. are, in effect, that two criminal complaints were filed in the District Court of Multnomah County, Oregon, for the district of Portland, charging the petitioner, H. E. Albee, as mayor of that city, who had authority over and control of firemen and policemen engaged therein, with violating the provisions of Chapter 61, General Laws of Oregon, 1913, in that he permitted and required a designated fireman and a specified policeman to labor in his several department more than eight hours in one day, when there was no emergency demanding the performance of such extra service. Based on these charges, warrants of arrest were issued, pursuant to which the defendant, A. “Weinberger, a constable, apprehended the petitioner, who instituted these proceedings for the purpose stated. The writ prayed for was issued, whereupon counsel for the respective parties stipulated that a statement of facts to which they had subscribed their names might be treated as the return of the constable to the written precept served upon him. A demurrer to such statement puts in issue the questions of law upon which the cause was argued and submitted. The statement of facts referred to substantially shows that, pursuant to the provisions of the charter of Portland, adopted May 3,1913, the petitioner, as mayor, was appointed commissioner of the department of public safety, which embraces the fire and police departments of that city. All officers and members of the fire department are subject to civil service rules, and, before entering upon a performance of the service required of them, they must take and subscribe to an oath faithfully to perform the duties devolving upon them. In cases of great conflagration other necessary temporary employees may be appointed to which the civil service rules are not applicable. Each fireman is granted a leave of absence of one day in eight, and is also given a vacation of 15 days each year, but all other times he must respond to fire-alarms when given. During every day he is allowed three hours for meals, in taking which he must never go more than 100 feet from his engine-house. In that building he occupies a bed, sleeping in his overshirt and underclothing, and leaving beside the couch his trousers and boots, which he rapidly dons when a proper alarm is sounded. At the fire station bathing facilities are supplied, but if a fireman take advantage thereof, except during the hours allowed for meals, or when off duty, he is liable to be disciplined in case he is unable to go with his engine to a fire. Such subjection to the rule, however, rarely occurs, since the fireman’s wearing apparel is so placed beside the bathtub when he occupies it that he can put on his garments and boots in time to respond to the call. Two watches of six hours each, commencing at 6 in the morning, are maintained during each period by two firemen, one of whom is engaged in active duty about the station, while the other is observing the telephone and signals for fire alarms. For the same purpose three watches of four hours each, beginning at 6 in the evening, are also kept, pending each division of time, by one fireman. At the end of each vigil the guard is relieved.</p> <p>In Portland there are 31 fire companies, three have 11 men each, one has 10, and the others have from 7 to 9, while a fire boat has 20, the total force being about 350, but, as each fireman is allowed one day off in 8, the working force probably does not exceed 260 firemen. Two or three men, depending upon the number in each company, go at a time to their meals, who returning, another like number take their repasts, and so on until all have been served. In companies having seven men, only one can be spared for each of the day watches, who must also maintain the fires at the station and keep the steam pressure in the engine up to the required standard.</p> <p>The man who drives a team which draws a fire engine or other mechanical or chemical appliance has the exclusive care of the horses kept for that purpose. He must feed them at 6 o’clock in the morning, and is allowed 2% hours in which to curry them and to clean their stalls. At 11 A. M. he must again feed the team. Every day, regardless of the condition of the weather, he is obliged to exercise the horses two hours under saddle, or one hour with fire apparatus, and when he returns, if the animals are wet, they must be blanketed. At 5 in the evening the horses must be fed and bedded for the night.</p> <p>It is the sole duty of the engineer to keep his engine in proper repair, and he is responsible for its efficiency. In maintaining its appearance, however, he has the assistance of a stoker to do the cleaning and polishing.</p> <p>The work about the station is performed by different members of the force. Thus one man has the care of the harness, and burnishes the brasswork about the building, another has charge of the dormitory, while another keeps the engine-house clean and sanitary.</p> <p>Though none of the firemen are engaged in a continuous eight hour service, all the labor referred to, except the care of the horses, and maintaining the watches, must be performed between 7 and 9 A. M. The hose and apparatus, however, are never allowed to become slovenly. Occasionally an. odd job about the station, when such temporary work becomes necessary, is apportioned to one or more of the firemen. Thus in returning from a fire the wet hose that has been used must be dried, other hose .substituted, and a new fire laid in the engine.</p> <p>In the electrical division of the fire department, linemen work eight hours, operators, eight hour shifts, and plumbers and shopmen, eight hours. At a recent fire in Portland 25 companies were constantly engaged on an average of 18 hours. The firemen are at all times liable to be called to extinguish a fire, and must respond to the demand.</p> <p>The statement of facts further shows the number of firemen engaged in operating the several engines, the sum of fire-alarms severally received from January 1, 1913, to November 30th of that year, and the time occupied in going to, remaining at, and returning from, fires, from which narration it appears that the average time occupied by each company in such service during the entire 11 months mentioned was 67 hours and 18 minutes.</p> <p>It further appears that the officers and members of the police department are appointed pursuant to examination of applicants who have been listed for that purpose. They are required to take and subscribe to an oath of office, and may remain in the service until they resign or are removed for cause. Any officer or member whose discharge was not in good faith for the purpose of improving the service may be reinstated after investigation by the Civil Service Commission. Members of the police department are required to be on duty in three shifts of eight hours each. They are allowed a leave of absence of two days each month, and are given an annual vacation of 15 days without diminution of salary. When off duty they are subject to emergency calls in event of riots or unusual disturbances, and cannot leave the city without the consent of the chief of police, except during the regular annual vacation. A policeman is a peace officer to whom a warrant of arrest may be directed, and when such a writ is executed he must obey its commands: Section 1745, L. O. L.</p>

<p>Customs and. Usages—Pleading—Necessity.</p> <p>1. One relying on a custom must plead it, and state that it was known to tbe party to be affeeted, or state facts authorizing the conclusion that it was of such general notoriety that 'the other party would be presumed to have knowledge of the usage.</p> <p>[As to the effect and proof of customs and usages, see note in 18 Am. Rep. 204.]</p> <p>Shipping—Navigation—Injuries—Evidence—Admissibility.</p> <p>2. Under Section 727, L. O. L., providing that evidence may be given of usage to explain the true character of a contract, but usage is never admissible except as a means of interpretation, where an action is brought under Section 5203, authorizing the recovery from- any person in the control of water craft and his employer for intentional or negligent navigation resulting in destruction or injury to the property of another, evidence that there was a general usage that fishermen delivering fish to any cannery were in the employ of the cannery is not admissible.</p> <p>Master and Servant—Existence of Relation.</p> <p>3. Where a packing company loaned its boat to a fisherman under an agreement that he should sell the fish caught to the company, the fisherman doing his work in his own way, he is not an employee of the company; the statute being penal in its nature, and therefore strictly construed.</p> <p>Master and Servant — Existence of Relation — “Independent Contractor.”</p> <p>4. An “independent contractor,” as distinguished from a mere employee, is one who carrying on an independent business, contracts to do a piece of work according to his own methods, and that being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.</p>

From Multnomah: Henry E. McGinn, Judge. This is an action by E. M. Ward against the Queen City Fire Insurance Company of Sioux Falls, South Dakota. The facts are fully set forth in the opinion of the court. Department 2.

From Marion: William Galloway, Judge. Tbis is a suit by George H. Colgan against tbe Farmers’ & Mechanics’ Bank, a corporation. Tbe facts are set forth in tbe opinion of tbe court. Department 1.

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>This is a suit by Charlotte Moffett Cartwright against James Peter Moffett and Charles K. Henry, to set aside a deed made by the plaintiff mother to her son, the defendant James P. Moffett, on the ground of fraud on his part in concealing from her the true legal effect of the document, and in stating to her that it was an instrument connected with a will prepared for her by her confidential attorney, which instrument the latter desired her to sign.</p> <p>The defendant traverses all the allegations of the complaint which impute to him any misconduct or fraud, and alleges affirmatively, in substance, that the plaintiff signed the deed knowingly and understanding^; that the matter had been discussed fully between the plaintiff and her son, the defendant Moffett, and, further answering, alleges that in pursuance of a written authority given to him by the plaintiff on February 7, 1910, empowering him to lease part of the property in contention for a period of 90 years, at not less than certain rates prescribed therein, he had entered into a preliminary contract with the defendant Henry, and had received $1,000 earnest-money from him to lease the property for 90 years at more advantageous terms than the minimum limited in his authority. The defendant Henry answered, in substance, that in pursuance of the authority given by plaintiff to the defendant Moffett, her son, he had entered into the preliminary agreement mentioned, without any notice whatever of the alleged infirmity of the deed from the plaintiff; had paid $1,000 as earnest-money, which had never been returned to him; had submitted to the plaintiff a lease embodying the terms of the preliminary agreement in detail; and that neither his earnest-money nor the lease had been returned to him, nor had the plaintiff made any objections to the terms of the proffered lease. He prayed that the plaintiff be compelled to specifically perform the agreement to lease the premises.</p> <p>The new matter in both answers was traversed by the reply. The Circuit Court, after hearing the parties at length rendered a decree upholding the deed attacked by the complaint, requiring the plaintiff to specifically perform the agreement to make a lease for 90 years to the defendant Henry, and declaring that the defendant Moffett holds the legal title to the property in dispute, one half in his own right in fee simple, and the other half in trust for his brother, another son of the plaintiff, all subject to the life estate of the plaintiff therein. The plaintiff appeals.</p>

From Crook: William L. Bradshaw, Judge. The defendant, Logan McPherson, was indicted, tried and convicted of the crime of assault with intent to commit rape, and alleging that the evidence was insufficient to convict, he appeals. Department 2.

<p>From. Clackamas: James U. Campbell, Judge.</p> <p>Department 2. Statement by Mr. Chiee Justice McBride.</p> <p>Tbe defendant, C. W. Carothers, was convicted of the crime of perjury, and appeals. The indictment charges, in substance, that the defendant, being duly sworn before the grand jury upon an investigation then being had as to one Clarence Miller, at any time within two years before June 20, 1913, had suffered and permitted the game commonly called poker to be played and carried on for money or checks and chips as representatives of value in a building in his possession, had falsely testified that he knew nothing of the playing of such games, and had never seen any such game played in said building at any time.</p>

From Jackson:' Frank M. Calkins, Judge. Statement by Mr. Chief Justice McBride. The defendant, Virgil Oden, was convicted of rape, committed by having carnal intercourse with a girl under the age of 14 years, and he appeals. The facts are stated in the opinion.

<p>Specific Performance—Contracts Enforceable—Parol Contracts—Part Performance.</p> <p>1. To maintain a suit for specific performance of a parol contract to purchase real estate, the plaintiff must have been plaeed in possession under the contract, and it is not sufficient that he continued a possession begun under a prior tenancy or other arrangement.</p> <p>Gifts—Inter Vivos—Parol Agreement to Make Gift.</p> <p>2. Where plaintiff, as tenant, was paying $60 a year as rental for a half interest in premises, an oral promise to convey the interest to him if he would pay the taxes and assessments, which amounted to less than the rental, was merely an oral agreement to make a gift.</p> <p>Specific Performance — Agreements Enforceable — Agreement to Make Gift.</p> <p>3. Though the doctrine of part performance applies to oral gifts as well as to contracts, specific performance of an agreement to make a gift of real estate will not be enforced unless possession was given to, and taken by, the donee, and valuable and permanent improvements made thereon.</p> <p>Specific Performance — Agreements Enforceable — Agreement to Make Gift.</p> <p>4. A parol agreement by defendant to convey a half interest in premises to plaintiff, if he would pay the taxes and assessments thereon, will not be specifically enforced, where the amount of taxes and assessments actually paid by plaintiff are less than a reasonable rental, and plaintiff makes no offer to repay defendant the amount of bonded street assessment paid by the latter after sueh agreement, and plaintiff has no valuable or permanent improvements . on the property.</p> <p>[As to specific performance of contract to make will, see note in Ann. Oas. 1914A, 399.]</p>

<p>From Multnomali: Henry E. McGinn, Judge.</p> <p>Department 2. Statement by Mr. Justice Eakin.</p> <p>This is an action by John F. Holmboe against W. H. H. Morgan and C. S. Howard, doing business as Howard Automobile Company, to recover for personal injuries. The accident occurred under the fol-lowing circumstances: Defendant Morgan was negotiating with defendant Howard, an automobile dealer, for the purchase of an auto, and having given an order for one to Dunbar, a salesman of Howard, Eobinson, another salesman of Howard, took the anto ont to demonstrate its efficiency and to teach Morgan how to operate it, and with Morgan and two ladies of his family proceeded in the direction of Linton. As they returned to the city, Morgan asked to run the machine a while in order that Robinson might instruct him, and on Washington Street, at the crossing of Tenth, the machine hit the plaintiff, resulting in the injuries complained of. The action originally was against Morgan, Howard and Robinson, jointly, to recover $40,866. How and when Robinson was eliminated from the case does not appear in the record. At the beginning of the trial the respective counsel stipulated as follows:</p> <p>“The parties hereto, by counsel, agree: (1) That plaintiff shall have judgment for $8,000 against the defendants, who shall be adjudged liable therefor. (2) That the question as to whether W. H. H. Morgan and C. S. Howard shall be held jointly or severally liable therefor shall be determined by the jury. (3) That the above cause shall not be postponed by reason of this stipulation.</p> <p>“Dated March 6,1913.”</p> <p>Thereupon the trial proceeded upon the issue as to whether defendants were jointly liable, or, if not, which one was liable. After the trial was completed and the jury instructed, it retired for consideration of the case and returned into court with a verdict against W. H. H. Morgan in the sum of $2,750 and against C. S. Howard for the sum of $5,250, which the court refused to receive, instructing the jury :</p> <p>“This verdict could not be received for the reason that, if Mr. Morgan was liable at all in this case, he was liable to the same extent as Mr. Howard; and, if Mr. Howard was liable at all, he was liable to the same extent as Mr. Morgan; that in cases of this kind, where one contributed to a wrong or an injury, no matter how many wrongs were done, there can be but one recovery. The verdict is not such a verdict as could he received in a court of law. Gentlemen of the jury: If these men are liable, they are liable as joint tort-feasors, as we say in law, hut we don’t allow an apportionment of the verdict. Tou cannot divide it up and say that one of the defendants is liable for two thirds of the damage and that the other defendant is liable for one third. If liable at all, either one of them alone is liable to the full extent, or they are both jointly liable to the full extent.”</p> <p>The jury again retired, and subsequently returned a verdict against the defendant Howard alone in the sum of $8,000. Judgment was entered thereon. Defendant Howard moved for a new trial, and also for judgment in his favor upon the pleadings, notwithstanding the verdict. Both motions were denied, and he appeals.</p>

<p>Habeas Corpus — Nature of Relief — Grounds for Detention.</p> <p>Members of the State Board of Control are entitled to relief by habeas corpus from arrest on the eharge of violating the eight hour, law in the employment of laborers at the state hospital and the penitentiary, where the record shows that the only person, charged to have been employed overtime, who was actually so employed other than in cases of emergency, aeted voluntarily and not under rules of the institution in working overtime, and his time averaged less than eight hours a day each month.</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 1. Statement by Mr. Justice Moore.</p> <p>This suit was instituted May 24, 1912, by Eobert Byrd, against J. Cooper, Alice Cooper, the Acme White Lead & Color Works, and others, to foreclose a laborer’s lien filed January 16, 1912. The notice of lien states generally that pursuant to an agreement with J. Cooper, who had contracted with Alice Cooper to erect for her a house on lot 5 in block 42, Beaumont, in the City of Portland, Oregon, of which real property she was the owner, the plaintiff Byrd built in such dwelling a fireplace, a chimney, and a mantel of the reasonable value of $71.50, no part of which sum has been paid; and that 30 days had not elapsed since the completion of the building. The complaint alleges that Alice Cooper is the owner of the premises described; that J. Cooper claims an estate therein; that the other defendants, naming them, claim some interests in the lot, but if either has any such interest, it is subordinate to plaintiff’s claim.</p> <p>The Acme White Lead & Color Works answered the complaint herein July 3, 1912, and at the same time filed a cross-complaint to foreclose its mechanic’s lien against the same property, making the Home Installment Company a party defendant, upon which corporation an original summons in the latter suit was served July 5, 1912. The cross-complaint charged generally that when the construction of such building was commenced, the defendant J. Cooper was the reputed owner of the lot described, bnt that the defendant the Home Installment Company was then the owner of the real property.</p> <p>An answer to the cross-complaint was filed by the Home Installment Company, which corporation having paid in full the claim of the Acme White Lead & Color Works, the'causes arising upon its answer and cross-complaint were dismissed November 16, 1912. Two days thereafter the plaintiff herein, having obtained leave to amend his original complaint so as to make the Home Installment Company a party defendant, filed such pleading, alleging therein that the corporation thus named was the owner of the real property. A demurrer to the amended complaint on the ground, inter alia, that this suit had not been commenced within the time limited therefor was overruled whereupon an answer was filed, alleging that on April 17, 1912, the Home Installment Company’s deed to the lot in question was duly recorded; that in consequence of Byrd’s failure to make such corporation a party until November 20,1912, his suit, as to it, was not commenced within the time prescribed, and for that reason he was not entitled to equitable relief.</p> <p>The reply to such answer admitted that the Home Installment Company’s deed to such realty was recorded as alleged. Based on these issues the cause was tried, resulting in a decree foreclosing the plaintiff’s lien, and directing a sale of the premises to satisfy the amount of his demand, and the Home Installment Company alone appeals.</p>

<p>From Multnomah.: Frank M. Calkins, Judge.</p> <p>This is an action by J. W. Farrell against R. J. Kirkwood to recover the amount due upon two promissory notes. From a judgment for the defendant, plaintiff appeals. The facts are set forth in the opinion of the court.</p> <p>Department 2.</p>

<p>Corporations — Dissolution.—Pleading.</p> <p>1. In an action against a surety company on the bond of a. corporation in condemnation proceedings, allegations of the answer that the corporation was dissolved by a proclamation of the Governor, and thereupon ceased to be a corporation, and was not thereafter reinstated, or authorized to act as a corporation, without showing the delinquency of the corporation authorizing the Governor to proclaim its dissolution, under Section 6717, L. O. L., providing that in each year the Secretary of State shall report to the Governor a list of all corporations which for two years or more have failed to furnish any statement, or to pay any license fee, and the Governor shall forthwith declare such corporations dissolved, are insufficient to show such dissolution.</p> <p>Principal and Surety — Discharge of Surety — Dissolution of Corporate Principal.</p> <p>2. Under Section 6708, L. O. L., providing that the right of a delinquent corporation to transact business shall be deemed in abeyance, and it shall not be permitted to maintain any suit, but the delinquency shall not operate to impair or delay the right of any other person, firm or corporation, the surety on the bond of a corporation cannot set up the faet that the corporation has been dissolved by proclamation of the Governor as a defense to the surety’s liability on the bond.</p> <p>[As to what operates as release of surety, see note in 28 Am. St. Rep. 691.]</p> <p>Eminent Domain — Proceedings to Assess Compensation — Parties.</p> <p>3. Under Article XI, Section 4, of the Constitution, providing that no person’s property shall be taken by any corporation under authority of law without compensation first made or secured as prescribed by law, and Section 6532, L. O. L., providing that, on giving the security therein provided, the plaintiff corporation in condemnation may, without waiting for trial, commence and prosecute the work of constructing and maintaining a ditch, canal or flume, where the plaintiff corporation has so taken possession, and the defendant dies pending the litigation, his personal representatives are properly substituted as parties rather than his heirs.</p> <p>[As to right to condemnation money as between heir or devisee and exeeutor or administrator, see note in Ann. Cas. 1912C, 595.]</p> <p>Principal and Surety — Discharge of Surety — Notice of Proceeding Against Principal.</p> <p>4. Under Section 157, L. O. L., providing that trial by jury may be waived by the parties in actions on contract, and with the assent of the court in other actions, by written consent in person, or by attorney, filed with the clerk, and Section 160, providing that the issues, whether of law or fact, may be referred on the written consent of the parties, a reference to arbitrators on a written stipulation of the parties in condemnation proceedings to determine the amount of damages does not release the surety of the plaintiff on its bond, though the surety was without knowledge of the arbitration proceedings.</p> <p>Principal and Surety — Discharge of Surety — Insolvency of Principal.</p> <p>5. The insolvency of the plaintiff corporation in condemnation proceedings does not affeet the liability of the surety on its bond, where such insolvency does not appear to be attributable to the adverse parties.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>This is an action by William Ballis and Bertha B. Ballis against the Northern Brewery Company, a corporation, in the nature of special assumpsit. From a judgment in favor of the defendant, plaintiffs appeal.</p> <p>Department 1.</p>

<p>Wills — Rights of Legatees and Devisees — Estoppel.</p> <p>1. Where a testator leaves to a mother and her two daughters all of his real and personal property, except $50, whieh he bequeaths to his daughter, the acceptance by his daughter of the sum bequeathed to her from the other legatees does not estop her from asserting the invalidity of the devise to the mother under Section 7335, L. O. L., declaring void any legacy, so far as it concerns any person who attests the will.</p> <p>Adverse Possession — Mutual Rights and Liabilities — Adverse Possession.</p> <p>2. The possession by an administrator of land devised to his wife and daughters, the devise to his wife being void, because she attested the will, does not become adverse as against an heir of testator, entitled to the share devised to the administrator’s wife, till the heir has notice that the cotenants for whom the administrator is acting, including his wife, claim to own the land absolutely.</p> <p>Tenancy in Common — Adverse Possession — Evidence—Weight and Sufficiency.</p> <p>3. Testimony that the acts giving notice to a cotenant of a claim of adverse title were done about 10 or 12 years ago, the witnesses being unable to state definitely, is not sufficient to sustain the claim of title by adverse possession.</p>

From Benton: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action of ejectment for 2.83 acres of land, by Gertrude C. Parker against Otto Wolf, to which land the plaintiff claims title by prescription. She alleges in November, 1911, the defendant ousted her and still withholds possession of the premises, to her damage. The answer denies all the allegations of the complaint.

<p>Evidence — Res Gestae — Declarations.</p> <p>1. While, as a general rule, the declarations of an agent cannot be shown as proof of Ms authority, where the payee of a note executed by an individual and indorsed by a corporation by its president refused to accept it in that condition, insisting that it be executed by the corporation as joint maker, the statement of the president, in response to an inquiry by the payee that he had authority to so execute it, together with the subsequent production of a note so executed, was admissible as part of the res gestae.</p> <p>Corporations — Representation by Officers — Evidence of Authority.</p> <p>2. Proof of the authority of an officer to act for a corporation need not be in the form of a resolution of the board of directors duly entered on the records, but such authority may be shown by an oral vote, or otherwise by parol, or by circumstantial evidence.</p> <p>Corporations — Representation by Officers — Authority.</p> <p>3. By-laws of a corporation, providing that the president shall sign all contracts on behalf of the corporation and shall have general charge over its business, and an entry in the corporate minutes reciting that on motion it was resolved that the president be authorized to borrow sueh sums as may be necessary, and to sign notes in the name of the corporation, showed the authority of the president to sign a note in the corporate name, by himself as president.</p> <p>[As to authority of officer to represent corporation, as inferred from manner in which he has been permitted to act, see note in Ann. Cas. 1913D, 646.]</p>

<p>Contracts — Actions—Admissibility of Evidence.</p> <p>1. In an action for the balance of price for labor in grading a street, the testimony of a witness for plaintiffs that they had about 15 teams and 20 men on the work was admissible.</p> <p>Contracts — Actions—Admissibility of Evidence.</p> <p>2. In an action for labor in grading streets, testimony by plaintiff as to the balance due him on the estimates made was competent.</p> <p>Evidence — Parol Evidence Affecting Writings — Admissibility.</p> <p>3. In an action for the balance of price due for labor in grading city streets, testimony as to how contracts are carried on not only in this case but generally as to roughing out, and when they do the next work, was properly excluded on the ground that the contract was not ambiguous, and the evidence was not admissible to construe it.</p> <p>[As to parol evidence to explain mercantile and other contracts, see notes in 6 Am. St. Rep. 678; 28 Am. St. Rep. 210.]</p> <p>Contracts — Actions—Admissibility of Evidence.</p> <p>4. In an aetion for the balance of price due for labor in grading streets, testimony of the engineer in charge of the work on cross-examination that the plaintiffs and other men were not aslied to do anything that they declined to do was admissible.</p> <p>. Appeal and Error — Harmless Error — Decision Favorable to Appellant.</p> <p>5. No error can be predicated on a decision favorable to tbe appellant on an objection to evidence.</p> <p>Appeal and Error — Harmless Error — Decision Favorable to Appellant.</p> <p>6. The defendant cannot complain on appeal if the decision of the jury against him was not as much in amount as it might have been.</p> <p>Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>7. Article VII, Section 3, of the Constitution providing that the right of trial by jury shall be preserved, that no fact tried by a jury shall be otherwise re-examined unless the court can affirmatively say there is no evidence to support the verdict, that, till otherwise provided by law, either party to an appeal may have attached to the bill of exceptions the whole testimony, and that if the Supreme Court can determine what judgment should have been rendered it shall direct such judgment, does not authorize the Supreme Court, where the evidence supports the verdict, to retry the case and reach a conclusion of fact different from the verdict.</p>

From Josephine: Frank M. Calkins, Judge. This is an action by Thomas Curtis Hills against Dr. H. M. Shaw for malpractice. From a judgment in favor of plaintiff for $6,000, the defendant appeals. Reversed and remanded, with directions to enter a judgment of nonsuit. Department 1.

<p>Corporations—“Transaction of Business Within State” by Foreign Corporation.</p> <p>Taking orders through a traveling salesman within the state subject to acceptance by a corporation at its home office without the state does not constitute the “transaction of business within the state,” within Title 44, L.. O. L., and Laws of 1913, page 772, prescribing the conditions precedent to the doing of business in the state by foreign corporations.</p> <p>[As to what constitutes doing business within the state by foreign corporations, see note in Ann. Cas. 1913E, 1154.]</p>

From Jackson: Frank M. Calkins, Judge. Department 2. Statement Per Curiam. This is an application by Eliza J. Lewis against George E. Chamberlain and all whom it may concern to register the title to lots numbered 6, 7, and 8 in block 1 of Cottage Addition to the City of Medford. From an order denying a motion to set aside a decree for registration of title in defendant Chamberlain, applicant appeals.

From Marion: William Galloway, Judge. Statement Per Curiam. This is a suit by C. M. Smith against J. L. Cain to ascertain the dividing line between the lands of the plaintiff and of the defendant, and to have the boundary, as determined by the court, marked by proper monuments upon the ground.

<p>From Tillamook: William Galloway, Judge.</p> <p>This is an action of trover by Dan Nicklas against S. L. Rathburn to recover $242.35 for the conversion of personal property. There was a judgment in the lower court in favor of plaintiff for $242 and the defendant appeals.</p> <p>In Banc.</p>

From Hood River: William L. Bradshaw, Judge. Decided July 22, 1913. On Motion to Dismiss. (133 Pac. 1190.) This is a suit by Mary Coburu Allen and Wilbur B. Allen against F. W. Angus and Grace E. Angus for the specific performance of a contract. From a decree in favor of plaintiffs, defendants appeal. Respondents file motion to dismiss appeal.

From Multnomah: Henry E. McGinn, Judge. This is an action by the Riverside Portland Cement Company against Frank Masson. There was a judgment in favor of plaintiff and the defendant being dissatisfied, prosecutes this appeal. The facts brought out are set forth in the opinion of the court. Department 1.

From Hood River: William L. Bradshaw, Judge. This is an action by Elmer Perry Adams against Dr. F. C. Brosius. There was a demurrer interposed challenging the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and being sustained, a judgment was rendered for the defendant, and plaintiff appeals. Department 2.

<p>Constitutional Law—“Police Power.”</p> <p>1. Poliee power is that inherent sovereignty which it is the right and duty of the government or its agents to exercise, whenever public policy demands, for the benefit of society at large, regulations to guard its morals, safety, health, order or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires.</p> <p>[As to what is meant by “poliee power,” see note in 78 Am. St. Rep. 236.]</p> <p>Master and Servant—Regulation of Employment—Police Power.</p> <p>2. Laws of 1913, page 92, providing for an Industrial Welfare Commission to provide for the fixing of minimum wages and maximum hours of labor for women and minor workers, since it reasonably tends to accomplish the purpose intended, is within the poliee power of the state.</p> <p>[As to police power and the Fourteenth Amendment, see notes in 25 Am. St. Rep. 882, 888.]</p> <p>Master and Servant—Equal Protection of Laws—Regulation or Employment.</p> <p>3. Though an order of the Industrial Welfare Commission created by Laws of 1913, page 92, fixes maximum hours and minimum wages of women for the City of Portland only, the law is state-wide, and does not give an employer in Portland unequal protection of the law.</p> <p>[As to equal protection of laws as a constitutional requirement, see note in 25 Am. St. Rep. 773.]</p> <p>Constitutional Law—Class Legislation—Privileges and Immunities of Citizens.</p> <p>4. That an order of the Industrial Welfare Commission fixing minimum wages and maximum houTs of labor for women, as authorized by Laws of 1913, page 92, applies only to Portland does not grant to others privileges denied to an employer in Portland in contravention of Article I, Section 20 of the Constitution.</p> <p>[As to constitutionality of statutes relating to wages of employees, see note in 139 Am. St. Rep. 863.]</p> <p>Constitutional Law — Distribution of Governmental Power — Delegation of Legislative Power.</p> <p>5. Laws of 1913, page 92, authorizing the Industrial Welfare Commission to fix minimum wages and maximum hours of labor for women and minor workers after conference with representatives of employers and employees, does not delegate legislative power to the commission.</p> <p>Constitutional Law — Due Process of Law — Regulation of Employment.</p> <p>6. That Laws of 1913, page 92, authorizing the Industrial Welfare Commission to fix minimum wages and maximum hours of labor for women and minor workers, makes the findings of the commission on all questions of fact conclusive is not a_deprivation of due process of law; a hearing being required' for the promulgation of the commission’s orders.</p> <p>[As to the significance of due process of law, see notes in 24 Am. Dee. 538; 20 Am. St. Rep. 554.]</p>

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Burnett.

From. Klamath: Henry L. Benson, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action by M. M. Obenchain against the Ransome-Crummey Company, a corporation, to recover for services rendered and for money paid out on behalf of defendant at its request. The causes of action are separately stated.

From Clackamas: James U. Campbell, Judge. Department 2. Statement by Me. Chiee Justice McBeide. This is an action of ejectment by Jessie E. Crim against John L. Crim to recover three lots in Oregon Homes, a platted tract, in Clackamas County.

<p>Prom Yambill: Percy R. Kelly, Judge.</p> <p>Department 2. Statement by Mr. Justice Moore.</p> <p>Tbis is a suit by Hervey Hoskins against W. G. Dwight to determine an adverse interest in real property. The plaintiff asserts title to the northeast quarter, section 6, in township 3 south of range 5 west of the Willamette meridian in Yamhill County, Oregon, by a sheriff’s deed executed to him pursuant to a sale of the premises under a decree of the Circuit Court of the State of Oregon for that county, foreclosing an alleged lien for taxes undertaken to be imposed upon such land during the time it was owned by Alson G. Byers. The defendant claims title to the same premises by a deed executed to him by Byers subsequent to the delivery of the sheriff’s original deed to Hoskins. The cause, being at issue, was tried, and from the evidence taken which is wholly documentary, the court found that the sheriff’s deed was void, and thereupon decreed that the defendant was the owner in fee of the real property, that the plaintiff had no estate or interest therein, that a sum of money deposited' by the defendant with the clerk as the amount of taxes paid by Hoskins, including the interest thereon and costs, be turned over to him; and he appeals.</p>

From Multnomah: William N. Gatens, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by Minnie Hough, by Emilie Toedtemeir, her guardian ad litem, against Herman Iderhoff. The plaintiff is the foster child of Emilie Toedtemeir, who is the guardian ad litem herein. She was born March, 1897, and at the time of the assault complained of she was 13 years and 7 months old.

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>This is a suit by O. F. Cooke against the City of Portland. The facts are as follows:</p> <p>In Multnomah County, at the times mentioned in the pleadings herein, there were two rural election precincts known as Sylvan No. 178 and Mount Zion No. 179. On August 19, 1910, a petition was presented to the common council of the City of Portland said to be signed by 15 per cent of the qualified voters residing in a part, but not in the whole, of each of those precincts, asking that those portions of their territory named be annexed to the municipality of the City of Portland. On September 14,1910, the council of the City of Portland passed a resolution whereby it resolved:</p> <p>‘ ‘ That the matter of the annexation of the territory described in the foregoing petition be and hereby is submitted to the qualified legal voters residing in the territory so designated, at the next general election held therein, said election to be held on the 8th day of November, .1910, for their adoption or rejection; and each elector who shall vote upon said proposed amendment shall vote yes, or no, in answer to the question: ‘Shall additional territory in sections 5, 6, 7, and 8, T. 1 S., R. 1 E. of W. M., be annexed to' the City of Portland, Multnomah County, Oregon, and shall Section 12 of the charter of the City of Portland be amended accordingly?’ ”</p> <p>The question was not in any manner submitted to the legal voters of the city. No notice of the submission of the question was given to the voters in the outlying territory involved. The only notice of the election was the one issued by the county clerk to the effect that a general election would be held in the precincts for state, district, county and precinct officers, and that 32 public measures would be voted upon, without mentioning the nature of those measures, or otherwise describing them. The ballot used at the election containing the names of candidates, a sample of which is in evidence, had noted thereon 32 public measures for the consideration of the electors; but none of them in any way affected the matter in suit here. At the election there were in the hands of the judges of election the regular ballot provided by the county authorities for the general state elections held on that date, but they contained nothing whatever alluding to the acquisition of new territory by the City of Portland. Besides these, there were smaller ballots,» presumably furnished by the city authorities, wb ch contained only the question of the annexation mf ioned. No data besides the description on this las'* med ballot were placed in the hands of the judges oi election whereby they could determine whether or not the electors offering to vote resided in the, territory to be annexed. At the election all voters presenting themselves were furnished with both ballots, and the votes of all on the question were received indiscriminately without reference to whether the voter resided within or without the proposed addition.</p> <p>The plaintiff, a resident and taxpayer within the territory in question, appearing for himself and 29 other like individuals, alleged in detail in his complaint that of which the foregoing is a summary; stated that the bonded indebtedness of the City of Portland and the yearly expenses of maintaining that municipality are very great, and that, if the annexation were made, he and the others.in like situation would be greatly damaged, in that they would be compelled to pay additional taxes without corresponding benefit; and prayed the court to restrain the officials of the city from admitting the proposed territory within its limits, and from amending the section of the charter describing the boundary, that the election mentioned be declared null and void, and for general relief. Without alleging new matter, the answer traverses the complaint in important particulars. From a decree dismissing the suit the plaintiff has appealed.</p>

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by L. P. Hewitt against Crayton S. Andrews and Lillie M. Andrews to recover on a promissory note executed by tbe defendants December 28, 1911, for $350, to W. H. Markell and alleged to have been assigned by him to tbe plaintiff. Tbe answer admitted tbe execution of tbe note, but denied that it bad been assigned.

From Multnomah: Henry E. McGinn, Judge. This is an action by Elizabeth F. Merrill, as administratrix of the estate of V. E. Merrill, deceased, against the Missouri Bridge & Iron Company, a corporation, and the Pacific Lime & Gypsum Company, a corporation, to recover damages for causing the death of plaintiff’s intestate. From a judgment in favor of plaintiff for $2,500, defendants appeal. The facts are set forth in the opinion of the court. Department 1.

<p>Corporations—Liability of Stockholder—What Law Governs.</p> <p>1. In the absence of statute in the state in whieh a person resides, imposing upon him a particular liability as a stockholder in a foreign, corporation, the statute of the state incorporating it or the articles which it adopts afford the rule regulating his liability to its ereditorb.</p> <p>[As to enforcement in other states of the liability of stockholders, see note in 37 Am. St. Rep. 168.]</p> <p>Corporations—Presumptions—Laws of Other State.</p> <p>2. Where the complaint, in an action by a foreign corporation to enforce the liability of a stockholder in this state, did not set forth the provisions of the foreign statute under whieh plaintiff was organized or state any charter provision respecting the liability of its stoekholders, it would be assumed that the charter was silent on that subject, and that the foreign law governing the ease was the same as the common law or the statute declaratory thereof prevailing in this state.</p> <p>[As to evidence of foreign laws and of their effeet, see note in 113 Am. St. Rep. 868.]</p> <p>Corporations — Indebtedness—Liability of Stockholder — Trust Fund.</p> <p>3. The trust fund doetrine, as applicable to the assets of a corporation which is a going concern, does not obtain in this state.</p> <p>Corporations — Insolvency—Liability of Stockholder — Trust Fund.</p> <p>4. When a corporation either suspends its business or becomes insolvent and its assets are in possession of a court of equity for final settlement and distribution, its capital stock constitutes a trust fund upon which general creditors have a lien for the payment of their demands, but mere insolvency does not of itself convert corporate property into a trust fund.</p> <p>Corporations — Stockholder’s Liability to Creditor — Conditions Precedent.</p> <p>5. It is not essential that a creditor should secure a judgment against an insolvent corporation and have an execution issued and returned nulla bona, as a condition precedent to a suit in equity for relief against a stockholder, since the performance of vain things is unnecessary.</p> <p>[As to liability of a stockholder to the creditors of the corporation, see -note in 3 Am. St. Rep. 806.]</p> <p>Corporations — Stockholder’s Liability to Creditor — Form, of Action.</p> <p>6. The proper remedy of a creditor of an insolvent corporation to reach a fund alleged to have been paid to a stockholder as a dividend in liquidation is by a suit in equity, and not by an action at law.</p> <p>[As to actions against stockholders for debts of the corporation, see note in 43 Am. Dec. 694.]</p> <p>Corporations- — Enforcement of Stockholder’s Liability to Creditor— Party Plaintiff.</p> <p>7. A corporation which has disposed of its property and ceased to transact any business, thereby necessitating the employment of another corporation in clerical work necessary to the management of its affairs and resulting in an approved claim for such service, without some restoration of its corporate life cannot institute or maintain a suit for the recovery of a dividend paid out to a stockholder in liquidation, but the suit should be instituted by such creditor corporation.</p>