Volume 7 — Oregon Reports

<p>Will — Undub Influence — Presumptions.—Where a will is shown to have been duly executed, the law presumes competency in the testator, and that it contains his unrestrained wishes in the disposition of his property; but these presumptions may be disputed.</p> <p>Idebi.- — What Proof Sufficient to Set Will Aside. — What constitutes fraud and undue influence are questions that must depend on the circumstances of the case. They are in their nature inquiries which can not be referred to any general rule. Where an arbitrary and unjust will is made in favor of one occupying a relation of confidence towards the testator, and who might have influenced his mind, slight evidence that he did exercise his power may suffice to invalidate the will. It is the duty of one occupying such a relation to disabuse the testator’s mind of any false impressions he may have concerning others entitled to his bounty, and the omission to do so may afford ground for imputing to him undue influence.</p> <p>Idebi — Circumstances Indicating Undue Influence.- — Where the estate was large and was bestowed upon one daughter to the exclusion of other children having equal claims upon the testator’s bounty, the favored daughter was alone present when the will was executed, and the transaction was kept a secret from the other children; the testatrix sustained relations of confidence towards the beneficiary under the will, and during such relation became imbued with groundless suspicion and aversion towards a son with -whom she had formerly lived, and whom she had misled; while in her last sickness she made large donations to the legatee in money, and one day before her death executed a power in favor of the legatee’s attorney to cancel a mortgage which she held against the legatee; . these transactions and the approaching death of the testatrix were kept secret from the other children: Held, that these circumstances were indicative of fraud and undue influence.</p> <p>Idem. — Unusual Clauses and Precautions. — Where the will recited that the testatrix was “not under any restraint or the influence or representations of any person,” and the certificates of two physicians were procured to the effect that the testatrix was of ‘1 sound mind and perfectly competent to make a will ” — the excluded heirs having no knowledge that a will was to be made, and never having shown any interest in the distribution of the estate: Held, that such recital and certificates indicated a consciousness of suspicion that is inconsistent with honest motives, and lead to a suspicion against the integrity of the will.</p> <p>Idem — Spiritual Communications. — Where the testatrix, prior to the exe cution of the will, accompanied the legatee, a daughter, to a spirituaseance at the house of the legatee’s attorney, where a pretended letter was read from the deceased husband of the testatrix, warning her against her son, and advising her to “fix” her property so that he should not get it: Held, that these facts were evidence of an attempt to unduly influence the testatrix in the disposition of her property by will, and went to impeach the will.</p>

<p>Instructions — Evidence op Settlement — Promissory Note. — In an action to recover for work, the defendant having pleaded a settlement and the execution of a note for the amount found due thereon, his counsel asked the court to instruct the jury that this note was presumptive evidence of a settlement. The court refused this instruction, and instructed that the note was but slight evidence of a settlement: Held, that the refusal to give the instruction asked was not error; that without explanation such instruction might mislead the jury into the belief that the note raised a conclusive presumption of settlement: Held, further, that the instruction given was erroneous; that the note was sufficient evidence of a settlement unless overcome by other evidence.</p>

<p>Appeal from Marion County. The facts are stated in tbe opinion.</p>

This is an appeal from so much of a decree, granting a divorce between the parties, as awarded to the respondent all of the appellant’s land.

<p>Appeal from Washington County. The facts are stated in the opinion.</p>

The appellant was .charged with the crime of kidnapping. The allegations are that, on the fifteenth day of December, 1877, in Multnomah county, Oregon, the defendant unlawfully seized, with intent to imprison, against her will, one Wong Ho, a China woman, the wife of one Ah Back.

The facts are stated in the opinion. By the first separate answer it is alleged that the appropriation was exhausted prior to the time this claim was presented, and by the second separate answer that said claim is an expense in excess of the income of the state for the fiscal year ending September 9, 1878, and that no law had been passed levying a tax to pay said deficiency.

The facts are stated in the opinion. I. The first proposition is that where an action for a malicious prosecution is brought, it must appear on the face of the complaint that there was a want of probable cause for the prosecution. II. This must appear by its being shown that the prosecution has been disposed of, is terminated or at an end in favor of the plaintiff in the action for malicious prosecution. III.

This is an action of trespass for personal injuries. The complaint sets out nine separate causes of action, and claims damages in the aggregate sum of ten thousand dollars. It is alleged that in ¡September, 1865, the appellant, then six years of age, was placed by his father in the care and control of the respondent, under an agreement by which he was to so remain.

<p>Service of Notice — Leaving Notice at Dwelling. — When a notice of appeal was served by leaving a copy of the notice at the place of residence of the person to be served with a person of suitable age and discretion; but the return did not show that it was so left “between the hours of six in the morniDg and nine in the evening:” Held, that the proof of service was not sufficient.</p> <p>Idem — When May be Made on Attorney. — Service of notice can only be made upon the attorney of the party to be served when such attorney resides within the county.</p>

<p>Appeal from Douglas county. The facts are stated in the opinion.</p>

Tbe complaint alleges in effect that, about October, 1876, the appellants shipped on freight trains a large amount of merchandise from Umatilla county, Oregon.; that while the train which was hauling the merchandise was crossing the Grande Bonde river in Union county, over the county bridge at Oro Dell, with but one ordinary load of freight thereon, said bridge broke down and precipitated appellants’ merchandise into the river; that such breaking of the bridge was caused by…

The facts are stated in tbe opinion. Tbe power of attorney by Welch and Shively authorizes the attorney in the name and behalf of James Welch to bargain, sell and dispose of in any manner he may see… Held: that if the jury were satisfied that the call for a river was a mistake it might be rejected.” (Barclay v. Hotvell’s Lessee, 6 Peters, 498, X 202.) “ Grant of an island by name excludes courses and distances.” (Lodge’s Lessee v. Lee, 6 Cranch, 237; II. 385.) See 8 How.

<p>Pleadings — Allegation oe Eight oe Possession. — Under subdivision 1 of section 539 of the civil code, a party in an action who obtains judgment is entitled to costs when a claim of right to the possession of real property arises upon the pleadings. In this case the right of possession was a material question. The complaint alleged ownership and possession. These allegations being denied, it was held, that a claim to the right of possession was presented by the pleadings, and that the party recovering the judgment was entitled to full costs.</p>

<p>Failure to Comply with Contract por Work, Does not Preclude Recovery eor Reasonable Value oe Services, When. — Where one performs service for another on a special contract, and for any reason except a voluntary abandonment fails to fully comply with his contract, and such compliance becomes impracticable and the service has been of value to him for whom it was rendered, he may recover for such service its reasonable value, deducting therefrom any damages which the party for whom the service was rendered has sustained by reason of such failure.</p> <p>Impeaching Witness — Evidence oe Particular Facts. — Where a party calls witnesses to impeach a witness of the other party by showing that his general reputation for truth is bad, and the other party on cross-examination calls out particular facts tending to show that such witness is not worthy of belief, such facts can be considered by the jury as affecting the credibility of the witness attempted to be impeached.</p>

<p>Parol Proof — Written Contract. — Where it is apparent upon the face of a written contract that something was contemplated and ageeed upon by the parties, which they have not distinctly defined, or expressed with sufficient clearness, parol proof connecting the instrument with its subject-matter is admissible to show what the parties intended.</p>

<p>Description op Property in Lien Notice. — In the notice of mechanics’ lien filed in the county clerk’s office, the description of the property sought to be charged ought to be as certain and definite as the description of property in a deed or mortgage where the property was described as a dwelling-house, situated on the south end of lot 6, “to which the said E. has a leasehold interest,” and it turned out that E.’s leasehold, interest was to the north one hundred feet of the lot; that R. ’s dwelling was in the center of the lot, and that another person owned a dwelling on the south end of lot 6: Held, that the' notice was not sufficient and that no lien attached.</p>

This is a suit in equity to set aside a deed made by the sheriff of Douglas county to the respondent, for land sold by the sheriff to the respondent for delinquent taxes.

The appellant, on July 17, 1878, was convicted in the justice’s court for Oregon city precinct, in Clackamas county, of the crime of selling liquor to a minor, and sentenced to pay a fine of one hundred dollars and costs, from which he appealed to the circuit court of said county, and on the same day filed his undertaking on appeal with Jacob Madder, W. W. Myers and Nicholas Webber, as sureties. There was no allowance of the appeal by the justice.

<p>Lien fob Costs — Conviction fob Felony. — H., a homestead settler, committed the crime of bigamy in 1873. In 1875 he received a patent for the homestead land. On the twenty-first of October he was indicted for the crime of bigamy, and was thereafter convicted and a judgment rendered against him for the costs of prosecution: Held, that the statute which gives the state a lien for costs upon the property of persons convicted of felonies from the time of the commission of the crime did not create a Hen against this homestead at the time the felony was committed, the title thereto being at that time in the general government.</p>

<p>Fixtures — Erections Under Adverse Claim:. — Where one person, enters on the land of another with an intention to hold an adverse possession as against the true owner and erects a building thereon, to be occupied in connection with his adverse possession, he has no right to such building as against the rightful owner of the land, although the same is of wood resting on posts or blocks and kept in place only by its own weight. Such building is not personal property, but is a part of the realty.</p>

This action is brought to recover damages for alleged breaches of implied covenants in an instrument executed under seal.

This was an action to recover four thousand one hundred dollars upon a contract to perform the carpenter’s work and furnish the materials therefor, upon a certain building.

The facts are stated in the opinion of the court. Held: that the surety was discharged, because of the departure from the terms of his contract. (Smith v. Heusman, 30 Ohio St. 662.) Where any alteration has been agreed upon and executed the surety is held discharged. (The recent English case of Holme v. BransJcill, 38 L. J. Eepts.

The facts are stated in the opinion of the court. To constitute murder in the first degree in this state it is necessary that the killing be purposely done. (Fonts v. State, 8 Ohio St. 98; Bobbins v. State, Id. 131,173,175, 190.; Kain v. State, Id. 307; Hagan v. State, 10 Id. 459; Id. 599; Johnson v. Gom., 24 Pa.

<p>Acts of each Person concerned in Criminal Enterprise involve All.— All persons associated together in a criminal enterprise are to be held equally responsible for any crime committed by either in furtherance of their common object.</p> <p>Intention to Kill — Need not be Specific as to Person Killed. — "Where one intending to kill another shoots at him and missing his aim kills a third person, he is equally guilty as though he had killed the person at whom the shot was fired.</p>

The facts are stated in the opinion of the court. There is no precedent for the submitting of a case to a jury upon testimony taken before a referee. Such a practice is contrary to the spirit of the law. (Green v. Gouverneur & Kemble, 5 Johns. Cases, 501, 507, 508.) The defense of warranty and false and fraudulent representations can not be joined in one plea. They are antagonistic; one being in the nature of a contract and the other that of a tort. (Edich v. Crinn, 10 Barb.

The facts are stated in the opinion of the court. This was a suit to foreclose a mortgage to secure the payment of a promissory note for one thousand five hundred dollars, made by the respondent, R. 3?. Wells, to N. Hen-ton, dated February 4, 1876, due one year after date.

The respondent Trullinger furnished Kofoed certain materials for a building in Astoria, amounting to nine hundred and three dollars and thirty-six cents, for which he claimed a lien upon the building and lot. He included in his account an item of thirteen thousand one hundred and twenty-five feet of lumber which was not used in the building, but was used in constructing streets adjacent thereto.

In July, 1866, the respondent, in the city of Chicago, 111., executed his promissory note to the appellants, promising to pay to them or their order, at their office in said city, on or before the first day of July, 1867, the sum of sixty-four dollars ($64.00), with interest on the same from date until paid, at the rate of seven per cent, per annum; that said note is due, and only the sum of eighteen dollars and eighteen cents has been paid on said note, which was paid and…

This is a case under an indictment which charged the respondents with the premeditated and malicious killing of one Chin Sue Ying. The jury found the defendants guilty as charged. From the judgment upon such verdict this appeal is taken.

<p>Act oe Congress eor Construction oe Dalles Military Road— Requirements oe Road Under. — An act of Congress, approved February 25, IS67, granted to the state of Oregon certain lands to aid in the construction of a military wagon road from Dalles City to a point on Snake river. It provided that such road should be built of such width and grade and with such bridges as to permit of its use as a wagon road, and in such other special manner as the state should provide, and that it should be free to the use of the United States in the transportation of its property, troops or mails: Held, that when an incorporated company accepted this grant from the state it undertook to construct the road in the manner then prescribed by the laws of the state for the construction of toll roads by private corporations, and to so maintain it.</p> <p>Idem. — The building of such road of a less width than prescribed in the law relating to roads built by private corporations will render such company liable for any damages sustained by reason thereof.</p> <p>Idem — Damages—Tolls Paid by Mail Carrier. — If the company fails to build bridges at necessary points on such road and a carrier of mails is compelled to cross bridges owned by others, he may recover the tolls which he is compelled to pay therefor from such company.</p> <p>Idem — Carriers oe Mails Exempt erom Tolls. — The right reserved to the government of free passage for its mails exempts all persons from the payment of tolls who are engaged in carrying United States mails, whether such persons are contractors from the government or the employees of such contractors.</p>

The facts are stated in the opinion of the court. It is claimed on bebalf of the respondents that the fact of the identity of the names of the appellant and his son Felix G., was a circumstance which was likely to deceive subsequent purchasers, and that the act of the appellant in executing a deed which might so deceive, was such an act, or such negligence on his part as ought now to estop him from asserting the truth.

The facts are stated in the opinion of the court. The second and third assignments of error are based on the theory that the complaint is insufficient, in not alleging Flora Parker was the daughter of the plaintiff. This allegation is necessary and material, and it must be directly made — the fact pleaded in issuable form. (2 Greenl. Ev. sec. 571; 2 Estee’s PI. 101 and 104; 16 La.

The facts are stated in the opinion. A power given to manage property does not authorize its sale; but even if sueb authority is implied, the statute interferes for the protection of heirs and creditors, and provides the manner in which the sale shall be conducted and reported to the court. (Civ.

The facts are stated in the opinion. To entitle a party to a decree of specific performance upon a parol contract, the proof must be clear and satisfactory, so as to establish the contract to the entire satisfaction of the court, leaving no room for reasonable doubt, a mere preponderance of the proof will not suffice.

In August, 1856, the appellant sold Stephen Taylor certain stock, for -which Taylor agreed to pay the proceeds of three thousand seven hundred and twenty-five dollars of Oregon war scrip, or one thousand five hundred dollars in lawful money in case the scrip was not paid within two years from that date.

<p>Liquidated Damages — Penalty—Where in a written contract to cut a certain number of cords of wood by a given time it was stipulated that in case the wood was not all cut by the time named in the contract, the laborer should forfeit five cents per cord on what wood he had cut: Held, that such stipulation fixes the measure of damages to be paid by the party failing to cut the wood.</p> <p>Pleadings — Answer—General Denial. — The general denial in the answer that the defendant promised to pay the reasonable value of work performed raised no issue to be tried by a jury. When the defendant admits that the work was performed for the defendant; for when work is done by one person for another at his request, there is an implied promise to pay, which will prevail unless avoided by some special agreement.</p>

On tbe twentieth of April, 1873, the Pioneer Oil Company, a private corporation was indebted to the appellants in the sum of forty-four thousand five hundred dollars. On that day the respondent voluntarily sold one hundred and forty shares of the stock of the corporation of which he was the owner.

The facts are stated in the opinion. The alleged cloud upon respondent’s title to the land which he claims to own by accretion, is an application by the appellant, filed in the office of the secretary of state, of the state of Oregon, on or about the eighteenth day of March, 1872, for the purchase of said land from the state of Oregon, as swamp and overflowed land. This casts no cloud on the respondent’s title, if he has any.

This is an action against one Silvers and J. H. Mitchell, the appellant, upon a promissory note. Held: that Geo. O. Warring was a maker of the note, an original party to the instrument. A writing is presumed to be truly dated. (Code of Civil Procedure, sec. 766.) And that a promissory note or bill of exchange was given or endorsed for a sufficient consideration.

The respondent brought this action to recover the possession of the undivided seven fifteenths of the tract of land described in the complaint. The appellant sets up three defenses: 1. That it is the owner in fee-simple of the premises and of every portion thereof. 2.

This is an action by the appellant for the recovery of certain lands occupied by part of the canal and locks around the Willamette Falls, opposite Oregon city, in Clackamas county, he claiming the undivided seven fifteenths thereof. The land in dispute is a part of the donation claim of Robert Moore, deceased, the father of the appellant.

The facts are stated in the opinion. Undue influence, to avoid a deed or a will, must be of such a nature as to deprive the grantor, or testator, of free agency and render his act obviously more the… Held: under the statutes of Elizabeth, the deed void as to them-There is no analogy between that ease and this. There is a difference between a deed made to defraud creditors and a deed obtained by fraud practiced on the grantor.

<p>Appeal — Objection Waived. — An objection that tbe judge presiding ivbere the judgment appealed from was rendered was not authorized to sit can not be considered in the appellate court, unless it was made in the court below.</p> <p>Eight to Office can not be Questioned Collaterally. — The right of a person to hold the office of judge can not be tried collaterally in a criminal action. The only way of determining that question is by an action to prevent the usurpation of an office as provided for in Title V, of chapter 4, of the Civil Code.</p> <p>Indictment — Grand Jury, Proceedings before. — An attorney engaged to assist the prosecution was, at the request of the district attorney, present before the grand jury at an examination upon a criminal charge by them: Held, that this was not a cause for setting aside the indictment found in such proceeding, nor a ground of reversal of the judgment subsequently rendered.</p> <p>Indictment for Murder — Criminal Law — Instructions.—Upon a trial for murder in the first degree, the court charged the jury, that from the evidence there was but little, if any, room to doubt that deceased was deliberately and willfully murdered while riding on horseback on the public highway. The court further charged the jury as follows: “ Circumstances have been proven which are claimed to establish the fact that the defendant committed the deed:” Held, that these instructions assumed facts which it was the exclusive province of the jury to find and were erroneous; that an admission on the trial that the deceased was killed by a gunshot, at the time and place charged, was not an admission that he was murdered.</p> <p>Idem — Admissions—Where no Question is Made as to Degree of Guilt. —The plea of not guilty is a continuous denial of every allegation in the indictment, and of every statement of the witnesses, who testify against the defendant, and he does not admit the degree of the crime charged by the omission to make any question as to such degree. But by this it is not meant that where certain facts have been testified to, the court may not say to the jury, that if they believe the testimony to be true, they should find the defendant guilty in the first degree.</p> <p>Per Mr. Justice Boise, dissenting:</p> <p>Admissions — Defendant Precluded from Denying, When. — A judge can assume in his charge that any fact in the case is not disputed, if such is the case, and if a party wishes to dispute this assumption, he is bound to say so to the court at the time, and have the matter corrected, or the fact of the admission settled; and it is not sufficient simply to except to so much of the charge without saying more.</p> <p>Idem — Construction.—The words “there is no question as to the degree of the crime, ” are in effect a statement that the degree of the homicide is admitted. The admission that deceased was killed at the time and place charged by a gunshot, and the admission that the killing was murder in the first degree made it proper to charge that the deceased had been willfully and deliberately murdered.</p>

<p>Appeal from Multnomah County. The facts are stated in the opinion.</p>

In 1830 William Blackiston was the owner of a donation land claim. At that time, in consideration of love and affection/ he conveyed the south half of the claim through one Odell, as trustee, to Laura A., his wife, during her natural life with a contingent remainder to her children by William, who should survive her. In February, 1862, there were four of such children living, Frances G., Charles A., Clara, and Tobias M. No other children were born of the marriage.

This suit involves the validity of a decree rendered in a partition suit to which the appellants were parties defendant. It was brought to quiet title. The respondents had a decree as prayed for, from which this appeal is taken. The facts are stated in the opinion.

<p>Instructions — Murder—Degree oe Guilt. — A person charged with murder in the first degree may be convicted under such indictment of murder in the second degree, or of manslaughter. On the trial of such case, the degree of guilt, as well as the guilt itself, should be left to the determination of the jury, and not assumed by the court.</p>

<p>Contemporaneous Agreements. — Two contemporaneous written agreements, between the same parties and concerning the same subject-matter, are to be construed as one contract.</p> <p>Standing Timber — Possession aeter Sale. — •'Where the owner of standing timber sells it, but by the terms of the contract of sale, he is to cut the timber into saw-logs and deliver them to the vendee at his mill, the possession of the property remains in the vendor after the sale.</p> <p>Pledge, by one in Possession. — -The lawful possessor of personal property has a right to pledge it to another who has done work upon it to secure payment for his services, and the pledgee can hold the same until his claim is satisfied.</p> <p>Idem — Delivery, to Whom Made. — The bailee of goods, held in pledge, is bound to deliver them back to the person from whom he recovered them when his claim is satisfied.</p> <p>Per Mr." Justice Boise, dissenting:</p> <p>Contemporaneous Agreements — One Contract, When. — Two contemporaneous agreements between the same parties and concerning the same subject-matter are to be taken together and construed as one contract only so far as the last contract refers to the first, and by its terms modifies it, or when, either from the writings themselves or from extrinsic evidence, it appears that in fact the two agreements are parts of one transaction.</p> <p>Lien, can only be Given by Owner. — The general rule is that the right of lien must be given by one having the right of property. The bailee of property may employ workmen to labor upon the same, but he can not make the bailor responsible for his contracts with such workmen.</p> <p>Judgment — Amount op. — Where the bailee of personal property having a lien thereon is adjudged to have a return of the property, or an alternative money judgment in case a return can not be had, such alternative judgment should only be for the amount of his lien.</p>

In 1860, James Welch, deceased, purchased from John M. Shively and wife, lots 5 and 6 in block 134, .and lot 1 in block 135, in the town of Astoria. The lots so purchased were a part of «the donation land claim of Shively and wife. A portion of the lots on the south were above high water. They extended on the north into the Columbia river below low-water mark to the ships channel.

<p>Appeal from Linn County. The facts are stated in tbe opinion.</p>

<p>Appeal from Multnomah Country. The facts are stated in the opinion.</p>

This is a suit to restrain the respondents from using a certain water ditch, and from continuing certain mining operations described in the complaint. The appellant is the owner of certain real estate in Jackson county, through which the ditch in question runs. The ditch was constructed prior to 1866 by one Balls, while the title to the land was yet in the United States. The respondents are using the ditch under a license from Balls.

In 1856, and long prior thereto, the appellant was the wife of the respondent, Pritchard, who was a settler upon three hundred and twenty acres of land in Marion county under the act of congress known as the “ donation law,” which gives to the wife of a settler one half of the donation acquired.

<p>Execution Sale — Collateral Attack. — Where a sale is made under an execution which varies from the judgment in certain particulars, either in the amount of the judgment, or in the names of the parties, such variances are treated as irregularities, which are amendable, and in a Collateral proceeding such amendments will be considered as actually made.</p> <p>Will — Misdescription oe Land Devised. — A will which devises land de? scribed as the north half of the donation claim of Bartholomew Dove, may be admitted in evidence, to be followed by extrinsic evidence tend.ing to show that the north half of the donation claim of Bethuel Dove W'as intended to be devised.</p> <p>Landlord and Tenant. — A tenant is estopped from disputing his landlord’s title, and when the relation is once established it attaches to all persons succeeding to the possession of the premises through or under the first tenant.</p>

This was an action commenced by the plaintiff against the defendant in the circuit court of Linn county, Oregon, to recover three thousand two hundred and forty-four dollars and fifty cents damages, for wrongfully taking, carrying away and converting a large amount of personal property belonging to the plaintiff, to the defendant’s use.

The indictment charges that one Han How was arrested on a charge of larceny from a dwelling-house, and at the time of her preliminary examination before a justice of the peace the appellant was called as a witness for the state, and testified that he, appellant, saw the said Han How at the house where the larceny was charged to have been committed on the thirtieth day of October, 1877, and the indictment charges that this statement was false.

This is a suit by the respondent, Iri Orton, to foreclose a chattel mortgage, executed by the defendant,M. W. Orton. The mortgage was executed and duly registered od the tweuty-first day of September, 1878,. to secure a promissory note of that daté for two thousand one hundred and fifty-two dollars and interest, payable one day after date. The property mortgaged consisted of a stock of goods.

<p>Practice — Appeal—Notice of, how Served on Non-resident. — Where the sheriff serves notice of an appeal on non-resident respondents having no attorney in the county, and their places of residence are unknown to him, he may serve the notices on the clerk of the circuit court, notwithstanding the appellant’s attorney living in another county may know where the respondents reside.</p> <p>Idem — Abandonment oe Appeal, Party not Precluded by. — Where a notice of appeal to the supreme court is served on the respondent, the appellant may abandon it, and give a second notice at any time within the period limited by law for taking appeals.</p>

The facts are stated in the opinion. The allegations of - defendant in his answer as to the want of consideration of the Miller note, the indorsement and payment of the Minear note are affirmative pleas, and it rests with defendant to prove them as such affirmative allegations. {Coles v. Soulsby, 21 Cal. 47; Gillchrist v. Stevenson, 9 Barb. 9; Gould’s Pleadings, 156, secs. 195-67; 1 Green on Evidence, p. 103, sec. 74; Blanchard v. Young, 11 Cush. 345; Ballister v. Bender, 1…

The facts are stated in the opinion. The plaintiffs are entitled to a decree of specific performance of the contract in this case unless they were guilty of fraud, such as to prohibit the interference of a court of equity in their behalf.

<p>Verdict — Presumption.—The verdict of a jury will be presumed to be as broad as are the issues of fact upon which it was found.</p>

This is a suit in equity brought by the respondent, Starr, against the appellant, Stark, for an accounting for rents and profits received by Stark from certain property in Portland, of which Stark is alleged to have held the legal title as trustee of Starr; and for an accounting for certain moneys alleged to have been recovered from Starr by Stark by means of such legal title, and in violation of his trust for the detention of such real property by Starr.