Volume 71 — Oregon Reports

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Moore. This action was commenced March 8, 1913, to recover money. The plaintiffs IT.

From Linn: Percy R. Kelly, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by Nellie McDaniel against the Lebanon Lumber Company, a corporation, to recover damages resulting from the death of her husband, Warren McDaniel, January 4, 1912, while he was employed in the defendant’s sawmill.

<p>Appeal and Error—Justices of the Peace—Liability on Appeal Bond.</p> <p>An undertaking on appeal from a justice of the peace is to be construed strictly in favor of the surety, and, where it is conditioned that the appellant will pay all costs and disbursements that may be awarded against him on the appeal, and satisfy any judgment that may be given against him in the appellate court, and the appeal is abandoned and no judgment is rendered in the appellate court, the surety is not liable.</p> <p>[As to liability of sureties on appeal bonds, see note in 38 Am. St. Rep. 702.]</p>

<p>Contracts—Validity—Restraint of Trade.</p> <p>1. A provision in a deed that the property shall revert to the grantors, if any person shall conduct or allow to be conducted any livery business on the premises, is' lawful, being only a partial restraint and incident to the transfer of the property.</p> <p>[As to the validity of contracts, in restraint of trade, see notes in 92 Am. Dec. 751; 35 Am. Rep. 269; 74 Am. St. Rep. 235.]</p> <p>Vendor and Purchaser—Rescission—Laches—Restoration of Considera- . tion.</p> <p>2. Praud in an agreement collateral and subsequent to a transfer of real property, even if such agreement be considered as part of the principal transaction, affords no ground for relief to the grantee, where he took no action till more than four years after discovery of the fraud, and did not then offer to restore the real property.</p> <p>[As to the enforcement in equity of stale claims, see note in Ann. Cas. 1914B, 314.]</p> <p>Deeds—Breach of Condition Subsequent—Nature and Form of Bern- . edy—Demand.</p> <p>3. Under Section 325, L. O. L., providing that any person who has a legal estate in real property and a present right to possession may recover possession, with damages for- withholding the same, by an action at law, a grantor may maintain ejectment against the grantee on breach of condition subsequent without previous demand or re-entry.</p>

From Union: John W. Knowles, Judge. In Banc. Statement by Mr. Justice Burnett. By its complaint filed August 17, 1911, the Outcault Advertising Company, a corporation, alleges in substance that the defendant, H. W. Buell, sent to it a written order of which the following is a copy: “Date, June 9, 1910. Order No. 608.

<p>From Clatsop: James U. Campbell, Judge.</p> <p>This is an action by James L. Lovell against the City of Astoria, for damages arising from injury to plaintiff’s property, caused by the alleged negligence of the city in the construction of a fill in a street.</p> <p>The plaintiff recovered judgment on a verdict and defendant appeals.</p> <p>Submitted oh briefs without argument under the proviso of Buie 18 of the Supreme Court: 56 Or. 622 (117 Pac. xi).</p> <p>In Banc.</p>

From Union: John W. Knowles, Judge. This is an action by W. B. Yankey against C. H. Law. From a judgment in favor of plaintiff, defendant appeals. The facts are set forth in the opinion of the court. Department 2.

<p>Deeds—Operation and Effect—Surrender of Deed.</p> <p>1. Where a father made a deed to his daughter and after his death she surrendered the deed to her mother for the purpose of a settlement among all the heirs, but no settlement was made, the surrender was without effect.</p> <p>[As to return of consideration on repudiation of void contract, see note in Ann. Gas. 1914C, 898.]</p> <p>Descent and Distribution—Family Settlement—Validity.</p> <p>2. A family settlement in writing, in which it is agreed that the settlement shall not be effective till all the parties shall have duly executed and acknowledged it, is without effect, where one of the heirs refuses to sign it because it asked him to sign away all his rights under the will of the decedent.</p>

<p>Appeal and Error—Record—Matters Presented for Review.</p> <p>1. Where no bill of exceptions is brought up, and it does not appear that any request was made in an action at law tried by the court for other findings, the only question to be considered on appeal is whether there is any competent testimony to support the findings.</p> <p>Bills and Notes—Action—Sufficiency of Evidence.</p> <p>2. In an action on a note, in which the defendant filed a counterclaim, evidence held to sustain a judgment for defendants for eosts.</p>

<p>Criminal Law—Appeal—Dismissal—Time for Motion.</p> <p>1. Where the record contains a bill of exceptions consisting of the transcript of all the evidence in the case, and the appellant relies on the denial of a motion for directed verdict -as error, a motion to dismiss the appeal on the ground that appellant has not filed a proper bill of exceptions and because the brief contains no assignment of error, not filed within ten days after knowledge of the alleged failure of the appellant to comply with the requirements, .as required by Supreme Court Rule 23 (56 Or. 623, 117 Pac. xii), must be denied.</p> <p>Criminal Law—Appeal—Bill of Exceptions—Matters Presented for Review.</p> <p>2. Upon a bill of exceptions consisting of a transcript of all the evidence, no question can be considered except the ruling on a motion for directed verdict.</p> <p>Criminal Law—Nonsuit—Extent of Right.</p> <p>3. In a criminal trial a proceeding in the nature of a motion for nonsuit is not recognized under the code, unless defendant has rested his case.</p> <p>Criminal Law—Appeal—Determination of Cause—Reversal.</p> <p>4. In view of Section 1444, L. O. L., providing that when a crime involves the commission of, or attempt to commit, a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material, and Article VII, Section 3 of the Constitution as amended, authorizing affirmance when the court can determine from the evidence that the judgment was such as should have been rendered, the denial of a motion for directed verdict in a prosecution for receiving stolen goods for failure to prove the corporate existence of the alleged owner of the goods is not ground for reversal, where the evidence showed that the company named had been in business for many years, and no one was misled by the omission of the proof, though there was not even an attempt to prove a de faoto corporation.</p> <p>Indictment and Information—Ownership of Property—Designation.</p> <p>5. When the ownership of goods stolen is laid in a corporation, the corporate name must be given, but the fact of the incorporation need not be alleged, at least, if the name imports incorporation.</p>

From Wallowa: John W. Knowles, Judge. This is an action by Aaron Wade against the Amalgamated Sugar Company, a private corporation. A complete statement of the facts involved herein will be found in 65 Or. 488 (132 Pac. 710). In Banc.

From Sherman: David R. Parker, Judge. In Banc. Statement by Mr. Chief Justice McBride. This is an action by F. C. Schumacher against N. E. Moffitt, to recover a balance due for labor performed. Upon the trial the plaintiff testified on his own behalf, and no testimony was 'introduced on behalf of defendant. Among other matters plaintiff testified that in December, 1912, he and the defendant had a settlement.

<p>Interpleader—Eight to Maintain Suit—Interest of Plaintiff.</p> <p>1. Since the plaintiff in interpleader is required to be a disinterested stakeholder of the fund or property, he must, in his complaint, admit the true amount owing.</p> <p>[As to general principles of interpleader and when it is to be maintained, see notes in 35 Am. Dee. 695; 91 Am. St. Eep. 593.]</p> <p>Interpleader—Pleading'—Answer.</p> <p>2. The defendants in interpleader cannot defend the suit by merely alleging in their answer that the fund is greater than that admitted by the complaint, but they must also prove that the fund is greater than plaintiff admits.</p> <p>Stipulations—Obligation and Effect.</p> <p>3. A stipulation in a suit, in the nature of a bill of interpleader, that each of the parties waives all objections to the sufficiency of the pleadings and consents that the eourt sit as a eourt of equity and try all of the issues, each party reserving the right to appeal, authorizes the eourt to try all material matters alleged in the pleadings.</p> <p>Interpleader—Evidence—Weight and Effect. ■ -</p> <p>4. In a suit in the nature of a bill of interpleader, the evidence held to show that the plaintiff owed only the amount whieh he- admitted in his complaint.</p>

<p>Counties — Indebtedness — Constitutional Limitation — Voluntary Indebtedness”—“Involuntary Indebtedness.”</p> <p>1. Within the rule that Article XI, Section 10 of the Constitution, limiting the debts which a eounty may create, extends only to voluntary indebtedness; “voluntary indebtedness” is one which a county may evade or postpone till means are provided for the payment of the expenses incident thereto, and an “involuntary indebtedness” is one imposed by law, which the county may not evade or postpone.</p> <p>Counties—Debts—Constitutional Limitation.</p> <p>2. Article I, Section 32 of the Constitution, requires all taxation to be equal and uniform. Article IX, Section 1, requires the legislative assembly to provide by law for uniform and equal rate of assessment and taxation, and to prescribe such regulations as shall secure a just valuation. Section 937, L. O. L., makes the county court the financial business agent of the county. Section 3586 requires the assessor to assess all taxable property and lands at their true cash value. Held, that- an expenditure incurred by the county court in cruising timber land for the purpose of assessment for taxation, which could not be made equitably by the assessor without assistance, is not a voluntary indebtedness of the eounty such as is prohibited by Article XI, Section 10 of the Constitution.</p> <p>[As to claims against counties and the effect of allowance or rejection of them, see note in 55 Am. St. Rep. 203.]</p> <p>Counties—County Board—Powers.</p> <p>3. Under Section 937, L. O. L., giving the county court authority to transact eounty -business, it may, unless prohibited by law, adopt such means as in its judgment shall be expedient in assisting the county officers properly to discharge the duties of their offices.</p>

From Josephine: Frank M. Calkins, Judge. This is a suit by the Grants Pass Hardware Company, a corporation, against J. L. Calvert and Joseph Wolke. From a decree in favor of defendants,' plaintiff appeals. The facts are stated in the opinion of the court. Department 2.

From Umatilla: Gilbert W. Phelps, Judge. This is an action by George W. Eiggle against I. C. Lens, From a judgment in favor of defendant, plaintiff appeals. The facts are fully set forth in the opinion of the court. In Banc.

From Umatilla: Gilbert W. Phelps, Judge. This is a suit by Louis Bergevin and Thomas Bergevin against Matt Mosgrove, for an accounting. Plaintiffs being displeased with the decree rendered in favor of defendant, appeal. In Banc.

From Multnomah: George N. Davis, Judge. In Banc. Statement by Mr. Chiep Justice McBride. This is a motion to dismiss an appeal in an action by George Smith against D. C. Burns and Arthur Gossman. The defendant Burns was sued jointly with one Gossman for personal injuries sustained by plaintiff, whose complaint alleged that Gossman, while driving Burns’ automobile upon business for Burns, negligently ran over and injured plaintiff.

<p>Mortgages—Rights of Parties—Recovery of Principal Obligation—Assumption of Mortgage by Third Person.</p> <p>The right of a creditor, holding a purehase-money mortgage, to waive his security and recover on the note accompanying it cannot be divested by an agreement between the debtor and a third person that the latter will pay the mortgage; the debtor’s remedy, under such circumstances, being to sue the assignee for breach of the agreement or to be subrogated to rights of the original creditor.</p> <p>[As to concurrent remedies of holders of mortgages, see note in 73 Am. St. Rep. 559.]</p>

From Grant: Dalton Biggs, Judge. This is an action by W. S. Fields and Jennie E. Fields against R. J. Crowley and A. J. Wright to recover rents, issues and profits amounting to $1,220.85. The court below rendered judgment in favor of defendants and plaintiffs appeal. The facts are stated in the opinion of the court. In Banc.

From Coos: John S. Coke, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action of replevin by Andrew Heckela against tbe Coos Bay Liquor Company, a corporation.

From Coos: John S. Coke, Judge. In Banc. Statement by Mr. Justice Bakin. This is a suit by David S. Rouse against the River-ton Coal & Development Company, Irvin Urquhart and John R. McGee. The facts are as follows: An option for the term of ten years from- April 1, 1904, to purchase a certain 110 acres of coal land was given by Alexander Urquhart to Rouse on specified terms.

From Multnomah: John P. Kavanaugh, Judge. Tlie defendant, E. E. C. Von Klein, was indicted, tried and convicted in the Circuit Court of Multnomah County of polygamy and sentenced to imprisonment in the penitentiary for the term of from one to four years, and appeals. Department 1.

<p>Commerce—Railroads^-Regulation—Injuries to Servant—Federal Employers’ Liability Act.</p> <p>1. An action for an injury to a brakeman in a switching crew, whose general duties were to use a locomotive in moving indiscriminately cars used in local traffic and those carrying goods destined to and received from other states, the injury having occurred when plaintiff was coupling the locomotive to ■ a private car used wholly within the state, is within the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. Stats. Supp. 1911,</p> <p>р. 1322), relating to the liability of common carriers engaged in commerce between any of the several states tQ persons injured in their employ.</p> <p>Master and Servant—Injuries to Servant—Assumption of Risk—Federal Employers’ Liability Act.</p> <p>2. Under the Federal Employers’ Liability Act (Act April 22, 1908, с. 149, § 4, 35 Stat. 66, U. S. Comp. Stats. Supp. 1911, p. 1323), providing that in any action under the act the employee shall not be held to have assumed the risks of his employment where the violation by the common carrier of any statute enacted for the safety of the employees contributed' to the injury or death of the employee, the defense of assumption of risk is not eliminated except in cases prescribed by the statute itself, and the protective statutes referred to in the section are federal statutes only.</p> <p>[As to employees entitled to protection under Federal Employers’ Liability Act, see note in Ann. Cas. 1914C, 164.]</p> <p>Commerce—Power to Regulate—Effect of Federal Statute.</p> <p>3. The Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. Stats. Supp. 1911, p. 1322), relating to liability of common carriers engaged in interstate commerce to employees, is exclusive of all state legislation on the same subject.</p> <p>Master and Servant—Injuries to Servant—Actions—Pleading.</p> <p>4. An answer in an action under the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. Stats. Supp. 1911, p. 1322), alleging the promulgation of rules by defendant governing its employees and violation thereof by plaintiff, does not show assumption of risk, since that defense relates to the inherent and usual hazards of the occupation, and disregard of rules is referable rather to negligence.</p> <p>[As to pleading Federal Employers’ Liability Act, see note in Ann. Cas. 1914C, 171.]</p> <p>Trial—Instructions—Applicability to Case.</p> <p>5. In an aetion for injuries to a servant, where the complaint did. not allege that defendant was negligent in failing to inspect, an instruction on that issue was error.</p> <p>Trial—Instructions—Province of Court and Jury—Questions of Law.</p> <p>6. In an action for injury to a servant, it. is error to submit to the jury the question whether the common law or the employers’ liability law (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. Stats. Supp. 1911, p. 1322), should apply to the issue in question.</p> <p>[As to jury as judges of the law as well as the facts, see notes in 33 Am. Rep. 791; 42 Am. St. Rep. 290.]</p>

<p>Constitutional Law—Construction of Constitutional Provisions—general Rules.</p> <p>1. A constitutional provision must be construed as a whole, and, if possible, so that each part will harmonize with all others, without distorting the meaning of any, to the end that the intent of the framers may be ascertained and carried out.</p> <p>[As to rules for construction of statutes, see note in 12 Am. St. Rep. 826.] ■</p> <p>Municipal Corporations—Charter—Amendment.</p> <p>2. Under Article.XI, Section 2, of the Constitution, as amended, providing that corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws, that the legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town, and that the regular voters of every city or town are granted power to enaet and amend their municipal charter subject to the constitutional and criminal laws of the state, and Article IV, Section la, reserving the initiative and referendum powers to the regular voters of every municipality as to municipal legislation, the legislative assembly cannot amend the charter of a municipal corporation either by special or general act.</p> <p>Municipal Corporations—“Municipal Officer”—Policeman.</p> <p>3. Policemen of the City of Portland, selected and paid for their services by the city, whose duties under the charter are largely municipal and eonfined to boundaries of the city, but who are peace officers and make arrests for crimes against the state, are “municipal officers,” and not state officers.</p> <p>Municipal Corporations—Charter—Amendment—Constitutional Provision.</p> <p>4. Laws of 1913, page 548, providing for a police relief, health, disability, and pension fund in cities having more than 50,000 inhabitants and creating a board of police and pension relief, applying only to the City of Portland, and changing the police pension plan provided by the charter of that city adopted by referendum, is an amendment of the city charter in violation of Article XI, Section 2, of the Constitution, prohibiting the legislative assembly from amending municipal charters.</p> <p>[As to validity of statute or ordinance providing for pensions for municipal employees, see note in Ann. Cas. 1912C, 545.]</p>

<p>Weights and Measures—Regulations—Violation—Complaint.</p> <p>Under Laws of 1911, page 289, Section 3, requiring all butter sold or offered for sale to be plainly marked “8 ounces, full weight,” “16 ounces, full weight,” “24 ounces, full weight,” or “32 ounces, full weight,” and making violation of the provisions of the act a misdemeanor, a complaint charging that the accused sold and offered for sale squares of butter not plainly marked “32 ounces, full weight,” contrary to the statute in sueh eases made and provided, not showing that the butter was not marked in either of the other ways named in the statute, did not state an offense, though Section 1448, subdivision 6, L. O. L., declares an indictment sufficient if the act or omission charged is clearly and distinctly set forth in ordinary and eoncise language without repetition and in such a manner as to enable a person of common understanding to know what is intended.</p> <p>[As to the validity of legislation for prevention of fraud in weights and measures, see note in Ann. Cas. 1912C, 251.]</p>

<p>Gifts—Causa Mortis—Evidence—Weight and Sufficiency.</p> <p>1. Evidence held to show that decedent gave the promissory notes, in controversy to defendant; that she indorsed each of them with her own hand, and delivered them to the defendant with intent to vest title in him, and that he accepted them as a gift causa mortis.</p> <p>[As to conveyances regarded as gifts ca/usa mortis, see notes in 99 Am. St. Eep. 890; Ann. Cas. 1912C, 272.]</p> <p>Gifts—Causa Mortis—Delivery—“Gift Causa Mortis.”</p> <p>2. A “gift causa mortis,” like a gift inter vivos, must be completely executed and go into immediate effeet, and be accompanied by an aetual and complete delivery.</p> <p>[As to delivery sufficient to support a gift causa mortis, see notes in 50 Am. Eep. 178; Ann. Cas. 1914A, 529.]</p> <p>Gifts—Causa Mortis—Delivery—Chose in Action.</p> <p>3. Whether a gift of a promissory note or other chose in action is causa mortis or inter vivos, the actual delivery of the written evidence of the debt is sufficient, without any assignment or indorsement.</p> <p>[As to gift cama mortis of notes and other choses in aetion payable to order, see notes in 23 Am. Dee. 600; 25 Am. Dee. 389.]</p> <p>Gifts—Causa Mortis—Validity.</p> <p>4. Gifts cama mortis, if made by competent persons, and fully executed, are valid, in the absence of fraud or undue influence, if the rights of creditors are not affected.</p> <p>Gifts—Causa Mortis—Evidence.</p> <p>5. While gifts causa mortis are sustained only on clear proof of the essential facts, there is no presumption of law against them.</p> <p>Evidence—Expert Testimony—Weight and Effect.</p> <p>6. Opinion evidence in relation to handwriting is generally viewed with caution by the courts.</p> <p>Gifts—Causa Mortis—Burden of Proof.</p> <p>7. Where a relation of confidence exists, as Between a man and woman engaged to be married, it is ineumbent upon the donee causa mortis to show that the gift was not obtained by fraud or undue influence.</p> <p>Cancellation of Instruments—Suit to Set Aside Gift—Laches.</p> <p>8. Where plaintiffs’ in a suit to set aside a gift cama mortis, knew as much about the facts 12 years before as when suit was commenced, their acquiescence in the gift for that time was laches.</p> <p>Gifts—Causa Mortis—Evidence—Weight and Sufficiency.</p> <p>9. Evidence held to show that a gift cama mortis was not induced by fraud or undue influence of the donee.</p>

Prom. Crook: William L. Bradshaw, Judge. This is an action by Jobn W. Saxton against W. C. Barber. Prom a judgment in favor of plaintiff, defendant appeals. Tbe facts are stated in tbe opinion of tbe court. Department 2.

<p>Dedication—Acts Constituting—Adverse Use.</p> <p>1. Where a city permits uninterrupted use of premises as a park by the public for more than 40 years, such occupation amounts to an irrevocable dedication to the community for that purpose.</p> <p>[As to what amounts to a dedication to a public use, see note in 27 Am. Dee. 559. As to presumption of dedication from user as a highway, see note in Ann. Cas. 1914D, 335.]</p> <p>Municipal Corporations—Parks—Eights of Property Owners—Estoppel.</p> <p>2. That plaintiffs purchased lots opposite a park for the purpose of establishing residences thereon, each paying for his part of the real property more than he would otherwise have given, does not create an estoppel m pais against the city, so as to create any private right in or to the park.</p> <p>[As to estoppel by acquiescence of silence, see notes in 57 Am. Eep. 429; 10 Am. St. Rep. 22.]</p> <p>Municipal Corporations—Parks—Estoppel—Bights of Property Owners.</p> <p>3. The widening of streets adjacent to a park, effected by donations of .their property by plaintiffs but without any agreement with the city, does not secure to plaintiffs any private interest in the park, and no equitable estoppel arises therefrom.</p> <p>Municipal Corporations—Parks—Purpresture.</p> <p>4. The construction by a city in a park of a garage in which to keep automobiles and motor trucks to be used by members of the park board and their employees in earing for the public parks of the city would be a purpresture, unless the city was authorized to erect the garage.</p> <p>[As to what are purprestures and remedies for their abatement, see note in 69 Am. St. Rep. 271.]</p> <p>Nuisance1—Public Nuisance—Elements.</p> <p>5. The attempt to make several a part or all of that which ought to be common to many may constitute a nuisance, depending on the facts of each particular ease.</p> <p>Nuisance—Public Nuisance—Injunction—Relief—Purpresture.</p> <p>6. A court of equity may enjoin a purpresture, not only when it becomes a public nuisance, but also where a private party has sustained or will sustain a special injury by the threatened creation or maintenance of the purpresture.</p> <p>Municipal Corporations—Parks—Rights of Property Owners.</p> <p>7. An averment, in a complaint, that the plaintiffs’ real property is separated by a street from a public park states such a special interest as to authorize them to maintain a suit to determine whether the threatened erection by the city of a garage on the park would constitute a purpresture.</p> <p>Municipal Corporations—Building on Public Park—Subject of Relief.</p> <p>8. The erection on a public park by a city of a garage for automobiles and motor trucks to be used by members of the park board and their employees in earing for the publie parks of the city will be-restrained in equity at suit of the owners of residence lots across the street from the park.</p> <p>ON PETITION FOR REHEARING.</p> <p>Municipal Corporations—Parks—Charter Provisions.</p> <p>9. Portland City Charter (Sp. Laws 1903, p. 3), declaring that the city may lease, sell, or dispose of parks for the benefit of the city, does not authorize the erection of a garage on the park for automobiles and motor trucks for park officers and employees; tbe rule “ejusdem generis” being applicable in construing tbe general word “dispose,” following tbe words of specific meaning.</p>

<p>Replevin—Pleading—Complaint.</p> <p>The failure of a complaint to recover personal property to allege that the property was in the eounty when the action was commenced cannot be reached by general demurrer.</p> <p>[As to what are local and transitory actions, see note in 22 Am. St. Rep. 22.]</p>

From Multnomah: Henry E. McGtnn, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by John Filkins against the Portland Lumber Company, a corporation, to recover damages for a personal injury.

From Lake: Henry L. Benson, Judge. The defendant, F. O. Bunting, was tried and convicted of employing a man to labor in his manufacturing establishment for more than 10 hours, to wit, for 13 hours in one day, in violation of Laws of 1913, Chapter 102, and alleging that the act in question is unconstitutional, appeals. The facts developed are set forth in the opinion of the court. In Banc.

<p>Carriers—“Common Carrier.”</p> <p>1. A common carrier is one who, by virtue of his calling, and as a regular business, undertakes to transport persons or commodities from place to place for all who ehoose to employ him and pay his charges, and a logging railroad which carries logs only for its owners is not a common carrier.</p> <p>[As to when a person or corporation is a carrier of goods as distinguished from warehouseman or forwarder, see note in Ann. Cas. 1914B, 778.]</p> <p>Eminent Domain—Extent of Power—Constitutional Provisions.</p> <p>2. Section 6307, L. O. L., in so far as it authorizes the establishment of a county road from the timber land or timber of the owner to some public road, steamboat landing, or railway station, is unconstitutional as authorizing a taking for private use, though the road may be of benefit to the public; and road proceedings and a franchise for a logging railroad based thereon are void.</p> <p>[As to what is taking property for a public use as contemplated in eminent domain laws, see note in 16 Am. St. Rep. 610.]</p> <p>Eminent Domain—Extent of Power—Constitutional Provisions.</p> <p>3. Article I, Section 18, of the Constitution, providing that private property shall not be taken for public use without just compensation, impliedly prohibits the taking of private property for private use.</p>

Prom Crook: William L. Bradshaw, Judge. Department 1. Statement by Mr. Justice Ramsey. Dick Garrett, Ray Clark, and “Chick” Wright were indicted for larceny of a steer. Dick Garrett and Ray Clark were arrested and tried. Garrett was convicted and sentenced to imprisonment in the penitentiary for a term of not less than 1 nor more than 10 years. Clark was acquitted. Wright has not been arrested. Dick Garrett appeals. The facts are stated in the opinion.

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Bamsey. This is a suit in equity by A. M. Stewart and James C. Stewart, copartners doing business under the firm name and style of James Stewart & Co., against Z. S. Spalding and the Spalding Company, a corporation, and the Northwestern Mutual Life Insurance Company of Milwaukee, Wisconsin, a corporation, and IT.

From Josepbine: Frank M. Calkins, Judge. Department 2. Statement by Mr. Justice Eakin. This is a suit by T. K. Anderson, T. K. Anderson as administrator of tbe estate of H. A. Williamson, deceased, and Albert Pbillip against Grant Pbegley and Emma G. Robinson to foreclose an agreement and to compel tbe execution of a trust.

From Wallowa: Gustav Anderson, Judge. In Banc. Statement by Mr. Justice Burnett. This is an action of ejectment by School District No. 21 of Wallowa County against Wallowa County. Upon a real controversy between the parties they have submitted their case upon an agreed statement of facts.

From Baker: Gustav Anderson, Judge. The defendant, James Childers, indicted jointly with John Williams, was tried and convicted of larceny of a steer alleged to be the personal property of one W. J. Densley, and from the sentence imposed appeals. In Banc.

From Grant: Dalton Biggs, Judge. The defendant, Lester Goff, was indicted jointly with J. B. Jingles, Ben Colvin, J ames Clark, and Monard Fix for larceny of cattle, and from a judgment of conviction lie appeals. In Banc.

<p>Master and Servant—Injuries to Servant—Appliances for Work.</p> <p>1. Independent of any statute, it is the duty of the master to supply a reasonably safe place in which and reasonably safe appliances with which the servant is required to work.</p> <p>Master and Servant—Injuries to Servant—Appliances and Place to Work—Delegation of Duty.</p> <p>2. The master cannot avoid nor delegate to another his duty to furnish a safe place to work and safe appliances, so as to escape his responsibility.</p> <p>[As to duty of employer to furnish safe plaee and appliances, see notes in 97 Am. St. Rep. 884; 98 Am. St. Rep. 289.]</p> <p>Master and Servant—Injuries to Servant—Actions—Motion for Non-suit.</p> <p>3. In an action for the death of a servant directly caused by the breaking of a chain, permitting a heavy machine to roll over and crush the servant, where there was testimony tending to show that the chain, was an appliance furnished by defendant for use in the operation of the machine, that it was worn and defective, as defendant knew or with reasonable diligence might have known, but the servant did not know, a motion for nonsuit was properly denied.</p>

<p>Deeds—Form—Seal.</p> <p>1. An unsealed deed is at least a contract for a conveyance, and, if insufficient to convey title, creates an equitable title in the grantee to the extent of the grantor’s title.</p> <p>Vendor and Purchaser—Bona Fide Purchaser—Notice.</p> <p>2. Though the record of an unsealed deed is not constructive notice, knowledge of such facts as were sufficient to put one on inquiry is notice of any facts that might have been ascertained by such inquiry.</p> <p>[As to effect of defective recording of instruments, see notes in 91 Am. Dec. 106; 96 Am. St. Rep. 397. As to right to record instrument void on its face, see note in Ann. Cas. 1912C, 675.]</p> <p>Attachment—Claims of Third Persons—Burden of Proof.</p> <p>3. Under Sections 301, 302, L. O. L., making an attaching creditor without notice of an outstanding equity a purchaser in good faith, the burden is on the attaching creditor to allege and prove that he had no notice or knowledge of the outstanding equity at the time of the attachment.</p> <p>Attachment—Claims of Third Person—Sufficiency of Evidence.</p> <p>4. In a suit to enjoin the sale on execution of property which plaintiff had conveyed by an unsealed deed, evidence held insufficient to show that the attaching creditor did not have knowledge of the deed.</p>

<p>Municipal Corporations—Sewers—Eight to Construct.</p> <p>1. A city has no right, without legislative authority, to east its sewage into a stream, so as to pollute it to the injury of lower riparian proprietors, unless it has first condemned the interests injuriously affected.</p> <p>[As to pollution of waters by a municipal corporation, see notes in 84 Am. St. Eep. 918, 924; Ann. Cas. 1912B, 450.]</p> <p>Eminent Domain—Appropriation of Stream—Sewage—Eight of City.</p> <p>2. Where the easting of sewage into a stream amounts to a public nuisance or a talcing of privaté property in the constitutional sense, the city is not protected or justified in such appropriation, unless it has acquired the right by condemnation and payment of compensation.</p> <p>Municipal Corporations—Sewers—Right to Maintain.</p> <p>3. The right granted to a city by its charter to construct sewers does not give implied authority to pollute a stream.</p> <p>Nuisance—Public Nuisance—Right to Enjoin.</p> <p>4. The right of the state to enjoin a nuisance may be delegated to and exercised by á city or other power specially named for that purpose.</p> <p>Nuisance—Public Nuisance—-Eight to Enjoin.</p> <p>5. Under Section 4693, L. O. L., providing that in cities, districts and places having no local board of health, or where the sanitary laws or regulations are inoperative, the state board of health may order nuisances to be abated and removed, and providing a criminal penalty for violation of such orders, the board of health may in a proper case have a nuisance enjoined, but only on satisfactory evidence that the act in question creates a public nuisance, or, if the danger is only apprehended, that it is real and imminent.</p> <p>Municipal Corporations—Sewers—Eight to Maintain—Injunction.</p> <p>6. In the absence of evidence as to the use of the water of a stream for domestic purposes or for stock or the probability of such use, the state board of health cannot enjoin a city from casting its sewage and drainage into the stream.</p>

<p>Justices of the Peace—Appeal—Filing Undertaking.</p> <p>1. Under Section 2458, L. O. L., providing that, within five days from the filing of a notice of appeal, an undertaking on appeal must be filed, where the undertaking, though executed in time, was not filed within the five days, the appeal was properly dismissed.</p> <p>Costs—Appeal from Justice Court—Issue of Law.</p> <p>2. On the dismissal of an appeal from a justice of the peace on motion, the respondent is entitled to an attorney’s fee of $10 for the trial of an issue of law.</p> <p>Costs—Items—Witness Fees.</p> <p>3. Where a transcript on appeal from Justice Court was filed in the Circuit Court June 7th, and on June 16th the court set the case for hearing on July 1st, on which date respondent filed a motion to dismiss the appeal, which was granted, no witnesses being called, an allowance to the respondent of witness fees as costs is improper.</p>

Prom Clatsop: James A. Eaiiin, Judge. Department 2. Statement by Mr. Justice Eakin.

From Clatsop: James A. Eakin, Judge. The defendant, August Hellala, was indicted for contributing to the delinquency of a minor. From an order denying a motion to dismiss the indictment, he appeals. Order overruled, and indictment dismissed.

From Coos: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by R. A. Graham against the Coos Bay, Roseburg & Eastern Railroad & Navigation Company, a corporation, to recover the sum of $53,552.53, with interest, for salary as manager of the defendant company. The cause was tried by the court and jury, and a verdict rendered in favor of the defendant. Prom a judgment entered accordingly, plaintiff appeals.

<p>Municipal Corporations—Public Improvements—Assessments.</p> <p>1. Under Portland City Charter, Section 375, providing that the improvement of each street or part thereof shall he made under a separate proceeding, the fact .that along a portion of the street to be improved, where before the improvement in question there was a wooden bridge between portions previously improved by graveling, it was necessary to make a fill did not invalidate an assessment, where the entire improvement, ineluding the part filled, was continuous.</p> <p>Municipal Corporations—Public Improvements—Reassessments.</p> <p>2. Portland City Charter, Section 400 (Sp. Laws 1903, p. 161), providing that, when an assessment for a street improvement shall be set aside or the council shall he in doubt as to its validity, the council may make a reassessment based on the special benefits to the respective parcels assessed, is valid and constitutional, and an assessment in compliance therewith is valid.</p> <p>Municipal Corporations—Public Improvements—Reassessment.</p> <p>3. To sustain a reassessment for a street improvement under Portland City Charter, Section 400, there must have been an actual attempt by the council, in good faith, to make an improvement and assess the cost in proportion to benefit, the proceeding must have failed because of omission to comply with some of the provisions of the charter relating to such assessments, and the improvement must have been made in substantial accord with the original contract, and the proceedings authorizing it.</p> <p>Municipal Corporations—Public Improvements—Reassessments.</p> <p>4. No notice need be given abutting owners of intention to pass a resolution for reassessment for a street improvement, and the resolution need not contain a finding that the original contract for the improvement had been substantially complied with.</p> <p>Municipal Corporations—Public Improvements—Reassessment.</p> <p>5. After a resolution for a reassessment for a street improvement has been passed by the Portland city council, notice thereof must be given to the property owners, and they must have an opportunity to appear and object to the assessment.</p> <p>Certiorari—Review—Scope and Extent.</p> <p>6. On a writ of certiorari to a city council, the eourt is restricted to an examination of the record and proceedings of the council, and cannot consider facts not found in the record.</p> <p>Municipal Corporations—Public Improvements—Reassessment.</p> <p>7. On a proceeding for reassessment for a street improvement, where the city gave due notice of the preliminary assessment and of the time when objections could be made, and property owners, by their attorney, filed with the auditor their written objections, and the council, after referring them to the city attorney and a committee, overruled them, the notice was sufficient, and the proceedings thereon regular.</p> <p>Evidence—Presumptions—Performance of Official Duty.</p> <p>8. The city auditor being the proper person to make a reassessment for a street improvement, it is presumed that he did his duty properly, and his certificate stating how he made the reassessment is presumed to be true.</p> <p>Municipal Corp'orations—Public Improvements—Reassessment.</p> <p>9. In assessing or reassessing for a street improvement, it is the duty of the officer in good faith to estimate the amount each parcel will be specially benefited, and in no ease to assess a parcel an amount in excess of such benefit, and he must not impose on a parcel the cost of the improvement in front of it, unless the property will be benefited to that extent.</p> <p>Municipal Corporations—Public Improvements—Trespass on Abutting Property.</p> <p>10. In improving a street, a city has no right to pile earth and other material upon abutting owners’ lands without their consent, and such action may be restrained by injunction, or the owners may maintain an action for damages, or have the material removed as a nuisance, if it is a nuisance, as authorized by Section 341, L. O. L.</p> <p>Municipal Corporations—Public Improvements—Assessment.</p> <p>11. That, in improving a street, a city put filling material on the lands of abutting owners, does not affect the validity of the assessment for the improvement.</p> <p>Municipal Corporations—Assessment—Review—Nature of Remedy— Existence of Other Remedy.</p> <p>12. The right to appeal from the decision of the city council in levying an assessment for a street improvement to the Circuit Court and have the amount properly assessable determined by a jury is an ample remedy to property owners without resorting to certiorari.</p> <p>Certiorari—Nature of Remedy—Discretion of Court.</p> <p>13. The granting of relief by certiorari rests in the sound discretion of the court, especially where the matters in controversy are of a public nature.</p> <p>ON PETITION EOR REHEARING.</p> <p>Municipal Corporations — Public Improvements — Assessments — Proceedings.</p> <p>14. Objections to the reassessment of the cost of a street improvement that it was not made as provided by law, but should have been made in accordance with special benefits, that the cost of improvement in front of each lot was assessed théreto contrary to the charter, that the assessment includes the repair of separate parts of a street in one proceeding, and that the base and support of the fill for part of the street were extended onto adjacent property without right, and the cost thereof charged as part of the expense of the improvement, relate to questions of law which need no special finding of fact by council.</p> <p>Municipal Corporations—Public Improvements—Assessments—Objections.</p> <p>15. An objection by a property owner to matters affecting only the payment of her assessment for an improvement, and not the regularity of the proceedings, cannot be reviewed "on certiorari brought by other property owners.</p> <p>Municip al Corporations — Public Improvements — Assessments — Review—Certiorari.</p> <p>16. Objections that the assessment for a street improvement is void because part of the improvement is made by extending the incline of the fill beyond the line of the street upon private property without purchase or condemnation, and that the abutting costs are assessed to the separate lots, instead of according to the special benefits derived by each lot being shown by the record, are reviewable by writ of certiorari.</p> <p>Municipal Corporations—Public Improvements—Review—Certiorari.</p> <p>17. Where the record shows that the charter method has been followed in making an assessment for a street improvement, error in judgment of the faets or in the computation producing the result, cannot be reviewed by writ of certiorari, but only by appeal.</p> <p>Appeal and Error—Rehearing—Petition.</p> <p>18. A petition for rehearing on appeal should state the grounds of the petition briefly and concisely, and separately from the argument.</p> <p>Municipal Corporations—Public Improvements—Assessments—Review.</p> <p>19. Where a proceeding was commenced in 1903 for a street improvement and no remonstrance was filed, and in 1908 the assessment of benefits was reviewed in the Circuit Court, the manner of making the assessment and the sufficiency of it only being questioned, and the proceedings were reversed and the cause remanded for a reassessment, a motion in the Circuit Court for an order requiring the auditor to add to the return to a writ of review the proceedings for the reassessment the proceedings relating to the initiation of the improvement, was properly denied, the irregularities or defects in prior proceedings not reviewed being waived by the adjudication setting aside the first assessment.</p> <p>Municipal Corporations—Public Improvements—Assessments—Review.</p> <p>20. Since the owners of property abutting on a street improvement are interested in the extension of k fill upon private property only to the extent of the increased cost of the improvement in excess of what it would have cost if held by a retaining wall, which is a question of fact, the remedy is by appeal and not by writ of certiorari.</p> <p>Municipal Corporations—Public Improvements—Assessments—Review.</p> <p>21. Where the preliminary assessment by the city auditor and the ordinance levying an assessment both state that it is made according to the special benefits to the property assessed, the objection that the cost of the improvement abutting each lot is assessed to the lot, instead of according to benefits, cannot be raised by certiorari, being a question of fact.</p>

From Multnomah: Thomas J. Cleeton, Judge. In Banc. Statement by Me. Justice Mooee. This is a suit by J. G. Sherod and others against Clyde B. Aitchison and others, to enjoin threatened prosecution of criminal actions, and is based on the ground that the enforcement of an alleged void statute would injuriously affect the plaintiffs’ property rights.

<p>Exchange of Property—Setting Aside—Grounds—Inadequacy of Consideration.</p> <p>1. Where a widow, 67 years of age, ignorant of business matters, and aeting without advice, exchanged a tract worth $3,000 for a tract, worth only $750 and $500 in cash, the other party having represented that the house and lot were worth $2,500, the transaction will be set aside and the deeds canceled by a court of equity.</p> <p>Deeds—Consideration—Sufficiency.</p> <p>2. Inadequacy of price bid for real property is not sufficient alone to authorize equity to set aside a deed unless it is so gross as to shock a conscientious person.</p> <p>[As to burden of proving want of consideration, see note in 135 Am. St. Eep. 763. As to recital of one dollar in an instrument as sufficient consideration, see note in Ann. Cas. 1912B, 363.]</p> <p>Deeds—Consideration—Sufficiency.</p> <p>3. Inadequacy of consideration for a conveyance of real property, so great as to shock a conscientious person, or inadequacy of consideration with other inequitable incidents, may afford grounds for cancellation of the conveyance.</p>

<p>Elections—Qualifications of Voters—Power to Regulate.</p> <p>1. While the right of suffrage is not a vested right, but a franchise dependent on law, and the only restriction on the power of states to regulate it is in the 15th Amendment to the United States Constitution, providing that the right of citizens of the United States to vote shall not be denied or abridged on account of racé; color or previous condition of servitude, yet, when the suffrage is granted by the state Constitution, it cannot be abridged or its enjoyment impeded by the legislature, except by legislation merely regulating its exercise and not amounting to a denial thereof.</p> <p>Elections—Qualifications of Voters—Constitutional Provisions.</p> <p>2. In Article II, Section 2, of the Constitution, prescribing the qualifications of electors in all elections not otherwise provided for by the Constitution, the word "elections” does not inelude all acts of voting or selection, but refers only to election of public officers, and Section 6391, L. O. L., prescribing different qualifications for voters at an election to authorize a special tax in a road district, does not violate the constitutional provision.</p> <p>Statutes—Sufficiency of Provisions—Certainty and Definiteness.</p> <p>3. Section 6391, L. O. L., prescribing the qualifications of voters at any district road meeting, is not void for failure to provide means to determine who were qualified to vote or to fix authority in anyone to determine the qualifications of voters, in view of the provision that in all other respects the laws governing school district meetings shall control elections of road district meetings, and Section 4089, L. O. L., providing for the election of a chairman and secretary of a school meeting and procedure relating to challenges of voters, and Section 6385 requiring district road meetings to be conducted in an orderly manner and to be governed by Roberts’ Rules of Order,</p>

<p>Appeal and Error—Review—Discretion of Trial Court—Submission of Special Questions.</p> <p>1. Under Section 154, L. O. L., providing that the court may direet a special verdiet upon all or any of the issues, and in all cases may instruct the jury, if they render a general verdict, to find upon particular questions of fact to be stated in writing, in an action for injuries to a longshoreman employed in loading a vessel, the submission to the jury of the question whether the vessel was on an even keel when plaintiff was hurt being within the discretion of the trial court, its ruling will not be reviewed on appeal.</p> <p>Trial—Verdict—Submission of Special Questions.</p> <p>2. In an action for injuries to a longshoreman in loading Ms vessel, the submission of a special question whether the vessel was on an even keel when, plaintiff was injured could be properly withdrawn by the court at any time before the jury had found a special verdiet thereon, and the refusal of the court to require the jury to answer the question was not error.</p> <p>Appeal and Error—Record—Questions Presented for Review.</p> <p>3. In an action for injury to a longshoreman employed in loading a vessel with wheat, where the complaint alleged negligence in permitting the vessel to be heavily loaded aft and iu ordering the forward part of the hatch, in which plaintiff was working, to be loaded first, the failure of the jury to answer a special question whether the vessel was on an even keel at the time of the injury is immaterial on appeal, where the evidence is not in the record, since the recovery could be sustained on the theory that defendant was negligent in loading the fore part of the hatch first.</p>

From Lincoln: James W. Hamilton, Judge. This is an action by Addie Graham against the Corvallis & Eastern Railroad Company, a corporation, to recover damages for personal injuries. From a judgment for $10,000 in favor of plaintiff, defendant appeals. The facts are set forth in the opinion of the court. Department 1.

From Multnomah.: Thomas J. Cleeton, Judge. la Banc. Statement by Mr. Justice Moore. This is a suit to enjoin the issue of county bonds.

<p>From Coos: Bobebt Gf. Morrow, Judge.</p> <p>This is a suit by Archie H. Bosa, Stephen Gallier, E. M. Gallier, Josephine Brener, Josephine Jacobson, Chris Beyerle, Minerva Lewin, Sarah Costello, Oscar Hendrickson and J. W. Felter, against the City of Bandon, James Mast, C. T. Lowe, E. B. Kausrud, C. B. Wade, Ed. Henry, C. E. Bowman, B. W. Windsor, Herbert Brown and 0. A. Trowbridge, to enjoin the collection of an assessment made by the City of Bandon for benefits accruing from the opening of a street. From a decree in favor of defendants, plaintiffs appeal. The facts are stated in the opinion of the court.</p> <p>In Banc.</p>

<p>Prom Multnomah: John P. Kavanaugh, Judge.</p> <p>In Bano. Statement Per Curiam.</p> <p>This is an action by W. E. Davidson against the Almeda Consolidated Mines Company. The facts are as follows:</p> <p>On the 31st day of March, 1913, a new trial was granted to the defendant in the Circuit Court for Multnomah County, setting aside a judgment in favor of the plaintiff. On October 14th of the same year the court made an order modifying the order granting the new trial by providing that, unless the defendant should tender the plaintiff $1,500 within 10 days, the new trial would be denied. This order was not entered on that date, but was made effective on the 13th of November, by a nwnc pro tunc order duly entered. On the 25th of October, and after the order of modification had been made, but before it had been entered, the parties by their attorneys made a written stipulation, which was filed in the case, extending the time of the defendant to make the tender of $1,500. On November 12th T. S. Burley, styling himself receiver of defendant company, filed a motion to set aside the order modifying the order of March 31st and to grant the new trial unconditionally. On the 16th of Pebruary, 1914, this motion was denied, and from this order said Burley has filed Bis appeal, which it is now moved to dismiss.</p>

<p>Pleading—Answer—Sufficiency of Denial.</p> <p>1. A denial in .the answer of specific paragraphs of the complaint by number is sufficient; no special form of expression being necessary so long as the matter denied is definite and certain.</p> <p>Pleading—Demurrer—Pleading Good in Part.</p> <p>2. Where an answer by denial puts in issue matters necessary for plaintiff to prove to entitle him to recover, and pleads further matter as a separate defense, a demurrer to the answer as a whole should be overruled.</p>

From Multnomah: George N. Davis, Judge. This is an action by George Chambers against the Everding & Farrell Company, a corporation, the C. C. Masten Logging Company, a corporation, C. C. Masten and T. G-. Farrell to recover damages for personal injuries. From a judgment for defendants, plaintiff appeals. Respondents file motion to dismiss appeal. Department 2.

<p>Constitutional Law—Impairing Obligation of Contracts—Charter of Corporation.</p> <p>1. Where a1 corporation was organized while Article XI, Section 2 of the state Constitution, provided that corporations might be formed under general laws, but should not be created by special laws except for municipal purposes, and that all laws passed pursuant to this section might be altered, amended, or repealed, but not so as to impair or destroy any vested corporate rights, and Sections 6679, 6683, L. O. L., authorized the formation of corporations to engage in any lawful enterprise, business or pursuit or occupation, and provided that the articles of the corporation should specify the name assumed by the corporation and the duration of the corporation if limited, act of February 20, 1913 (Laws 1913, p. 106), forbidding the use of the term “cooperative” as the corporate or business name or trademark unless the person, firm, association or corporation has complied with Sections 6766-6783, L. O. L., relating to co-operative associations, so far as it affects a corporation already organized, and using the term “cooperative” as a part of its name, impairs the obligation of a contract in violation of United States Constitution, Article I, Section 10, and Article I, Section 21 of state Constitution.</p> <p>Corporations—Regulation—Police Power.</p> <p>2. Act of February 20, 1913 (Laws 1913, p. 106), forbidding the use of the term “co-operative” as a business name unless the user has complied with Sections 6766-6783, L. O. L., is not, as applied to a corporation previously organized and using such term as part of its name, within the police power of the state.</p> <p>Constitutional Law—“Police Power”—What Constitutes.</p> <p>3. “Police power” extends to legislation, having for its objeet the promotion of the health, comfort, safety and welfare of society, but the rights of property cannot be invaded under the guise of protection when such is evidently not the purpose of the regulation.</p>

<p>Municipal Corporations—Enactment of Charter—Initiative and Referendum.</p> <p>1. Article XI, Section 2 of the Constitution, granting to the legal voters of every city and town power to enact and amend their charters, subject to the Constitution and criminal laws of the state, and Article IV, Section la, reserving to the legal voters of every municipality the initiative and referendum powers as to local, special, and municipal legislation, to be exercised according to general laws, except that cities and towns may provide the manner of exercising these powers as to municipal legislation, having been adopted at the same time, are to be construed together.</p> <p>Municipal Corporations—Enactment of Charter—Initiative and Referendum.</p> <p>2. Under Article IV, Section la of the Constitution, authorizing cities and towns to provide for the manner of exercising the initiative and referendum as to municipal legislation, they have power to provide the manner of enacting new charters.</p> <p>Mmiicipal Corporations—Enactment of Charter—Initiative and Referendum.</p> <p>3. An ordinance which shows by its title and emergency clause an intention to provide the mode of exercising the initiative and referendum in enacting a new charter, though the body of the ordinance provides only for charter amendments, is sufficient to authorize the enactment of a new charter, especially since Laws of 1907, page 398, under whieh the proceedings would be had in absence of the ordinance, itself fails to provide for adoption of a charter as distinguished from an amendment to the charter.</p> <p>Municipal Corporations—Ordinances—Construction.</p> <p>4. The rules for construing statutes usually apply to the construction of city ordinances.</p>

<p>Mechanics’ Liens—Waiver—Effect of Contractors’ Bond.</p> <p>1. A contractors’ bond, to indemnify the owner against any lien or claim for which the owner might become liable and whieh is chargeable to the contractors, to pay all indebtedness incurred by the contractors in carrying out the contract, and to complete the contract free from mechanics’ liens, does not operate as a waiver of lien of the contractors themselves.</p> <p>[As to stipulation in building contract against mechanics’ liens as precluding contractor from filing lien, see note in Ann. Cas. 1913E, 562.]</p> <p>Mechanics’ Liens—Right to Lien—Performance on Contract.</p> <p>2. Under Sections 725, 726, L. O. L., providing that the evidence shall correspond with the substance of the material allegations and each party shall prove his own affirmative allegations, where the contract alleged in a suit to foreclose a contractors’ lien provided for drainage from exterior moisture and seepage, which was omitted, and for an even and sufficient drainage to all floor drains and traps, while the floor as fashioned would not completely drain to the outlets, the lien will not be enforced, but the contractors will be remitted to their remedy at law.</p>

<p>Master and Servant—Injuries to Servant—Actions—Variance.</p> <p>1. Under Section 97, L. O. L., providing that no variance between pleading and proof shall be deemed material unless it has actually misled the adverse party to his prejudice, the variance being an allegation that a servant was engaged in filling siphon bottles, and was injured by the explosion of one of the bottles then being filled, and proof that the bottle which exploded had just been filled and placed upon a tray to be taken away was not material.</p> <p>Master and Servant—Injuries to Servant—Instructions—Unavoidable Accident.</p> <p>2. In an action for injuries to a servant, where the complaint alleged and the proof tended to show that the 'servant requested his employer to procure him a mask and gloves, which the employer failed to do, and that in working without them the servant was injured, and the instructions clearly excluded any recovery on account of injury, except from the failure to furnish a mask and gloves, and necessarily excluded any recovery on account of any aceident not occasioned by such negligence, an instruction that if the injury was unavoidable accident “under the circumstances of this case,” or could not have been prevented by reasonable care, the verdict should be for defendant was properly refused.</p> <p>Trial—Instructions—Assuming Facts.</p> <p>3. Where the injury sued for consisted partly in the wounding of a tendon of plaintiff’s hand by broken glass, and there was evidence that after laying off for several days he returned to work, but could not work without pain, and that the tendon broke one night while he was asleep, causing additional pain and suffering, an instruction that no evidence had been offered to prove that the second injury resulted from or was traceable to the first, and that the jury could not therefore allow any damages for the second injury, was properly refused, because it assumed that there was no evidence that the latter injury was referable to the former injury.</p> <p>Damages—Aggravation of Injuries—Question for Jury.</p> <p>4. In an action for an injury to a servant, consisting in part in the wounding of a tendon of his hand by broken glass, evidence held to present a question for the jury whether the servant’s resuming work aggravated the original injury to the extent of causing the breaking of the tendon.</p> <p>Damages—Master and Servant—Injury to Servant—Actions—Instruction—Measure of Damages.</p> <p>5. In an action for injury to the tendon of a servant’s hand by broken glass, where the evidence presented a question for the jury whether the subsequent breaking of the tendon was referable to the original injury, an instruction that if the verdict should be for plaintiff, it should be for such sum as would compensate him for the injury, and the injury would be the accident itself and the direct and natural consequence of it, apart from any other intervening cause, fairly placed the matter before the jury both as to the right of recovery and the measure of damages.</p> <p>[As to measure of damages for personal injuries, see note in Ann. Oas. 1913A, 1361.]</p> <p>Master and Servant—Injuries to Servant—Assumption of Risk— Statutory Provision.</p> <p>6. In an action under the Employer’s Liability Act (Laws 1911, p. 16) for injury to a servant, assumption of risk by the servant is not a defense.</p> <p>Master and Servant—Injury to Servant—Action—Questions for Jury.</p> <p>7. In an action for injury to a servant, engaged in filling siphon bottles, evidence held to present a question for the jury whether the use of gloves and mask to protect the servant was practical.</p>

From Multnomah: Thomas J. Cleeton, Judge. This is an action by William C. Doyle against the Portland Railway, Light & Power Company, a corporation, for damages on account of personal injuries received by reason of alleged negligence. A verdict was returned on which judgment was rendered in favor of the defendant, and plaintiff appeals. The facts are sufficiently stated in the opinion. Department 1.

<p>Equity—Answer—Administrator’s Failure to Deny.</p> <p>1. Under Section 95, L. O. L., providing that every material allegation of the complaint not specifically denied by the answer must for the purpose of the action be taken as true, an allegation in a complaint to determine adverse elaims that the plaintiff is the owner in fee simple, not denied by the answer, is admitted.</p> <p>Quieting Title—Bight to Belief—Possession of Plaintiff.</p> <p>2. In a suit to determine adverse claims, where the plaintiff’s allegation of ownership in fee simple is not denied, but defendant denies plaintiff’s possession and asserts his own possession, if plaintiff was in possession at the commencement of the suit, she is entitled to a decree, but not otherwise.</p> <p>Quieting Title—Evidence—Weight and Sufficiency.</p> <p>3. In a suit to determine adverse claims, evidence held to show that the tenant of defendant had yielded possession to the guardian of plaintiff, who took possession thereof for his ward, and then put the tenant in possession as keeper of the property for plaintiff.</p> <p>Quieting Title—Bight to Belief—Possession of Plaintiff.</p> <p>4. Acts of the defendant in a suit to determine adverse claims, several months after commencement of the suit, as to the possesssion of the property, are immaterial.</p> <p>Quieting Title’—Pleading—-Bight to Possession.</p> <p>5. Under Section 725, L. O. L., providing that evidence must correspond with the material allegations of the pleadings and be relevant to the questions in dispute, where defendant in a suit to determine adverse claims does not deny plaintiff’s allegation of ownership in fee simple, nor make any showing as to the right to possession, such right is in the plaintiff.</p> <p>Quieting Title'—Pleading—Equitable Estoppel.</p> <p>6. In a suit to determine adverse claims, where defendant does not deny plaintiff’s allegation of ownership in fee simple, he cannot claim that plaintiff, in procuring possession from defendant’s tenant by threat of suit before commencement of the suit at bar, comes into court with unclean hands.</p> <p>Landlord and Tenant—Title of Landlord—Estoppel of Tenant.</p> <p>7. When the owner of the paramount title, having a present right of possession of demised premises, demands posséssion, the tenant may yield possession to such owner, and is not then estopped to deny the title of the landlord.</p> <p>[As to estoppel of tenant to deny landlord’s title,, see note in 89 Am. St. Bep. -62.]</p>

Prom Lane: John S. Coke, Judge. This is an action by Marcus J. Netter and Max Wolf, partners doing business under the firm name of Klaber, Wolf & Netter, against J. M. Edmunson and M. J. Edmunson. Prom a judgment in favor of defendants, plaintiffs appeal. The facts are stated in the opinion of the court. Department 2.