Volume 73 — Oregon Reports

Motion to dismiss appeal denied and motion to supply record allowed. From Klamath: Henry L. Benson, Judge. This is an action by Hattie Boy Smith against the Algona Lumber Company, a corporation. From a judgment for the plaintiff, defendant appeals. Respondent moves to dismiss the appeal and appellant files motion to supply the record. Motion to dismiss denied and motion to supply record allowed.

Original proceeding in Supreme Court. This is an original proceeding by mandamus in wbicb tbe State, on the relation of Eugene E. Smith, is petitioner, against A. L. Barbur, as auditor of the City of Portland, is defendant. Tbe demurrer filed by tbe defendant was sustained and cause dismissed.

<p>Officers — Recall—Filing Petition.</p> <p>1. Under Article II, Section 18, of tbe Constitution, requiring a recall petition to be filed with tbe officer with whom a petition for nomination to the office should be filed, and requiring tbe same officer to order a special election, and Section 3364, L. O. L., providing that petitions for nomination for district attorneys, in districts consisting of a single county, shall be filed in tbe office of tbe Secretary of State, a recall election ordered by a county clerk of a district attorney for a single county pursuant to a petition filed with a county clerk and not with the Secretary of State is invalid; the constitutional provision being express and mandatory.</p> <p>Elections — Nominations—Filing Petition.</p> <p>2. Laws of 1913, Chapter 199, Section 2, amending Section 3340, L. O. L., providing that certificates of nomination for county offices and district offices within the county shall be filed with the county clerk, does not amend Section 3364, L. O. L., naming the place of filing of petitions for nomination.</p>

<p>Counties — County Board — Creation.</p> <p>1. Under Article VII, Section 12, of the Constitution, empowering the legislative assembly to provide for the election ef two members to sit with the county judge while transacting county business, or to provide a separate board for transacting such business, the legislative assembly had authority to create a board of county commissioners of Multnomah County, and, as attempted in Laws of 1913, page 768, Section 2, to name the person who should constitute the third member of that board to aet with two members previously elected pursuant to Section 2944, L. O. L.</p> <p>Counties — County Boards — Statutory Provisions.</p> <p>2. Article VII, Section 12, of the Constitution, empowering the legislative assembly to provide for the election of two members to sit with the county judge while transacting county business or to provide a separate board for transacting such business, is not affected by Article VH, Section 2, as amended (see Laws 1911, p. 7), providing that the judicial system shall remain as at present constituted till otherwise provided by law, and even if Section 12 became obsolete, the organic act not forbidding such acts, the legislative assembly may create a board of county commissioners for any county.</p> <p>Judges — Tenure of Office.</p> <p>3. Laws of 1913, page 769, attempting to appoint the county judge of Multnomah County a judge of the Circuit Court, being void, and the judge not having resigned, he remained the de jure county judge.</p> <p>Judges — Term of Office — Constitutional Provisions.</p> <p>4. Under Article VII, Section 1, of the Constitution, adopted November 8, 1910 (see Laws 1911, p. 7), providing that the judges of the supreme and other courts shall be elected for a term of six years, and Article II, Section 14, fixing the first Monday in January after each general election as the date of commencement of the terms of all officers, the term of a county judge elected November 8, 1910, extends six years from the first Monday in January, 1911.</p> <p>Judges — Validity of Acts! — County Judge.</p> <p>5. Laws of 1913, page 769, appointing the county judge of Multnomah County a judge of the Circuit Court, being void, and the judge continuing as de jure county judge, all orders, judgments and decrees by him are valid and binding as to matters in probate and guardianship proceedings.</p> <p>Judges — Validity of Acts — Circuit Judge.</p> <p>6. Under Section 939, L. O. L., as amended by Laws of 1911, page 427, authorizing Circuit Court judges to sit as county judges in certain cases, and Section 799, subdivision 15, L. O. L., declaring the disputable presumption that official duty has been regularly performed, the judgments and decrees of judges of the Circuit Court as to matters exclusively within the jurisdiction of the County Court of Multnomah County are valid and binding.</p> <p>Judges — Authority—De Facto Judges.</p> <p>7. Where a department of the Circuit Court was organized in Multnomah County pursuant to Laws of 1913, page 769, appointing the county judge a Circuit Court judge for such department, and the act was declared void, the judge was acting as a de facto judge, and all orders, judgments and decrees by the judge in the Circuit Court, whether of his own or another county, are valid and binding upon all parties unless his authority was duly challenged before any determination.</p> <p>[As to who are de facto officers, see note in 19 Am. Dee. 63. As to validity of appointment by de facto officer, see note in Ann Cas. 1913C, 1042.]</p>

<p>From Multnomah: Thomas J. Cleeton, Judge.</p> <p>This is an action by John Isaacson, a minor, by Oscar Matson, his guardian ad litem, against the Beaver Logging Company, a corporation, to recover damages for a personal injury alleged to have been caused by the defendant’s negligence. From a judgment for the plaintiff in the sum of $1,200, the defendant appeals. The facts are stated in the opinion</p> <p>of the court.</p>

From Multnomah: David R. Parker, Judge. This is an action by M. C. Beaver, administrator of the estate of Don Beaver, deceased, against Mason, Ehrman & Company, a corporation, to recover damages for injuries resulting in the death of plaintiff’s intestate. From a verdict and judgment in the sum of $7,500, for plaintiff, defendant appeals. The facts are disclosed in the opinion of the court.

From Wasco: William L. Bradshaw, Judge. In Banc. Statement by Mr. Justice Moore. This suit was commenced April 11, 1913, by William D. Richards against A. W. Mohr and Levi Chrisman, to compel the acceptance of a sum of money in full payment of taxes'levied on real property and to .enjoin the sale of the premises.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Moore. This is a proceeding supplemental to an execution, to compel the surrender of a promissory note in order that the proceeds thereof might be applied on account of a judgment. From affidavits filed on behalf of the plaintiff, Dan Blackford, it appears that he secured a judgment against the defendants, G-ussie M. Boak, Walter Boak and John Bidenour.

<p>Release — Definition.</p> <p>1. A “release” is a relinquishment, concession or giving up of a right, claim or privilege, by the person in whom it exists Or to whom it accrues, to the person against whom it might have been demanded or enforced.</p> <p>Release — Formal Requisites — Seal.</p> <p>2. Under ‘Section 778, L. O. L., providing that an agreement in writing without a seal in the compromise or settlement of a debt or controversy is as obligatory as if a seal were affixed, a release is effective without a seal, though one was necessary at common law.</p> <p>[As to seal as imparting consideration, see note in Ann. Cas. 1913A, 365.]</p> <p>Release — Operation and Effect.</p> <p>3. A valid release completely discharges and extinguishes all rights and claims of the releasor against the releasee that are covered by the release.</p> <p>Release — Construction and Operation — Particular Provisions.</p> <p>4. Under Section 715, L. O. L., providing that in the construction of an instrument the office of the judge is simply to ascertain and declare what is, in terms or substance, contained therein, not to insert what has been omitted, or omit what has been inserted, and Section 716, providing that in the construction of contracts the intention of the parties is to be carried out if possible, a release' by a broker to other brokers, in consideration of the payment of a certain commission by the principal of all obligations to pay the rele'asor commissions they may receive from the principal, as well as all other obligations arising out of the transaction, or otherwise prior to the date of the release, was an adjustment of all matters up to the date of its execution barring any action or suit for commissions or for anything done prior to the execution of the release, and it was a settlement as to the amount to be paid to the releasor in the event of sale under the option of sale then granted by the principal.</p> <p>Release — Construction and Operation.</p> <p>5. The rule for construing a release is the' same in equity as it is in law.</p> <p>Release — Construction.—Scope and Extent.</p> <p>6. Where plaintiff, a broker, in consideration of the agreement of the principal to pay him a certain commission on a sale of land, if completed under the terms of an option then granted by the' principal, released the defendant brokers, with whom he had been associated, from all claims for commissions arising prior to the' date of the release or from the sale under the option, but the land was not sold under the option, but the defendant, with the aid of other brokers, made a sale several months later, plaintiff is not entitled to recover a share of the commissions received by defendants from the purchasers.</p> <p>[As to when a broker becomes entitled to a commission, se'e note in 28 Am. St. Rep. 546.]</p>

From Douglas: James W. Hamilton, Judge. This is a suit by George F. Felts against James D. Boyer and Harriet Boyer, his wife. From an order denying an application to vacate a decree entered by default, and to permit W. F. Thomas to be substituted as defendant, with permission to answer, defendants appeal.

Original proceedings in Supreme Court. Statement Per Curiam. This is an original proceeding commenced in this . eourt by the state on the relation of John McCourt and others, for the disbarment of Robert G. Smith for willful deceit and misconduct in his profession as an attorney at law. He is a member of the bar of this court, residing and practicing his profession at Grants Pass, Oregon.

From Marion: William Galloway, Judge. This is a suit for an injunction by S. G. Sargent, Superintendent .of Banks of the State of Oregon, against the Oregon Savings & Loan Company, a corporation. The Circuit Court rendered a decree for the defendant on demurrer, and plaintiff'appeals.

From Columbia: James A. Eakin, Judge. This is a suit by Louis Beirl against Columbia County, W. A. Harris, as county judge, A. E. Thompson, as sheriff and tax collector, and John Farr and Louis Fluhrer, as county commissioners. From a decree in favor of defendants, plaintiff appeals.

From Linn: William Galloway, Judge. Statement of Mr. Justice Moore. This is a suit by tbe Postal Telegraph Company, a Corporation, against Georgiana Forster, M. L. Forster and Bessie S. McDonald, to enjoin interference with an easement.

From Multnomah.: George 1ST. Davis, Judge. Statement by Mr. Justice Burnett. This is an action by Boss O. Barnes against Saul Silverfield to recover damages for malicious prosecution. The substance of the complaint, in which there are two counts, is that the defendant maliciously and without probable cause procured a justice of the peace to issue a warrant on a complaint charging the plaintiff here with the larceny of two mink skins, upon which precept he was apprehended.

Statement by Mr. Justice Bean. Tbis is an action by Joseph. P. McClangherty against the Rogue River Electric Company, a corporation, brought under the Employers’ Liability Act, Chapter 3 (Laws 1911, p. 16), to recover $25,000 damages for the death of plaintiff’s son, alleged to have been caused by defendant’s negligence. The jury returned a verdict for $12,500. The court entered judgment thereon, from which defendant appeals.

<p>Equity — Equitable Defenses to Legal Action — Cross-bill—Dismissal.</p> <p>1. Under Section 390, L. O. L., providing that complaints in equity in the nature of a cross-bill shall stay the proceedings at law, after the suit in equity has been dismissed the plaintiff in the action at law may proceed with his action, e'ven though an appeal from the dismissal of the equity suit is pending.</p> <p>[As to nature and objects of cross-bills, see note in 83 Am. Dec. 251.]</p>

From Multnomah: William N. Gatens, Judge. This is an action commenced by Margaret Burns against H. C. Burns and Mary L. Burns. On the death of plaintiff, her executor, D. R. McCann, was substituted as plaintiff. From a judgment for plaintiff, defendants appeal. The facts are fully set forth in the opinion of the court on the merits. Respondent moves to dismiss the appeal.

From Tillamook: James U. Campbell, Judge, Statement by Mr. Justice Eakin. One C. B. Hadley, a resident of Tillamook County, Oregon, died December 7, 1911.

From Linn: Percy R. Kelly, Judge. This is an action by the First National Bank of Albany, a corporation, against J. M. Hawkins, George H. Crowell and J. C. Holbrook, in which plaintiff recovered judgment and defendants appeal.

From Multnomah: Henry E. McGinn, Judge. This is an action by Andrew Weishaar against D. E. Pendleton, ¥m. S. Flynn and N. F. Canavan, appellants, and Thos. Edgar, J. Susee and Jake Cole, to recover the amount due on a promissory note. There was a judgment for plaintiff and the defendants Pendleton, Flynn and Canavan appeal. The facts are set out in the opinion of the court.

<p>Railroads—Fires—Evidence—Dead Coals.</p> <p>1. In an action for fire set by sparks from defendant’s locomotive, evidence of the finding of dead coals along the railroad track in the neighborhood of the fire, in connection with testimony that the locomotive elaime'd to have caused the fire was emitting sparks and that the fire occurred shortly after passing of that engine, is admissible.</p> <p>[As to liability of railroad companies for fires when caused by sparks or coals from locomotives, see notes in 38 Am. Dec. 70; 78 Am. Dee. 185; 6 Am. Rep. 597.]</p> <p>Railroads—Fire—Evidence—Other Fires.</p> <p>2. In an action for fire set by sparks from defendant’s locomotive, evidence of other fires at about the time of the fire' in question is admissible to show want of reasonable care.</p> <p>Railroads—Fires—Assumption of Risk.</p> <p>3. Land owners adjoining and adjacent to the railroad do not assume the risk of fires caused by the railroad company’s negligence.</p> <p>Trial—Instructions—Grounds—Cure by Other Instructions.</p> <p>4. In an action for fire set by sparks from defendant’s locomotive, an instruction that property owners adjoining a railroad right of way assume the risk of injuries unavoidably produced by fires started without negligence is sufficiently covered by a general instruction placing the burden of proof on plaintiff to show that the fire was caused by the negligence of defendant.</p> <p>Trial—Instructions—Cure by Other Instructions.</p> <p>5. In an action for fire set by defendant’s locomotive, an instruction that it is the duty of the railroad to adopt the most approved appliances is cured by other instructions making it the duty of the railroad to use reasonable diligence in procuring the most improved appliances, etc.</p>

<p>Bridges—Injuries to Persons—Elements of Recovery—Liability of County.</p> <p>1. Under Section 6375, L. O. L., declaring that whenever any individual, lawfully traveling upon a highway or a bridge, part of a legal road, shall without contributory negligence on his part, and without knowledge of the defect, sustain injury by the defective condition of the highway or bridge, he may recover from the county, plaintiff must, as a condition to recovery, show that he was lawfully traveling upon the highway, that he was injured by a defeet therein, that his own negligence did not contribute to the injury, and that he was ignorant of the defect.</p> <p>Bridges—Persons Lawfully upon—Injuries.</p> <p>2. Where the bridge upon whieh the injury to plaintiff’s intestate occurred was part of the highway upon whieh such intestate was traveling, she was lawfully upon the bridge when she was hurt.</p> <p>Negligence—Degree of Care—Infants.</p> <p>3. An infant is required to exercise that degree of care to avoid personal injury which a child of his age, knowledge’ and mental capacity is reasonably capable of.</p> <p>Trial—Instructions—Errors.</p> <p>4. In an action for injuries to a traveler on a highway who stepped through a hole in a bridge, that portion of a charge, making the traveler’s freedom from contributory negligence a condition of recovery, which informed the jury that if a person is absorbed in thought, having a right to presume that a highway and bridge is reasonably safe, he is not bound to direct his whole' attention to the defects, is not erroneous, when taken in connection with other portions of the same charge informing the jury that a traveler has to exercise sueh care as an ordinarily prudent person will exercise.</p> <p>Highways—Traveler—Duty of Care.</p> <p>5. As it is the' duty of the officers of a county to see that highways open for travel are reasonably safe, a traveler on a public road may rely upon the presumption that such officers have discharged their duty and, when addressed by a person in his rear, may turn his head toward the speaker to give attention to what is said.</p> <p>Bridges—Actions for Injuries—Evidence—Jury Question.</p> <p>6. In an action for the wrongful death of a child resulting from an injury received while crossing a defective bridge, the question of the child’s contributory negligence held under the evidence for the jury--</p> <p>Death — Actions—Pleading—Theory of Action.</p> <p>7. In an action for the wrongful death of a child, due to an injury to her leg while upon a defective bridge, the answer of the county alleged that the! injury, which was considered slight, was not treated by a physician, and that the parents of the child allowed her to play about in the usual manner, so that her clothing irritated the injury, whieh by reason of the filthy condition of her leg and clothing became' infected. Counsel for the county stated, while cross-examining the child’s mother, that they were trying the case upon the theory that the negligence of the parents was an element. Held that, as the court accepted that view, there was no error in excluding evidence of the unsanitary condition of the child’s home offered on the theory that it was an intervening cause, particularly as the court charged that for plaintiff to recover the jury must find the injury on the bridge was the primary cause of the child’s death.</p> <p>[As to aggravation of injuries by medical treatment, see note in 50 Am. Eep. 603.]</p> <p>Negligence — Imputed Negligence — Contributory Negligence of Parents of Deceased Child.</p> <p>8. In an action by an administrator to recoven for the death of his intestate, a minor child, negligence of the parents of the child in failing to properly care for her after the injury is not imputable to the child..</p> <p>[As to imputed negligence, see note in 110 Am. St. Eep. 278.]</p>

<p>Criminal Law — Grounds for Reversal — Refusal of Instruction — Corroborative Testimony.</p> <p>1. A conviction of larceny on tbe testimony of an accomplice will be reversed on appeal, where the trial court has refused a requested instruction in the language of Section 1540, L. O. L., on the degree of evidence required to corroborate the testimony of an accomplice, and has failed to use language of similar import in the general charge.</p> <p>[As to convicting on testimony of accomplice, see notes in 71 Am. Dec. 671; 34 Am. Rep. 408; 98 Am. St. Rep. 158.]</p> <p>Criminal Law — Instructions—Evidence.</p> <p>2. In a prose'eution for larceny, an instruction that when other corroborating evidence has been offered, “as in this case,” it was for the jury to determine the weight to be given the testimony of the accomplice was erroneous, as stating that corroborating evidence had been received; the determination of whether or not evidence offered for that purpose corroborates the testimony of an accomplice being exclusively for the jury.</p>

<p>Municipal Corporations—Torts—Governmental Capacity—Ministerial Duties.</p> <p>E No liability attaches to a municipality for the aets or omissions of its officers acting in good faith while performing governmental functions, Dut liability does attach for negligent acts of its officers or agents in performing private ministerial duties pertaining to its private corporate purposes.</p> <p>[As to liability of a municipality for negligence or other misconduct of its officers and agents, see note in 30 Am. St. Rep. 376.]</p> <p>Municipal Corporations—Maintenance of Streets—Liability for Negligence—Governmental Functions.</p> <p>2. In the actual construction and maintenance of streets and sidewalks, the city, acting by servants employed by its officers with the' authority of tie city, is engaged in a purely ministerial duty, and is liable for acts or omissions of such officers or employees in improperly building a sidewalk and knowingly failing in its duty to keep the same in a reasonably safe condition for travel: Section 358, L. O. L.</p>

From Grant: Dalton Biggs, Judge. Statement by Mr. Justice Bean. This is an action by the State of Oregon on relation of S. R. Birdwell and Herman Kuhl, against William Hall, G. T. Meador and H. O. Meador, substituted for William Hall, A. B. Carlson, R. L. Dearforff and L. B. Parsons, to oust the defendants from their respective offices as directors of Union High School District No. 1 of Grant County, Oregon, and to annul the organization of the district.

From Wasco: William L. Bradshaw, Judge. Statement by Mr. Justice Eakin. Tbis is a suit by French & Company, a corporation, against George Haltenboff and Frances Haltenhoff, to collect a note and foreclose a mortgage securing the payment of the same. The note is for the sum of $3,000, dated November 22, 1910, due on or before five years from date, and made payable to the Washington-Oregon Investment Company.

From Baker: Gustav Anderson, Judge. Statement by Mr. Justice Burnett. This suit was commenced January 3, 1914, by William Wiegand against Oswald West and others. After alleging himself to be licensed by the local authorities and by the government of the United States for the conduct of retail liquor business in Copperfield, Baker County, Oregon, the plaintiff alleges: “II.

From Marion: William Galloway, Judge. Statement by Mr. Justice Burnett. This is a suit by L. M. Bitney and J. J. Stangel against Byron J. Grim, Thurston Grim, G. W. Dimick and Marion County, a public corporation, to quiet title to a tract of 19.72 acres of land in Marion County.

<p>Easements — Prescription—Requisites—“Adverse Use.”</p> <p>1. The “adverse use” which will give title by prescription to- an easement of way must be continued for the prescriptive period, must be adverse, under a claim of right, exclusive and uninterrupted, and with the knowledge and acquiescence of the owner of the servient estate; and where the use is merely permissive no way by prescription can be acquired.</p> <p>[As to acquisition of easement by adverse use, see note in 11 Am. Dee. 663.]</p> <p>Easements — Action for Injunction — Evidence—Prescription.</p> <p>2. In an action to enjoin defendant from trespassing upon and traveling across plaintiff’s land, between his own land and a highway, evidence held to show that defendant’s right to cross was merely permissive, amounting to nothing more than a revocable license.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. Two actions were commenced by Edward H. Smith against John W. Hurley. From a judgment in favor of the plaintiff for $8,150, the defendant appeals.

From Multnomah: Henry E. McGinn. Statement by Mr. Justice Eakin. This is an action by Edward L. Matthews against the Travelers’ Insurance Company, upon an accident policy of insurance. The question involved is whether or not the policy was renewed. Plaintiff suffered an accident by the loss of an eye between December 22d and March 22d. He had obtained an accident policy on June 22d for three months, and renewed it on September 22d for an additional three months.

<p>New Trial — Proceedings to Procure — Order.</p> <p>- 1. Since an order granting a new trial is appealable, the court, in granting a new trial, should state upon what grounds it was granted.</p> <p>New Trial — Grounds—Want of Evidence.</p> <p>2. Under Article VII, Section 3, of the Constitution providing that no fact tried by a jury shall be otherwise re-examined in any court, unless the court can affirmatively say there is no evidence to support the verdict, a verdict can be set aside for want of evidence only when the eourt can affirmatively say that there is no evidence to support it.</p> <p>Evidence — Weight and Sufficiency.</p> <p>3. In order that a verdict may be supported by the evidence, there must be some legal evidence tending to prove every material fact in issue, as to which the prevailing party has the' burden of proof.</p> <p>Negligence — Actions—Pleading.</p> <p>4. In actions for negligence, the complaint must state the negligent acts or omissions constituting the cause of the action.</p> <p>Appeal and Error — Review—Questions of Fact.</p> <p>5. In determining whether there was legal evidence to support a verdict, where the complaint alleged, as the negligent acts of defendant, the high and dangerous speed of its train, the failure of employees to give plaintiff warning of its approach, and the’ failure to ring the bell or blow the whistle as it approached plaintiff, the Supreme Court can consider no other negligent acts or omissions.</p> <p>Railroads — Operation — Injuries to Persons on Track — Issues and Proof.</p> <p>6. Under Section 725, L. O. I»., providing that the evidence shall correspond with the substance of the material allegations and be relevant to the questions in dispute, and collateral questions shall be avoided, where a complaint for injuries to a track-walker alleged, as the negligent acts and omissions of the railroad, the high and dangerous speed of its train, the failure to give warning, and the failure to ring a bell or blow a whistle, evidence of failure to keep a lookout, to see plaintiff on the track, or to stop the train before it reached him was irrelevant.</p> <p>Railroads — Operation—Injuries to Person on Track — Evidence.</p> <p>7. Evidence that a train was run at 20 miles an hour in a rural district, not near a sharp curve or crossing, where the rules of the railroad permitted a speed not exceeding 60 miles an hour, in the absence of any law or rules of the state regulating the speed of trains in the locality, is insufficient to show negligence.</p> <p>Railroads — Operation—Injuries to Person on Track — Care Required.</p> <p>8. In the absence of any law, rule or custom in the state where an accident occurred requiring it, a railroad is under no duty to a track-walker in a rural district, not near a crossing or sharp curve, who heard the approach of the train, to ring a bell or blow a whistle.</p> <p>Railroads — Operation—Injuries to Person on Track — -Burden of Proof.</p> <p>9. In an action for injuries to a track-walker, the burden is on. plaintiff to make out a prima facie case of negligence of the railroad.</p> <p>Railroads — Operation—Injuries to -Person on Track — Assumption of Risk.</p> <p>10. An experienced track-walker on a railroad, on accepting employment, assumes the risk of injury ordinarily incident to the work, even from the passing of trains of a railroad other than his employer.</p> <p>[As to duty of person working on track to look out for and avoid passing trains, see note in Ann. Cas. 1913A, 440.]</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett.

Prom Multnomah: Henry B. McGinn, Judge. This is a proceeding by David Brown and others for writ of review to determine the regularity of proceedings of the common council of the City of Portland in making a reassessment for street improvements. From a judgment sustaining the reassessment, plaintiffs appeal.

From Linn: William Galloway, Judge. This is a suit by Martha Houston against Orpha Greiner (formerly Orpha Henningsen) to set aside a deed to defendant to certain lands in Linn County. From a decree in favor of plaintiff, defendant appeals. The facts are fully set forth in the opinion of the court.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Eakin. This is an action by P. M. Becker against D. R. McKenzie. On January 31, 1913, plaintiff executed to defendant a chattel mortgage on 86 sacks of timothy-seed. The mortgage fell due on Sunday, March 30th, and on the morning of the following day defendant demanded his money, and plaintiff started out to raise it.

From Umatilla: Gilbert W. Phelps, Judge. Statement by Mr. Justice Bean. This is a suit by N. Dellwo against S. A. Edwards for an accounting. A decree was rendered in the Circuit Court in favor of the defendant for the sum of $1,590.80. The controversy arose out of the following transaction: On November 30, 1908, plaintiff Dellwo leased to defendant Edwards 1,230 acres of land in Umatilla County for the purpose of raising grain thereon.

From Jackson: Frank M. Calkins, Judge. Statement by Mr. Justice Burnett. The defendant, E. G. Brown, was indicted for selling intoxicating liquor to a minor.

Original proceedings in Supreme Court. This is an original disbarment proceeding by the State, on relation of Clarence H. McLaughlin, against Robert O. Graves. Defendant suspended from practice for three months.

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Chief Justice McBride.

From Multnomah: Thomas J. Cleeton, Judge. This is an action by Otto W. Nelson against Mike Dowgiallo. From a judgment in favor of plaintiff, defendant appeals. The facts are set forth in the opinion of the court.

<p>From Multnomah.: John P. Kavanatjgh, Judge.</p> <p>Statement by Mr. Justice Bub-nett.</p> <p>This is a suit by Mary Hamm against Gertrude McKenny, Line McKenny, Maria Prothero, "William Prothero, Annie Lee, William Y. Lee, Daisie Grimm, Ed. Grimm, Minnie Moore, Benjamin Pelcher, Alice May Bolán, Eva Milan, Herbert Milan, Howard Milan, and also all other persons or parties unknown to quiet title in which the plaintiff alleges that she is the owner and in possession of certain real property in which the defendants claim an estate adverse to the plaintiff, but without any right whatever.</p> <p>Denying the plaintiff’s assertion of ownership, the defendants admit that they claim an interest in the realty in question amounting to a cloud upon the plaintiff’s estate. They claim to deraign title from their ancestor, S. W. Milan, who with his wife executed a mortgage on the premises and afterward died, leaving children, some of whom are defendants here, the remaining defendants being either descendants of deceased children of the original mortgagor or related to them by marriage. They trace the history of a foreclosure suit based upon the mortgage mentioned and resulting in a sale of the premises, but they contend that the proceedings were so defective that plaintiff is no more than a mortgagee in possession. They pray for a decree adjudging them to be the owners iu fee of the property, and pray that the court allow them to redeem the same from the mortgage and order a sale of the premises for that purpose.</p> <p>The new matter in the answer is traversed in many particulars, and the plaintiff affirmatively replies that:</p> <p>■ “She has been in the open, notorious and adverse possession of said property, claiming to own the same for more than 10 years last past.”</p> <p>From a decree in favor of the plaintiff quieting her title to the property, the defendants appeal.</p>

From Multnomah: Robert G-. Morrow, Judge. This is a suit by James A. McCarty against Louis Helbling and Oscar Barnes to enforce the specific performance of a contract for sale of real property. From a decree in favor of defendants, plaintiff appeals. The facts are set forth in the opinion of the court.

From Wallowa: James W. Hamilton, Judge. The defendant, Labin J. Selby, was convicted of assault with a dangerous weapon, and he appeals. The facts are fully set forth in the opinion of the court.

<p>Principal and Agent—Powers of Agent—Construction.</p> <p>1. When authority is conferred on an agent by power of attorney, general words in the instrument are to be construed as restricted by the context, and no authority can be considered given except such as is actually used or is necessary to execute the powers conferred.</p> <p>[As to interpretation of power of attorney, see note in 33 Am. St. Rep. 593.]</p> <p>Principal and Agent—Powers of Agent—Special Agency.</p> <p>2. Where a power of attorney authorized the principal’s agent to execute a described promissory note and a deed of trust to secure it, but made no attempt to confer general powers to do such acts, it is a special power.</p> <p>Principal and Agent—Powers of Agent—Incidental Powers.</p> <p>3. A special agent, like a general agent, has by implication all •powers necessary for or incident to the proper execution of his duties.</p> <p>Principal and Agent—Special Agents—Execution of Powers.</p> <p>4. The authority of a special agent must be strictly pursued, and those who deal with him must at their peril determine the extent of his authority, as he cannot bind his principal by acts outside of the scope of his agency.</p> <p>Principal and. Agent — Powers of Attorney — Execution — Validity of Act.</p> <p>5. Where a power of attorney authorized the execution of a note for $5,000 payable on or before one year after date, with interest at 6 per cent per annum, the agent is not authorized to execute two notes amounting to $5,000 with interest payable semi-annually and containing a provision that in ease of default the notes should become immediately due.</p> <p>[As to proper method of execution and acknowledgment of instrument by attorney in fact, see note in Ann. Cas. 19131), 102.]</p> <p>Principal and Agent — Acts of Agent — Ratification.</p> <p>6. One who relies on a ratification of the unauthorized acts of an agent has the burden of proving it; hence, where ratification was claimed by the principal’s appropriation of the fruits of the ageney, the party asserting ratification has the burden of establishing the principal’s acceptance.</p>

From Union: John W. Knowles, Judge. Statement by Mr. Chief Justice McBride. This is an action by tbe Pacific Livestock Company, a corporation, against George T. Cocbran.

<p>From Baker: Gustav Anderson, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action by W. L. Patterson, as trustee in bankruptcy of tbe estate of Mrs. George W. Mutcb (Julia A. Mutch), a bankrupt, against the Baker Grocery Company, a corporation, to recover from a creditor of the estate the proceeds of property sold upon execution issued upon a judgment which it is alleged was suffered by the bankrupt while insolvent, and secured by the creditor whose agent had reasonable cause to believe that by the legal proceedings thus employed it was intended thereby to gain a preference. The facts are: That Mrs. Julia A. Mutch, on December 1, 1912, began conducting at Huntington, Oregon, a general merchandise business under the name of George W. Mutch & Co. She personally had charge of the store until July, 1913, but thereafter two clerks employed by her carried on the trade until September of that year, when J. E. Paul agreed with her to take at cost price the goods in the store, pay the creditors’ demands, and if, after disposing of the property, any sum of money remained, to give it to Mrs. Mutch. An invoice was thereupon taken, and it was found that the value of the merchandise and fixtures was $2,833.43, and the amount of the bills receivable that were considered collectible was $219.80, making $3,053.23, and the sum due the creditors was $3,055.17, thus showing the liabilities to have been, as then estimated, $1.94 in excess of the assets. Mr. Paul thereupon took charge of the store, and on September 23, 1913, pursuant to Sections 6069 and 6070, L. O. L., as amended by Chapter 281, General Laws of Oregon of 1913, gave to the several creditors written notice that five days thereafter .he proposed to purchase the entire' stock of goods, wares and merchandise of the George W. Mutch Company, to assume the indebtedness thereof, to pay the same as soon as possible, and to conduct the business at the same place under the name of J. E. Paul Company. Mrs. Mutch, supposing the bargain had been concluded, thereupon moved to Payette, Idaho. Nearly all the creditors objected to the contemplated sale of the goods to Paul, who immediately notified the creditors that he abandoned the proposed purchase after conducting the business a few days. The possession of the store was thereupon surrendered to Mrs. Mutch’s agent, who had been appointed upon the recommendation of the Baker Grocery Company, a corporation. Prom the sale of goods while conducting the business, Paul paid to the defendant herein $119.14, the remainder after deducting the expenses incurred during the time. Mrs. Mutch’s agent in charge of the store having been informed by a representative of her creditors that, unless a pro rata division of the proceeds of the sale of goods were made on account of her store indebtedness, legal proceedings would be' instituted to compel such liquidation, the defendant herein, as plaintiff, began an action in the Circuit Court of the State of Oregon for Baker County against her to recover the sum due it. A writ of attachment in that action was issued, pursuant to which the goods in the store were seized October 1Ó, 1913. Mrs. Mutch, at the request and upon the recommendation of an agent of the Baker Grocery Company, engaged an attorney, who interposed a demurrer to the complaint in the action; but, thereafter consenting that the demurrer might be overruled, he declined further to plead or answer, whereupon judgment was rendered against her October 14,1913, for $874.44, with interest and $51 as the costs and disbursements, and it was also adjudged that the property attached should be sold to satisfy the sum so awarded. Based on the judgment, an execution was issued pursuant to which the goods, etc., were sold October 25,. 1914, to P. S. Bubb for $920, of $45.34 less than the amount specified' in the writ and the additional expenses incurred in making the sale. Mrs. Mutch, on a voluntary petition therefor, was adjudged a bankrupt January 24, 1914, by the District Court of the United States for the District of Oregon, and the plaintiff herein, W. L. Patterson, was appointed trustee of the bankrupt’s estate, and, having duly qualified as such, by leave of court commenced this action, which resulted in a judgment in his favor for the sum received upon a sale of the goods under the execution, and the defendant appeals.</p>

Original proceeding in Supreme Court. This is an original proceeding by the State on the relation of the Warren Construction Company a corporation, for a writ of mandamus against F. R. Beals, as mayor, John Aschim, as recorder, N. J. Myers, as marshal, Mark Harrison, as treasurer, and John Keldson, George Edmunds, George Lamb, S. A. Brodhead and M. Melchior, as members of the common council of Tillamook City, a municipal corporation in the State of Oregon.

From Multnomah: John P. Kavanaugh, Judge. The defendant, T. J. Leonard, was indicted, tried and convicted of obtaining the signature of two persons to a deed of conveyance by false pretenses, and sentenced to imprisonment in the penitentiary for not less than one nor more than five years, and he appeals.

From Marion: William Galloway, Judge. Statement by Mr. Justice Burnett. Tbe suit of tbe Pacific Title & Trust Company, a corporation, and tbe Oregon Realty & Trust Company, a corporation, against S. G. Sargent, superintendent of banks of the State of Oregon, and A. M. Crawford, Attorney General, was consolidated by consent of the parties, the questions in each being practically the same.

From Morrow: Gilbert W. Phelps, Judge. This is a suit for an accounting by F. M. Templeton against Charles Bockler. From a decree in favor of defendant, plaintiff appeals. The facts are set forth in the opinion of the court.

From Baker: Gustav Anderson, Judge. Statement by Mr. Justice Eakin. This is an action by Boy E. Cameron, against tbe Pacific Lime & Gypsum Company, a corporation, for personal injuries. The defendant was the owner and operator of a plaster-mill for milling a product of gypsum rock; the rock being subjected to great heat and reduced to a powder.

<p>Constitutional Law—Adoption of Constitution—Effect of Prior Law— Initiative Charter-—Liability to Suit.</p> <p>1. Article IY, Section la, of the Constitution, confers the initiative and referendum powers upon the legal voters of every municipality, and Article XI, Section 2, empowers the legal voters of every city to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon. Article I, Section 10, of the Constitution, provides that every man shall have remedy by due course of law for injury to his person, property, or reputation. Section 358, L. O. L., gives a right of aetion against public corporations, except counties, for injury to the rights of the plaintiff arising from some act or omission of the public corporation. The principle of this act was in force when the Constitution was adopted. Eeld, that the remedy given by Section 358, L. O. L., was comprehended within Article I, Section 10, and therefore the power of a municipality to adopt its charter under the initiative was subject to such right of action.</p> <p>Constitutional Law—Construction—Different Sections.</p> <p>2. The different sections of the Constitution must be construed together.</p> <p>Municipal Corporations—Actions Against City—Charter Provisions.</p> <p>3. The provisions of the charter of La Grande that the city may sue and be sued, plead and be impleaded, defend and be defended in all courts of justice and in all actions, suits or proceedings embrace the right to bring any aetion against the city that could have been brought under the law as it existed at the adoption of the charter.</p> <p>Municipal Corporations—Legislative Control—Initiative Charter.</p> <p>4. By granting to the people of a municipality the power to enact and amend their charter and local laws, the state did not surrender its sovereignty as to such municipalities, but in matters of general concern and those beyond the boundary of the municipalities, the cities are amenable to the general law.</p> <p>Municipal Corporations—Waterworks System—Liability—Negligence.</p> <p>5. A city waterworks system, operated by the city for profit, belongs to it in its proprietary, not governmental, capacity, and the city is liable for negligence in the construction or maintenance thereof.</p> <p>[As to liability of municipality for negligence or misconduct of officers or agents, see notes in 53 Am. Dee. 320; 30 Am. St. Bep. 37.6.]</p> <p>Appeal and Error — Harmless Error — Instructions—Cure by Verdict.</p> <p>6. Error in instructing the jury as to contributory negligence and assumption of risk in an action under tbe Employers’ Liability Act (Laws 1911, p. 16), is not prejudicial to plaintiff, where the instructions directed a verdict for defendant if the jury found either contributory negligence or assumption of risk and the jury rendered a verdict for plaintiff.</p> <p>Appeal and Error — Review—Verdict.</p> <p>7. The. amount of damages awarded by the jury will not be reviewed, where no exceptions were taken to the rulings or instructions as to the measure of damages, especially under Article VII, Section 3, of the Constitution, providing that no fact tried by a jury shall be otherwise re-examined in any court unless the court can affirmatively say there was no evidence to support the verdict.</p>

From Tillamook: Webster Holmes, Judge. Statement by Mr. Chibe Justice McBride. This is an action by C. E. Reynolds against J. W. Vint and G-.

<p>Landlord and Tenant — Assignee of Lease — Liability to Lessor.</p> <p>1. The assignee of a lease becomes personally liable to the lessor to fulfill all the obligations of the' lease, for the whole term, even though he does not take possession, and cannot release himself from liability without consent of the lessor.</p> <p>Landlord and Tenant — Action for Rent — Assignee of Lease — Prima Facie Case.</p> <p>2. A prima facie case of defendant’s liability to plaintiff for rent as assignee of a lease is made by proof of plaintiff leasing the premises to G., defendant’s possession of the leased premises, and its subsequent leasing thereof to another.</p> <p>[As to assignment of leases and respective rights and liabilities of parties, see notes in 10 Am. St. Rep. 557: Ann. Cas. 1913B, 889.]</p> <p>Landlord and Tenant — Assignee of Lease — Ground of Obligation.</p> <p>3. The assignee of a lease becomes liable to the lessor for the rent by reason of privity of estate, and not by reason of occupancy.</p> <p>Landlord and Tenant — Liability for Rent — Burning of Premises.</p> <p>4. A tenant expressly covenanting, without limitation or reservation, to pay rent for a term of years, is not released from such obligation by destruction of the building by accidental fire.</p> <p>[As to destruction of leased premises as affecting rights and liabilities of lessee, see notes in 94 Am. Dec. fi62; 50 Am. Rep. 469; 61 Am. St. Rep. 566. As to construction of provision in lease for termination of tenancy in ease of destruction of premises, see note in Ann. Cas. 1913A, 1095. As to right of lessee to recover rent paid in advance in case of destruction of premises, see note in Ann. Cas. 1912B, 1117.]</p> <p>Landlord and Tenant — Assignee of Lease — Evidence.</p> <p>5. TVom possession by one, other than the lessee of leased premises, it is presumed in favor of the lessor, seeking to hold him for the rent as assignee of the lease, that he is such assignee; and the landlord is not required in the first instance to prove more.</p> <p>Landlord and Tenant — Sublessees—Liability.</p> <p>6. One in possession of leased premises merely as sublessee, and not as assignee of the lease, is liable only to the lessee on the sublease, and not to the lessor on the original lease; there being neither privity of estate nor of contract.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Moore. This is an action brought by H. D. Schroeder against J. H. Tillman to recover money. The parties hereto on May 4, 1912, subscribed their names to a contract whereby the defendant stipulated to convey to the plaintiff by a good and sufficient deed, free of all encumbrances, tract No. 20 of Portland Truck Gardens, in Marion County, Oregon containing 11.94 acres, and other lands.

<p>Trusts — Evidence to Establish — Parol Agreement.</p> <p>1. Evidence of the conveyance of land to testator by' his wife having been on any parol agreement that he should will it to plaintiffs, held, not sufficiently specific and definite to establish a trust, even if there was anything to take it out of the statute of frauds.</p> <p>[As to creation of trust in land by parol, see note in 115 Am.</p> <p>St. Eep. 774.]</p>

From Multnomah: Henry E. McGinn, Judge. This is au action by Peter Kalich against F. O. Knapp to recover damages for an alleged personal injury. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion of the court.

From Multnomah: John P. Kavanaugh, Judge. This is an action by plaintiff, C. L. Burton, against the defendant, Lithie Manufacturing Company, a corporation, to recover his salary for 13 months as president of the corporation at $50 per month. The cause was tried by the court without the intervention of a jury, and a judgment rendered in favor of the plaintiff, from which the defendant appeals. The facts are set out in the opinion of the court.