Volume 74 — Oregon Reports

<p>Contracts—Construction Against Party Using Terms.</p> <p>1. A party writing a contract cannot reasonably contend that he did not intend to do all that the contract by its terms obliged him to do.</p> <p>Contracts—V alidity—Lobbying.</p> <p>2. Any person interested in any proposed legislation before any legislative body, including the common council or other law-making body of a municipal corporation, may legally employ an agent or an attorney to collect facts relating thereto, and to prepare a bill, and to explain the desired measure to the legislative body or any committee thereof fairly and openly, and have it introduced, and a contract to pay for such services, so rendered, is not a violation of law or of public policy.</p> <p>Contracts—Validity—Lobbying Contract.</p> <p>3. A contract whereby a paving company agreed to pay plaintiff 3 per cent of the contract price on all contracts for street improvement work entered into between it and a city, to be earned when the contracts should have been duly signed by the company and the city, and providing that plaintiff should “at all times do everything in his power” to further the business of the company, under which plaintiff was to circulate petitions among property owners asking that streets be paved with the company’s product, and obtain signatures of 20 per cent of the property owners, to present such petitions to the city council, to answer and fight remonstrances, and, by bringing property owners before the street committee and the council, to procure the passage of ordinances and resolutions authorizing the paving of streets, and assessing the expense on the adjacent lots, in effect a selling or promoting proposition, in view of the fact that the compensation was contingent, and was broad enough to cover services of any kind, seeret or open, honest or dishonest, and the exercise of personal and private influence upon the city council, and of the fact that such compensation was probably included in the company’s contract price, was invalid, as against public policy.</p>

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Burnett. This is a personal injury action by Charles A. Chadwick against the Oregon-Washington Bailroad & Navigation Company, a corporation. The facts are as follows: The defendant is a railway corporation engaged in interstate commerce. The plaintiff was a switch engineer in its employ stationed at La Grande, that being a division point.

<p>Judgment — Res Judicata — Questions Concluded.</p> <p>1. Under tbe rule that a judgment is conclusive on questions actually contested and determined, and also on all matters which might have been litigated in the proceeding, unless the failure to urge the point in question was caused by the adversary’s fraud and was without negligence of the losing party, a judgment that a deed granted exclusive rights, is res judicata in a subsequent suit to set it aside for want of consideration and ignorance of the grantors.</p> <p>Cancellation of Instruments — Proceedings—Laches.</p> <p>2. A suit to set aside a conveyance, brought 28 years after its execution, and after the death of all parties excepting one of the grantors, on the ground that there was no consideration to support the deed, and that the grantors were ignorant and unable to speak English, is barred by laches.</p> <p>[As to when equity will refuse relief because of laches, see notes in 54 Am. Dee. 130; 2 Am. St. Rep. 795; 23 Am. St. Rep. 148. As to enforcement in equity of stale claims, see note in Ann. Oas. 1914B, 314.]</p> <p>Appeal and Error — Questions Reviewable — “Assignments of Error.”</p> <p>3. An “assignment of error,” within Supreme Court Rule 12 (56 Or 621, 117 Pac. xi), providing that no question will be examined except those going to the jurisdiction of the court, or when the pleading does not state facts constituting a cause of action, or defense, or those arising on the assignments of error as contained in the printed abstract, is in the nature of a pleading, and its purpose is to point out specific errors to enable the appellate court to see on what point a reversal is asked.</p> <p>Appeal and Error — Questions Reviewable — Assignments of Error— Necessity.</p> <p>4. Where an appeal is taken from a decree entered on the pleadings, formal assignments of error are not necessary, though it is the better practice to have them.</p> <p>Appeal and Error — Questions Reviewable — Assignments of Error— Necessity.</p> <p>5. An appeal will not be dismissed for want of assignments of error, where it appears that the error complained of is the entering of an order set out with sufficient of the record to make it intelligible.</p> <p>Appeal and Error — Questions Reviewable — Assignments of Error— Supplemental Abstract.</p> <p>6. Where assignments of error were inadvertently omitted, they may be filed as a supplemental abstract; respondent not having been affected by the admission.</p>

From Multnomali: Henry E. McGinn, Judge. This is an action by Jacob Scheuerman against S. Mathison and Gust Anderson, doing business as Mathison & Anderson, copartners, in which a garnishment proceeding was instituted against the Pacific Coast Casualty Company. From a judgment against the garnishee, it appeals.

Prom Polk: Webster Holmes, Judge. Department 2. Statement by Mr. Justice Eakin. This is a proceeding by mandamus by Maud.

From Multnomah: John S. Coke, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by G. I. Dibert against Anton Giebisch and Ferdinand Joplin, partners as Giebisch & Joplin, to recover damages for a personal injury.

Prom Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Moore. This is a suit by Prank G. Barton against the City of Portland and others to quiet title to real property.

From Marion: Percy R. Kelly, Judge. This is a garnishment proceeding by M. A. McLaughlin and Roy H. Wassam, partners as the Salem Lumber Company, against the Aumsville Mercantile Company, defendant, and the E. M. Condit & Company, garnishee. From a judgment for plaintiffs against the garnishee, he appeals.

<p>Fraud. — Elements—Pleading.</p> <p>1. Each component of fraud must be alleged and found to exist as a matter of faet, and the! absence of any one of them is fatal to the party asserting fraud.</p> <p>Fraud — Fraudulent Representations — Matters of Fact or Opinion — Statement of Fact.</p> <p>2. A statement which, by reason either of its form ox subject matter, amounts merely to an expression of opinion, is not actionable, though an expression of opinion may be so blended with statements of fact as to become itself a statement of faet; but statements as to value or quality, made by one knowing them to be untrue, with intent to deceive and mislead the one to whom they are made, and by which he is misled, amount to an affirmation of fact rendering him liable therefor.</p> <p>Fraud — Question for Jury — Fact or Opinion.</p> <p>3. Whether a statement is an expression of an opinion or a statement of fact is generally for the jury, on consideration of the subject matter, the respective knowledge of the parties, and the form of the statement.</p> <p>Appeal and Error — Presumptions—Evidence not Shown by Record.</p> <p>4. In an action on á note, defended on the ground of a false and fraudulent statement as to the value of the property for which it was given, where the record on defendants’ appeal contained none of the' evidence, the Supreme Court would presume that the' evidence established that the statement was one of fact.</p> <p>Bills and Notes — Defenses—Fraud—Pleading and Proof.</p> <p>5. In an action on a note given as a part consideration for a packing plant, an answer .alleging that, before its execution and the pledging of its collateral, the plaintiff’s assignor represented to defendants that the company’s capital stock was worth at least $21,000, such value being based upon its plant and assets, was sufficient to admit evidence that the statement was one of fact, and npt of opinion, so as to constitute actionable fraud.</p>

From Multnomah: John P. Kavanaugh, Judge. This is a suit by Walter F. White against Multnomah County, a municipal corporation, Eufus C. Holman, D. Y. Hart and W. L. Lightner, as county commissioners. From a decree for defendants, plaintiff appeals. The facts are stated in the opinion of the court.

From Lane: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Bean. Tbis is a suit by August Telschow against George E. Quiggle, F. L. Kelly and Carl Tucker, to set aside two deeds of a quarter section of land in Lane County, for the reason that the one from plaintiff was obtained and delivered by means of a fraudulent scheme, and was void, and the other to defendant Kelly passed no title.

From Marion: Percy R. Kelly, Judge. In Banc. Statement by Mr. Chief Justice McBride.

<p>Trial — Motion for Nonsuit — Requisites.</p> <p>1. A motion for judgment, made at the close of plaintiff’s evidence, without any grounds therefor being stated, is insufficient as a motion for a judgment of nonsuit.</p> <p>Motions — Requisites—“Motion.”</p> <p>2. A “motion,” being an application to the court for relief of some kind, should state what relief is desired, and should ordinarily set forth the grounds for asking the relief.</p> <p>Pleading — Counterclaim on Note — Sufficiency.</p> <p>3. Allegations of a counterclaim that “a promissory note” in a certain sum “was executed in favor of and delivered to the defendant herein,” on which a certain sum “remains due from the plaintiffs to the defendant,” without stating who executed the note, were fatally defective; the allegation that a certain sum was due from plaintiffs being a mere conclusion of law.</p> <p>Pleading — Certainty—Counterclaim.</p> <p>4. A counterclaim on a note should be pleaded with the same particularity required in a complaint on the note.</p> <p>Pleading — V ariance — Counterclaim.</p> <p>5. Where a pretended counterclaim was defectively pleaded, evidence concerning it was properly excluded.</p> <p>Appeal and Error — Presentation for Review — Exclusion of Question.</p> <p>6. The exelusion of a question propounded to a witness cannot be reviewed by the appellate court, where the facts sought to be elicited by such question are not incorporated in the bill of exceptions.</p> <p>Appeal and Error — Presentation for Review — Exclusion of Documentary Evidence.</p> <p>7. The exclusion of a document from evidence cannot be reviewed by the appellate court, where the document or a copy thereof is not made a part of the bill of exceptions.</p> <p>Setoff and Counterclaim — Subject Matter of “Counterclaim” — Joint Note.</p> <p>8. A joint note executed to the defendant and signed by several parties, none of whom were plaintiffs and one of whom was not interested in the contract on which the suit was based, could not be the basis of a “counterclaim” under General Laws of 1911, page 144, providing that a counterclaim must be one in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action.</p> <p>Pleading — Counterclaim and Denial of Liability — Right to Plead.</p> <p>9. Under Section 74, L. O. L., prior to its amendment on June 3, 1913 (Laws 1913, p. 312), where the defendant in its answer denied entirely the demand of plaintiffs, or that it owed them anything, it could not plead a counterclaim.</p> <p>Pleading — Inconsistent Defenses — General Denial and Counterclaim— Statutes.</p> <p>10. The amendment of 1913 (Laws 1913, p. 312), to Section 74, L. O. L., relating to counterclaims, providing that defendant “shall” not be required to admit any liability or indebtedness to plaintiff in order to be allowed to plead a counterclaim, is prospective only, and does not affect an answer filed before it went into effect.</p> <p>Interest — Findings—Construction—“Matured Accounts.”</p> <p>11. In a broker’s action for commissions on the sale of corporate stock, a finding that, pursuant to a settlement made on Mareh 4, 1910, when defendant accepted certain cash and notes as payment for the stock, commission in a certain sum “became and was earned and was due and payable on the maturity date of said notes,” and “that all of the notes in these findings referred to * * have matured,” without stating when the notes matured, entitled plaintiffs to interest on thp amount of such commission only from the date of the findings, and not from the date of such settlement; the settlement shown by the finding, not being a settlement of “matured accounts,” within Section 6028, L. O. L., providing for interest on the settlement of matured accounts from the day the balance is ascertained.</p> <p>[As to distinction between setoff, recoupment and counterclaim, see notes in Ann. Cas. 1914B, 119; 40 Am. Dee. 320; 89 Am. Dec. 482.]</p>

From Union: John W. Knowles, Judge. This is an action by the Hartford Fire Insurance Company, a corporation, and H. J. Neilson against the Central Railroad of Oregon, a corporation, to recover damages for the loss of a building by fire caused by sparks from an engine operated by the railroad company. From a judgment in favor of plaintiff, defendant appeals.

From Multnomah: George N. Davis, Judge. The defendant, James G. Ayles, was indicted, tried and convicted of the crime of adultery, and from the judgment and sentence imposed thereon appeals.

From Marion: William Galloway, Judge. Department 2. Statement b3r Mr. Justice Bean. Held: the trustees of the Congregational Church borrowed $400, mortgaged the premises to the Congregational Church Building Society, to secure such sum, and expended that amount in improving the property.

Prom Multnomah: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice Burnett. Tbis is an action by Sidney Norman against Robert H. Ellis, Edward Boyce, Harry L. Day, Eugene R. Day and Jerome Day.

From Douglas: Me. James W. Hamilton, Judge. Statement by Mr. Justice Mooee. This is an appeal by a trustee in bankruptcy from a part of-a judgment.

From Union: John W. Knowles, Judge. This is an action on a note by the Powder Valley State Bank against A. B. Hudelson and W. A. Hudelson, partners, doing business under the firm name and style of A. B. Hudelson & Son. There was a judgment in favor of defendants and plaintiff appeals.

<p>From Lane. Lawrence T. Harris, Judge.</p> <p>Department 2. 'Statement by Mr. Justice Bamsey.</p> <p>This is a suit in equity by W. H. Martin against S. H. Thomas, Minnie E. Thomas, Bobert A. Kletzing, Lillie E. Kletzing, Ralph H. Kletzing, Louis M. Kletzing and Kletzing Brothers, copartners, to set aside certain conveyances, and to subject certain property to the payment of money due the plaintiff on two decrees, etc. In the court below there was a decree in favor of the plaintiff. The defendants appeal. The plaintiff also appeals from parts of the decree. The facts appear in the opinion.</p>

<p>Constitutional Law—Validity of Statute—Persons Entitled to Question.</p> <p>1. A taxpayer, while entitled to resist by litigation the enforcement of an unconstitutional statute which will increase his taxes, cannot resist the enforcement of Aet of February 28, 1913 (Laws 1913, p. 668), creating a corporation department to protect purchasers of stocks and bonds and prevent fraud in the sale thereof, though the act provided for considerable expenditures, where the moneys for the expenditures would be derived from license fees and other contributions demanded of corporations.</p> <p>[As to taxpayers’ actions, see note in Ann. Cas. 1913C, 884.]</p> <p>Constitutional Law — Determination—Moot Case.</p> <p>2. The constitutionality of a statute will not be determined where the party attacking it has no interest, and the question is purely academie.</p>

From Linn: William Galloway, Judge. Department 2. Statement by Mr. Justice Eakin. This is a suit brought by Ellen O. Griffith, as administratrix of the estate of John H. Griffith, deceased, and Ellen C. Griffith in her individual capacity, for the purpose of having the defendant Geo. F. Griffith declared a trustee of the title of certain real estate described in the complaint for the benefit of said estate.

From Multnomah: Henry E. McGinn, Judge. This is an action by Roy Fisher, a minor, by Andrew J. Crafton, his guardian ad litem, against the Portland Railway, Light & Power Company, a corporation, and the Portland Water Power & Electric Transmission Company, a corporation. From a judgment for plaintiff, defendants appeal. Respondent moves to dismiss appeal.

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>This is an action by I. M. Francis against W. C. Thienes, in which plaintiff was given judgment and defendant appeals.</p>

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice McBride. This is an action by G. E. Sherman against the Clear View Orchard Co., a corporation, to recover compensation for alleged services as sales manager of defendant corporation.

From Washington: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Frank Goldstein against the Pacific Home Mutual Fire Insurance Company, to recover the amount of a policy of insurance issued by the defendant upon a stock of clothing and other like merchandise, together with furniture and store fixtures, contained in a brick building situated at No. 242 Burnside Street, Portland, Oregon.

From Clatsop: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Bean. This is an appeal by the Northern Pacific Railway Company from a decree of the Circuit Court for Clatsop County dismissing an appeal from the county board of equalization to the Circuit Court in the matter of the valuation of certain lands in Clatsop County for the year 1913.

From Multnomah: John P. Kavanaugh, Judge. Department 1. Statement by Mr. Chief Justice Moore. This is an action by Bessie Kemp against the Portland Railway, Light & Power Company, a corporation, to recover damages for a personal injury.

<p>Mandamus — Petition—Informality—Waiver.</p> <p>1. Failure of tbe county attorney to sign in his official capacity the petition filed by him in mandamus proceedings instituted under instructions from the state land board was a mere informality, which, under the express provisions of Section 72, L. O. L., was waived when defendant answered to the merits.</p> <p>Mandamus — When Allowed — Party in Interest — State Officers.</p> <p>2. Under Section 614, L. O. L., providing that the writ of mandamus shall be allowed on the petition of the party beneficially interested, mandamus proceedings may be instituted by the state, on the relation of the Governor and Secretary of State, who constitute a majority of the members of the state land board, to compel the State Treasurer to surrender to such board funds and records to which it may be entitled; the people of the state in their collective capacity constituting the real party in interest.</p> <p>States — Funds and Records — Right to Custody — State Land Board— State Treasurer.</p> <p>3. Under Laws of 1855-56, page 70, Sections 8, 9, 10, giving the territorial treasurer control of sehool funds, which statute was continued in force by Article XVIII, Section 7, of the Constitution, until altered or repealed, and in view of the fact that such statute was not annulled by Article VIII, Section 5, of the Constitution, prescribing the powers and duties of the commissioners for the sale of school and University lands and investment of the proceeds, and has not been changed by the subsequent legislation relative to the state land board (Sections 3882, 3883, 3886, L. O. L.; Section 3296, B. & C. Comp.; Laws 1913, p. 499), or the provisions relative to the powers and duties of the State Treasurer (Article VI, Section 4, of the Constitution; Sections 2636-2638, 2654, 2658, L. O. L.), the right to custody of notes and mortgages taken by the state land board on loans of the common or irreducible school fund, university fund, and Agricultural College fund of the state, and the records, books and papers used in connection therewith, is vested in the State Treasurer, rather than in the state land board. »</p> <p>Mandamus — Right to Remedy — Performance of Official Duty.</p> <p>4. While, under the express provisions of Section 613, L. O. L., a writ of mandamus may issue to compel the State Treasurer to perform an act which the law specifically enjoins, it will not issue, unless the duty sought to be enforced is legally defined.</p> <p>[As to mandamus against public officers, see note in 98 Am. St. Rep. 863.]</p>

From Linn: William Galloway, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Ella Peacock against John E. Kirkland, J. D. Isom and A. M. Holt. The plaintiff issued execution on a judgment in her favor against one Albert Peacock, and placed it in the hands of the sheriff of Linn County, who by virtue thereof levied upon and took into his possession certain chattels as the property of the defendant in the writ.

From Klamath: Henry L. Benson, Judge. In Banc. Statement by Mr. Chief Justice McBride. This is an action by the Klamath Lumber Company, a corporation, against Stella M. Bamber and F. C. Bamber. Bespondent now moves to dismiss the appeal. Plaintiff, which is a corporation, brought an action against defendants upon three promissory notes.

From Wallowa: John W. Knowles, Judge. In Bane. Statement by Mr. Justice Ramsey.

From Union: John W. Knowles, Judge. In Banc. Statement by Mr. Justice' Bean. This is an action by H. M. Pfeiffer against tbe Oregon-Wasbington Railroad & Navigation Company, a corporation, for negligence under tbe Federal Employers’ Liability Act. A verdict was rendered in favor of tbe plaintiff, and, from a judgment entered tbereon, tbe defendant appeals.

From Multnomah: George N. Davis, Judge. Department 1. Statement hy Mr. Justice Burnett. This is an action by Edward J. Sharkey and Fannie Y. Sharkey against the Portland Gas and Coke Company, a corporation. The plaintiffs are the owners of real property in Portland fronting on Eighth Street between Holladay and Pacific Streets. The defendant is a corporation engaged in the distribution and sale of illuminating gas.

Original proceeding in Supreme Court. In Banc. Statement by Mr. Chief Justice McBride. This is a proceeding in mcmdamus to require the Governor to issue a certificate of election to the plaintiff, declaring him to have been elected circuit judge of department No. 6 of Multnomah County, at the general election held November 3, 1914.

From Multnomah.: John P. Xavanaugh, Judge. The defendant, W. H. Chapin, was indicted, tried and convicted of the crime of larceny, and from the judgment and sentence imposed he appeals. The facts are set forth in the opinion of the court.

<p>Ejectment — Lease—Expiration—Question for Jury.</p> <p>1. Where plaintiffs in ejectment claimed under an unrecorded lease from the common source of title limiting the term to the time the property was used as a site on which to build a district schoolhouse, evidence held to require submission to the jury of the question whether such use had terminated when defendants acquired title.</p> <p>[As to supplementing lease with collateral oral agreement, see note in Ann. Cas. 1914A, 456.]</p>

From Clackamas: James U. Campbell, Judge. This is a proceeding by J. A. Yan Brakle to review tbe act of tbe state board of health in removing plaintiff from the office of county health officer of Clackamas County. The Circuit Court sustained the writ and defendant appeals.

Original proceeding in Supreme Court. Department 2. Statement by Mr. Justice Harris. This is an original proceeding to test the right of the sheriff of Multnomah County to restrain the petitioner of his liberty.

<p>Exchange of Property — Rescission—Fraud—Evidence.</p> <p>1. In an action to recover the value of land, traded for other land title to which failed, plaintiff may give in evidence a pretended abstract of defendants’ title, given him by them, not as evidence of title, but to prove defendants’ lack of title to land in question; such abstract, as against the defendants, being prima facie proof of that fact.</p> <p>[As to when, how and by whom rescission of contract may be made, see note in 56 Am. Dec. 672.]</p> <p>Exchange of property — Rescission—Evidence.</p> <p>2. Where, in an action to recover value of land, traded for other land, title to which has failed, evidence of the value of the property conveyed to defendants in exchange for theirs is competent.</p> <p>Evidence — Admissions.</p> <p>3. In a suit for value of land, traded for other land to which title had failed, the declaration of defendants that plaintiff should have traded off the land before investigating the title was competent, as tending to show that he had no faith in his own title to land.</p> <p>Dismissal and Nonsuit — Parties—Misjoinder of Parties.</p> <p>4. Misjoinder of defendants can be taken advantage of only by those misjoined, and is not fatal to the complaint, and not ground for a nonsuit.</p> <p>Parties — Misjoinder—Waiver of Defect.</p> <p>5. A defect of parties in the complaint is waived, if objection is not raised by demurrer.</p> <p>Damages — Pleading—Allegations of Damage.</p> <p>6. Where the facts alleged in the complaint necesssarily involve damage, no specific allegation to that effect is necessary.</p> <p>Exchange of property — Rescission—Pleading—Allegation of Fraud.</p> <p>7. Where, in an action for the value of land, traded for other land, title to which had failed, the complaint charged that the defendants represented that they owned their land and had good title thereto, when in fact they did not, a clear case of fraud, at least constructive fraud, is made out.</p> <p>[As to right of grantor to cancellation of deed on ground of misrepresentation by grantee as to condition, value, etc., of property, see note in Ann. Cas. 1912A, 405.]</p> <p>Injunction — Motion to Dissolve.</p> <p>8. Where plaintiff sues to recover the value of land, exchanged for land to which the defendants had no title, a motion to dissolve a retraining order, in the nature of an injunction, prohibiting the defendants from disposing of the land in question, was improperly denied, since the suit is at law, while injunction is an equitable remedy.</p>

From Marion: Percy B. Kelly, Judge. In Banc. Statement by Mr. Justice Benson. On December 23, 1912, the plaintiff, Kathleen Lamp-man, began a suit for a divorce against defendant, C. E. Lampman, in the Circuit Court for Marion County.

<p>Appeal and Error — Affirmance—Remand—Further Proceedings — New Issues.</p> <p>1. Where the issues presented to the trial court were well defined, and the evidence was directed to the issues as framed, and there was nothing in the pleadings to mislead defendant R., the Supreme Court having decided the issues presented on the entire record as made and determined -by the questions presented, and judgment having been affirmed, the court could not remand the cause to the end that R. might file a new answer presenting new and different questions.</p>

From Lake: Henry L. Benson, Judge. In Banc. Statement by Mr. Justice Bean. On May 11, 1914, tbe defendant, James Young, was indicted by tbe grand jury of Lake County for tbe violation of tbe provisions of Chapter 102, General Laws of Oregon 1913, by employing one William Harvey for more than 10 hours in one day — to wit, for 11 hours. The cause was tried before the court without the intervention of a jury.

From Clatsop: James A. Eakin, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit by the Du Bois Lumber Company against Clatsop County and others to restrain the collection of a special road tax in district No. 15. The complaint contains the usual allegations in such cases showing that plaintiff is the owner of a large area of land in the road district named.

From. Union: John W. Knowles, Judge. In Bane. Statement by Mr. Justice Eakin. This is an action by R. A. West against Duncan McDonald, and is tbe third appeal of this case, and a full statement of tbe issues appears in 64 Or. 203 (127 Pac. 784, 128 Pac. 818). It is again reported in 67 Or. 551 (136 Pac. 650). Tbe Farmers’ Union Warehouse, desiring to have a well drilled adjacent to their warehouse, raised a fund of $150 by subscription for that purpose.

From Multnomah: Robert CL Morrow, Judge. Department 2. Statement by Mr. Justice Bean. On the 31st day of May, 1911, the defendant L. O. Hammer was jointly indicted with W. H. Whiteaker, O. F. A. Peck, H. GL Luker and J. C. Luker, by the grand jury of Multnomah County, and charged with the crime of having obtained the signature of Emma A. Smith to a deed by means of false pretenses.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Bean, This is an action by the City Messenger & Delivery Company against the Postal Telegraph Company to recover from the defendant the reasonable value of certain services rendered it. From a judgment based upon a verdict for the plaintiff, the defendant appeals. Both parties to the action are Oregon corporations.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Bean. This is a suit by M. J. Kinney against H. O. Eckenberger to enjoin the defendant from prosecuting a certain action at law and for the cancellation of a contract sued upon in that action. A decree was rendered in favor of the plaintiff, and the defendants appeals.

From Marion: William Galloway, Judge. Department 2. Statement by Mr. Justice Bean.

From. Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by Frederick & Nelson, a corporation, against W. H. Bard, and is the second appeal in this case.

<p>From Multuomab.: Henry E. McGinn, Judge.</p> <p>Department 2. Statement by Mr. Justice McBride.</p> <p>This is a suit by Presley Gillihan, Vina E. Cole, Edwin Gillihan, Rebecca A. Ramsey, Sarah E. Parmalee and Harriet L. King, against George W. Cieloha to quiet title to certain land claimed by plaintiffs to be an accretion to the Martin Gillihan donation land claim situated on Sauvies Island, in Multnomah County, and practically embracing all the land between the Gillihan donation land claim and Coon Island, which is situated at the mouth of the Willamette River and near its junction with the Columbia. The complaint is in the usual form and alleges that the land is not in the actual possession of any one other than plaintiffs. The answer denies plaintiffs’ title and that the land is not in the actual possession of anyone else than plaintiffs, alleges that defendant is the owner thereof, that the land is not in possession of anyone else than defendant, and that plaintiffs are making some unfounded claim thereto, and asks affirmative relief. The cause being put at issue by a reply, it was referred for the taking of testimony, which was done and reported to the court. The court without hearing argument, and without the consent of the defendant, directed John McQuinn, a surveyor of repute, to go upon the land and make an equitable division of the accretions and a report of his action to the court, which he did, disregarding slightly the testimony and surveys introduced in evidence. The court adopted this report as its findings, and from a decree rendered thereon the defendant appeáls.</p>

<p>Quieting Title — Costs—Surveys.</p> <p>1. The fees of a surveyor called in by the court, in a suit to quiet title to accretions, to assist in designating on the ground the points imperfectly indicated in the evidence, a survey being necessary to make any division intelligible, will be allowed as costs.</p>

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

From Clatsop: Thomas J. Cleeton, Judge. The defendant, C. A. Robinson, was indicted, tried and convicted of receiving stolen property, and from the sentence imposed he appeals.

From Lake: Henry L. Benson, Judge. This is a suit by the Northwest Townsite Company, a corporation, against George Conn, Margaret E. Conn and the sheriff of Lake County, Oregon. From a judgment for defendants, plaintiff appeals.

<p>Executors and Administrators — Claims—Limitations.</p> <p>1. Under Section 16, L. O. L., providing that tbe time of tbe absence from the state of a debtor shall not be taken as any part of the time limited for the commencement of an action accruing before the departure from the state, and Section 18, declaring that no action for collection of any claim against a decedent’s estate may be maintained when no letters of administration issued within six years after the death of decedent, claims are barred where more than six years elapse between the death of a debtor and the issuance of letters of administration.</p> <p>[As to absence from state and whether it forms an exception to statute of limitations unless expressed, see note in 13 Am. Dee. 368.]</p> <p>Courts — Probate Courts — Equity Procedure.</p> <p>2. Section 1135, L. O. L., providing that the mode of proceeding in the County Court sitting in probate is in the nature of that in a suit in equity, makes proceedings in probate a suit in equity.</p> <p>Executors and Administrators — Settlement of Estates — Establishment of Claims — Laches.</p> <p>3. A debtor having property within the state departed therefrom in 1896 or 1897, and resided elsewhere until his death in 1904. In 1912 letters of administration were issued in the' state. His creditors had taken no steps to enforce payment of their elaims until after the issuance of the letters. Held, that the County Court sitting in probate properly adjudged that the claims of the creditors were stale, though the statute of limitations was not binding.</p> <p>Executors and Administrators — Settlement of Estates — Taxes—Enforcement.</p> <p>4. Taxes accruing after the death of the owner are enforceable by appropriate proceedings, and will not justify an order for the sale' of real estate by an administrator.</p>

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Chief Justice Moore. This is an action by L. Vasquez against J. Pettit, doing business as the Pettit Feather & Bedding Company, to recover damages for a personal injury.

From Tillamook: William Galloway, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by Frank Long, Sr., as administrator of the estate of William Campbell, deceased, against the Pacific Railway & Navigation Company, a corporation, to recover damages for the death of the deceased, which is alleged to have been caused by the defendant’s negligence. From a judgment for plaintiff in the sum of $2,000, defendant appeals.

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Gertrude Gerlinger against Lloyd Frank.

From Clatsop: James A. Eakin, Judge. Department 2. Statement by Me. Justice Bean. This is an appeal by tlie plaintiffs from an order of the Circuit Court striking their complaint from the record and dismissing the action.

From Columbia: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Benson. The defendant, R. F. Barker, in this suit began an action in ejectment against the plaintiff, Beaver Lumber Company, herein, to recover possession of a small strip of tide-land fronting plaintiff’s lumbering plant in Columbia County, together with damages for its detention.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin. This is a suit by J. B. Tillotson against Joseph Paquet for an accounting.

From Multnomah: John P. Kavanaugh, Judge. .Department 1. Statement by Mr. Chief Justice Moore. This is a suit by F. S. Duester and H. C. Raven, for themselves and all other persons who might wish to join them, against P. A. Alvin, for a mandatory injunction to require him to remove from his real property a building, and also to set back farther from the line of a street the foundation for another structure to be erected on the premises.

From Multnomah: William N. Gatens, Judge. This is an action by A. P. Lecher against the City of St. Johns, a municipal corporation, Albert E. Duns-more, as recorder, and F. A. Bice, as treasurer. There was a judgment in favor of plaintiff and defendants appeal. Bespondent files motion to dismiss the appeal. Submitted on briefs without argument under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi).

From Clackamas: James IT. Campbell, Judge. Department 2. Statement by Mb: Justice Harris. George D. Ely died August 6, 1912, in Los Angeles County, California, and at tbe time of bis death was a resident of that county. His estate consisted of both personal and real property. He owned real property located in Clackamas and Multnomah Counties, Oregon, as well as certain lands situated in Los Angeles County, California.

From Multnomah: Thomas J. Cleeton, Judge. Department 2. Statement by Mr. Justice Bean. These two actions grew out of claims by Charles N. Scott and Emma M. Brown against the estate of Sarah A. Merrill, deceased, and the appeals were taken by claimants from judgments of the Circuit Court disallowing two separate claims against the estate of Sarah A. Merrill, deceased.

Original proceeding in Supreme Court. In Banc. Statement by Me. Justice Ramsey. This is an original proceeding, on the relation of Andrew L. Clark, for quo warranto to ~W. A. Harris. Heard on demurrer to the petition or complaint.

From Coos: John S. Coke, Judge. In Bane. Statement by Mr. Justice Burnett. This is a proceeding to have one Charles Sneddon committed for insanity. The abstract.of record before us discloses that, on the petition of Ellen Sneddon in the County Court -of Coos County, Charles Sneddon was brought before that court, and with the assistance of two practicing physicians was examined and adjudged insane by that court and ordered conveyed to the Oregon State Hospital at Salem.

From Malheur-: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Bean. This is a proceeding under the act of 1909 (Laws 1909, p. 319), known as the “Water Code,” which was begun on May 5, 1909, by filing with the board of control, water division No. 2, a petition signed by C. T. Locey and J. P. Smith, requesting a determination of the relative rights of the various claimants to the waters of Willow Creek, a stream in Malheur County, Oregon.