Volume 75 — Oregon Reports

From Multnomah: William N. Catens, Judge. Department 2. Statement by Mr. Justice Bean.

From Multnomah: Robert Gr. Morrow, Judge. Department 2. Statement by Mr. Justice Harris. This is a suit for an accounting, and has required the examination of a plethora of figures. The defendant owns and operates a large lumber manufacturing plant. The establishment consists of a sawmill, planing-mill, dry kiln, sidetracks, dock, yards and such equipment as is usually found connected with a large mill.

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Benson. This is an action by Albert H. Herndobler, a minor, by A. B. Herndobler, his guardian ad litem, against Phillip Rippen, Cecelia Rippen and Cecil Rippen, a minor.

From Jackson: Frank M. Calkins, Judge. Department 2. Statement by Mr. Justice Bean. Tbis is a suit to foreclose a mortgage on about 10 acres of orchard land near Medford, Jackson County, Oregon, given by J. H. Bissell and Edytke M. Bissell, his wife, to plaintiff, O. D. Whitney, to secure the payment of three promissory notes aggregating $7,500, a portion of which mortgage was assigned to plaintiff, C. H. H. Parker.

From Multnomah: Dalton Biggs, Judge. Department 1. Statement by Mr. Chibe Justice Moore.

From Multnomah: Thomas J. Cleeton, Judge. This is an action by George C. Moore against the Aetna Life Insurance Company. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion of the court.

From Multnomah: George E. Davis, Judge. Department 2. Statement by Mr. Justice- Bean. This is an action by the Bridal Veil Lumbering Company against the Pacific Coast Casualty Company, on an employers’ liability insurance policy to recover the sum of $2,750. The cause was tried before a jury mainly upon a stipulation of the facts. A verdict was rendered in favor of the defendant. From a judgment rendered thereon, the plaintiff appeals.

<p>Mechanics’ Liens—Persons—Liable—Owner—Notice Denying Liability.</p> <p>1. Under Section 7416, L. O. L., giving to every person performing labor upon or furnishing material used in the construction of any building a lien for labor or material furnished at the instance of the owner or his agent, and making every contractor an agent of the owner for the purposes of the act, Section 7417, imposing sueh lien upon the land if it belonged to the person who caused the building to be constructed, but if such person owned less than a fee simple, then upon the interest only, and Section 7419, providing that every building constructed on lands with the knowledge of the owner shall be held to have been constructed at his instance and shall be subject to lien, unless within three days after knowledge of such construction he posts a notice that he will not be responsible therefor, where a lease for 15 years required the lessee to build on the land, the building to revert to the lessor, the lessee became a contractor and agent of the lessor, and the land beeame subject to the liens of laborers and materialmen, though the owner posted the notice prescribed by Section 7419.</p> <p>[As to “owner,” in contemplation of mechanic’s lien laws, including tenant for years, see note in Ann. Cas. 1912A, 316.]</p> <p>Mechanics’ Liens — Notice of Lien — Description of Property.</p> <p>2. Though notices of mechanics’ liens fix the beginning point of the description of the land at 50- feet north of southeast corner, Manning’s Addition, while the answer in the suit to foreclose states that the house was built on land the description of which began 35 feet north of the southeast corner of the addition, but the claims of lien state that the building is a three-story apartment house fronting west on Ash Street, and all being situated in the City of Portland, and that the tract is inclosed by the east line of Ash Street on the west, Manning Addition on the north and south, and another addition on the east, the description is sufficient for identification of the property involved.</p> <p>Mechanics’ Liens — Notice of Liens — Description of Property — Materials.</p> <p>3. A notice of mechanic’s lien locating and identifying the house involved sufficiently complied with statutory requirements as to perfection of lien, although it did not state of what the material furnished consisted, other than by reference to invoices rendered to the contractor, and not to the owner.</p>

From Union: John W. Knowles, Judge. Department 2. Statement by Me. Justice Eakin. Tbis is an appeal from a decree of tbe Circuit Court for Union County, Oregon, affirming tbe determination of tbe State Board of Control, now tbe State Water Board, as to tbe relative rights of tbe water users on North Powder River.

From Multnomah: William N. Gatens, Judge. This is an action by Harry Stires against Benjamin F. Sherwood and others for false imprisonment There was a judgment for defendants and plaintiff appeals. Respondent now moves to dismiss the ap-i peal. Submitted on briefs without argument under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).

From Multnomah: George N. Davis, Judge. Department 1. ■ Statement by Me. Justice Burnett. This is an action by the Home Telephone & Telegraph Company of Portland, Oregon, a corporation, against A. D. Moodie, on two counts to recover the quantum meruit of certain services alleged to have been performed by it for the defendant at his special instance and request in moving its wires on certain streets in the City of Portland.

From Marion: Percy R. Kelly, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by H. S. Gile & Co., against Lonis Lachmund.

From Marion: William Galloway, Judge. Department 2. Statement by Me. Justice Bean. This is a suit by H. C. McDowell against B. L. Carotbers to determine a dispute concerning the location of the boundary lines between the land of plaintiff and the adjacent property of the defendant. The court rendered a decree as prayed for by the plaintiff. From this the defendant appeals.

From Clackamas: James U. Campbell, Judge. In Banc. Statement by Mr. Justice Burnett. This is a suit by Hannah M. Orr against Gus Orr.

Prom Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is a suit by Viola M. Coe against Henry W. Coe, for a dissolution of their marriage contract and for the custody of their two sons, whose ages are respectively 18 and 20 years. She also instituted a suit against the defendant and a Sanitarium Company, a corporation, for an accounting.

Prom Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by A. H. Sandstrom against the Oregon-Washington Railroad & Navigation Company.

From Crook: William L. Bradshaw, Judge. This is a proceeding by A. D. Bussell against the County Court of Crook County and others. Defendants were successful in the court below, and now move to dismiss appeal.

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

From Douglas: James W. Hamilton, Judge. Department 2. Statement by Mr. Justice Eakin. This is a suit by W. F. Hedges against E. D. Riddle and W. J. Warner, and is the second appeal in this case. The facts are stated in 63 Or. 257 (127 Pac. 548), so far as they are necessary to this opinion.

<p>Explosives—Personal Injuries—Fright the Proximate Cause of Injury.</p> <p>1. Where defendant negligently exploded a large blast of powder near plaintiff’s residence, frightening her so that she fainted and fell to the floor and thereby seriously injured herself, defendant was liable for such resulting'injury as against the contention that it was caused by sudden fear. -,</p> <p>PAs to liability for keeping or storing explosives, see note in 67 Am. St. Rep. 134.]</p> <p>Trial—Instructions—Assumption of Facts—Personal Injuries.</p> <p>2. Instructions, stating that the issues were whether the injury complained of by plaintiff was caused by an explosion, and if so caused was a proximate result, and whether plaintiff was guilty of negligence contributing to the injury, and an instruction that in considering the damages the jury would consider the pain and suffering plaintiff had endured and would endure as a natural result of the "injury she received, it also considered the impairment of health through the injury she received, were defective iu assuming, in spite of the general issue, that plaintiff had received actual injury.</p> <p>Damages — Issues—Pleading, and Proof — Aggravation of Previous Injury.</p> <p>3. Where plaintiff did not plead the aggravation of a previously existing injury, she was not entitled to recover therefor.</p> <p>Explosives — Personal Injuries — Evidence.</p> <p>4. Where plaintiff alleged that defendant negligently exploded a large blast near her premises, frightening her so that she fell and was injured, it was not error to permit witnesses to describe the condition of plaintiff’s premises as to deposit of débris thereon soon after the occurrence.</p> <p>[As to right to recover damages for bodily pain and suffering resulting from fright without actual physical violence, see note in Ann. Cas. 1913E, 505.]</p> <p>Explosives — Personal Injuries — Fright—Evidence.</p> <p>5. It was error to allow plaintiff to testify to an alleged promise of defendant’s manager to plaintiff’s husband that no blasting would occur while the husband was away from home.</p>

<p>Release—Personal Injuries—Release of Claim for Damages—Effect.</p> <p>1. A release by plaintiff sustaining personal injuries of his claim against defendant, for damages therefor, executed without any fraud, attempted or practiced on him, but fairly made, defeats an action against defendant, who has complied with the release, though the injuries to plaintiff were more serious than anticipated.</p> <p>[As to consideration for release of claim for damages for personal injuries, see note in 107 Am. St. Rep. 615.]</p> <p>Appeal and Error—Harmless,Error—Errors not Affecting Result.</p> <p>2. Where a defense to an action was clearly established, errors must be disregarded, and the judgment for defendant must be affirmed in accordance with Article VII, Section 3, of the Constitution, as amended (see Laws 1911, p. 7.)</p>

From Tillamook: Webster Holmes, Judge. Department 1. Statement Per Curiam. This is an action by John Theiler against Tillamook County.

Prom Polk: Webster Holmes, Judge. Department 1. Statement by Mr. Justice Benson. This is a suit by U. S. Lougbary, administrator of tbe estate of Martha Simps.on, deceased, against Isaac Simpson for an accounting.

From Multnomah.: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice McBride. This is a suit by T. H. Field against the Hood River Orchard Land Company, a corporation, to rescind a contract for the purchase of a tract of land in Hood River county.

<p>Mechanics’ Liens — Indemnity by Partner — Effect—Estoppel to Claim Lien.</p> <p>1. A partnership is not barred from claiming a mechanic’s lien on a building merely because one partner, in his individual capacity, was surety on the contractor’s bond, and had guaranteed the delivery of the building free of liens.</p> <p>Contracts — Implied Contract — Evidence.</p> <p>2. Where a building contractor, for whom one of the partners of a plumbing firm was surety, abandoned his contract, and the owner told the partner to go ahead and' finish the plumbing, that he would pay all the bills and look to the sureties, a promise by the owner to pay the contract price for the plumbing might be implied.</p> <p>Mechanics’ Liens — Persons Entitled — Contractor’s Surety.</p> <p>3. The surety on a contractor’s bond, who guaranteed the delivery of the building free from liens, cannot enforce a merehanie’s lien or recover for labor or materials furnished and used in excess of the contract price.</p> <p>[As to who is “laborer” within the statute giving liens to laborers, see note in Ann. Cas. 1913B, 138.]</p> <p>Partnership — Rights Against Third Persons — Representation hy Partner — Suretyship.</p> <p>4. Where a member of a plumbing firm individually signed the bond of a contractor for a certain building, for which the firm was to furnish the plumbing, and there was nothing in the record to- show that he did so on account of or for the benefit of the partnership, it will be presumed that he was acting in his individual capacity.</p> <p>Contracts — Consideration—Waiver of Lien.</p> <p>5. Where the principal contractor for a building abandoned his contract, the waiving by a subcontractor for the plumbing, of his right to file a lien, was sufficient consideration to support a promise by the owner to pay for the plumbing.</p> <p>[As to waiver of mechanics’ lien, see note in 41 Am. Dec. 221.]</p> <p>Contracts — Actions—Findings—Express Contract.</p> <p>6. In an action on an express promise by the owner of a building to pay a subcontractor the contract price for the plumbing, a finding that the owner promised to pay the subcontractor a certain sum, which was the original contract priee, and was also the reasonable value of the work and material furnished, is sufficient to support a judgment for the subcontractor; the latter part of the finding being immaterial.</p> <p>Contracts — Work and Labor — Actions—Variance—Recovery on Implied Contract.</p> <p>7. In an action on an express contract, there can be no recovery upon proof of an implied agreement; but under a complaint for the reasonable value of services, where there is evidence showing an agreed price, that priee will be construed to be the reasonable value.</p> <p>Interest — Express Contracts — Computation.</p> <p>8. Where the owner of a building promised to pay to subcontractors for the plumbing the original contract priee for the completion of the work, the plumbers are entitled to interest from the date of its completion.</p> <p>Interest — Implied Contracts — Computation.</p> <p>9. Even if the promise was not to pay the contract price, a statement by the owner, when the bill was presented to him at the completion of the work, that it was all right, was a settlement of the amount due, and entitled the plumber to interest from that time.</p>

From Multnomah: Henry E. McGtnn, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is an action by the Clarke-Woodward Drug Company against the Hot Lake Sanatorium Company to recover money.

Prom Sherman: David R. Parker, Judge. In Banc. Statement Per Curiam. This is an appeal from a writ of review directed to the County Court of Sherman County annulling the action of that court in choosing the “Grass Valley Journal” as the official county newspaper for the year 1914.

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by Thomas K. G-ekas against the Oregon-Washington Railroad & Navigation Company, a corporation, to recover damages for negligence under the Federal Employers’ Liability Act. A verdict was rendered for the sum of $2,500. From a judgment entered thereon, defendant appeals.

From Marion: William Galloway, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by Leverna Hogan French against Hattie Goin and George R. Goin, her husband, William C. Hogan and Agnes Hogan, his wife, E. R. Hogan, Lillian Denison Jester and G. P. Jester, her husband.

From Multnomah: William N. Gatens, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit in equity by W. O. Spence against O. J. Hull and Ada E. Hull to cancel a contract between plaintiff and defendant O. J. Hull, on the ground of fraud. The facts were submitted to a jury, and the court rendered a decree in favor of plaintiff. The defendants appeal.

From Columbia: Thomas J. Cleeton, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Frank O. Blair against tbe Western Cedar Company, a corporation. At the time mentioned in the complaint the defendant was engaged in the business of logging in Columbia County, Oregon, the outlet of which was down the gulch of a small creek.

Prom Multnomah: Robert Gr. Morrow, Judge. Department 1.. Statement by Mr. Justice Harris. Katie H. Holcomb, the owner of lot 8, block 11, St. Johns Park Addition to the City of St. Johns, let a contract to Robert Pritz, who agreed to furnish the work and material necessary for the construction of an addition to a building on the described lands.

<p>Banks and Banking — National Banks — Ultra Vires Acts — Acting as Loan Broker.</p> <p>1. A national bank cannot act as broker in lending its depositors’ money to third persons.</p> <p>Contracts — Ambiguous Contracts — Construction in Favor of Promisee.</p> <p>2. Where a contract is reasonably susceptible of several constructions, that will be given it whieh is most favorable to the promisee; the court considering the circumstances of the contract to determine how the promisee understood it.</p> <p>Banks and Banking — National Banks — Action of President in Borrowing Money — Sufficiency of Evidence.</p> <p>3. Evidence held sufficient to show that the president of defendant bank, in borrowing plaintiff’s money, acted for the bank and not for himself.</p> <p>Banks and Banking — National Banks — Power to Borrow — Necessity for Emergency.</p> <p>4. It is within the power of a national bank to borrow money, though there is no emergency.</p> <p>Banks and Banking — National Banks — Actual and Implied Authority of President to Borrow — Authority Through Estoppel.</p> <p>5. The president of a national bank has no authority by his position to borrow money for the bank, but the creditor may still hold the bank on such a transaction on the ground of estoppel in pais.</p> <p>Banks and Banking — National Banks — Authority of President to Borrow for Bank — Facts Showing Estoppel.</p> <p>6. Where the president of a national bank managed its affairs, and drew checks on the plaintiff’s funds, claimed by her to have been lent to the bank, signing her name without any question from the bank as to his authority, which must have had notice through other officials during the continuance of the transactions for two years, the bank was estopped to deny that the loan of money, alleged to have been to the president personally,'was not to him acting for it.</p> <p>Banks and Banking — National Banks — Suit for Money Lent to — Account Stated as Defense.</p> <p>7. A statement, rendered a depositor by a national bank which had been borrowing money from her, that merely showed the amounts checked out of her account, and casually credited certain notes, but did not purport to be a full statement of her dealings with the bank, could not be pleaded as an account stated by the bank.</p>

From Clackamas: Jambs U. Campbell, Judge. In Banc. Statement by Mr. Justice Burnett.

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by William B. V. Bailey against the Inland Empire Company, a corporation, to recover the sum of $10,000 on a note executed by the defendant to Arthur S. Phillips.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by Mary Everart, mother and guardian ad litem of Clifford Everart, a minor, against Helmuth Fischer and Paul Fischer, partners doing business as The Wardrobe, to recover for personal injuries.

From Miiltnomali: William N. G-atens, Judge. Department 2. Statement by Mr. Justice Moore. This is an action by the Meier & Frank Company against Albert M. Mitlehner and Jane Doe Mitlehner, his wife, to recover money.

From Marion: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by O. E. Price against The Boot Shop, a corporation, and Gr. W. Eyre, to recover damages in the sum of $810.65 for an attachment against the goods which plaintiff had purchased from the Boot Shop and which Gr. W. Eyre had guaranteed to be free from all encumbrances. On March 7, 1912, plaintiff purchased a certain stock of goods in Salem, Oregon, owned by The Boot Shop.

From Tillamook: Webster Holmes, Judge. Department 2. Statement by Mr. Justice Harris. Mertie D. Lane, E. H. Lane, Silas J. Sbourds and Florence M. Fabrique (or Kreps) were tbe respective owners of certain parcels of land, aggregating about 345 acres, in Tillamook County, and situated near tbe ocean beacb.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by Pete Kamboris, as administrator, against the Oregon-Washington Railroad & Navigation Company, a corporation, to recover damages sustained by the estate of Saranti Tsepeila, also known as “Saratan George,” by the negligence of the defendant. The cause was tried to the court and jury, and a verdict for $3,000 rendered. From the following judgment the defendant appeals.

From Clatsop: James A. Bakin Judge. In Banc. Statement by Mr. Chief Justice Moore.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Benson. This is a suit by Gordon Lang and others to enjoin the City of Portland from using block No. 132 in said city as a site for the erection of a public auditorium.

From Multnomah: Robert G. Morrow, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Rothchild Bros., a corporation, against Leroy Lomax. It appears by the complaint filed October 10, 1912, that the defendant adressed to the plaintiff, a corporation, the following letter: “Portland, Or., Feb. 24, 1912. “Messrs.

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

<p>Pleading — Judgment on Pleadings — Statute.</p> <p>1. Where defendant answered admitting all the material allegations of the amended complaint with certain averments deemed sufficient to support equitable relief, and plaintiff tendered an issue at law upon the sufficiency of the answer together with a motion for judgment on the pleadings, the pleadings were completed, and the court might enter judgment thereon, within Section 79, L. O. L., providing that, when the pleadings are complete, the court may upon motion grant such judgment or decree as the moving party is entitled to thereon.</p> <p>Compromise and Settlement — Disputed Claim — Effect.</p> <p>2. Where plaintiff had claims against defendant the correctness of which was disputed and in settlement thereof they agreed upon a balance which the defendant promised to pay, such settlement constituted a new and valid agreement which was enforceable at law, unless set aside for fraud or mutual mistake; and a pleading that defendant relied on plaintiff’s oral statement did not show a “mutual mistake” between the parties.</p> <p>Action — Stay—Another Action Pending.</p> <p>3. In an action for the amount due under a compromise and settlement, defendant’s answer, not purporting to be a pleading, wherein he acted as plaintiff and being only a renewed attempt to get a detailed statement of accounts, which matter was decided against him on motion to make the complaint more definite and certain, was not a bill whieh should have been disposed of by decree on the equity side before judgment on the law side, within Section 390, L. O. L., providing that in an action at law where defendant is entitled to equitable relief he may with his answer file a complaint in equity in the nature of cross-bill staying the proceeding at law, which may be enjoined or allowed to proceed in accordance with the final decree.</p> <p>[As to when action is “pending,” see note in Ann. Gas. 1914D, 1007.]</p> <p>Action — Equitable Defenses.</p> <p>4. An equitable defense cannot be interposed against ab action at law.</p>

From Multnomah: James U. Campbell, Judge. Department 2. Statement by Mr. Justice McNary. The defendant, J. M. Donahue, was indicted, tried and convicted of the theft of certain sawlogs, and from the judgment and sentence imposed, appeals.

<p>Sales — Conditional Sales — Assignment of Buyer’s Note — Effect.</p> <p>1. A bill of sale and assignment of the conditional buyer’s note carries with it the seller’s contract of conditional sale.</p> <p>Replevin — Pleading—Cause of Action.</p> <p>2. A reply in replevin for tools and machinery, alleging title derived by bill of sale from the original owner, subject to a conditional contract of sale, an assignment of the conditional buyer’s note and a bill of sale to plaintiff, whereby he succeeded to all the rights of' his assignor, including the right to demand performance of the terms of the conditional contract of sale, and a forfeiture by the conditional buyer of his right to retain the property by reason of failure to pay the stipulated installments, showed an absolute title in the plaintiff at the commencement of the action.</p> <p>Pleading — Complaint—Reply—Departure.</p> <p>3. Sueh reply was not inconsistent with a complaint alleging that plaintiff was the owner and entitled to immediate possession of the tools and machinery described, that defendant at the commencement of the action was in possession, a demand for possession, refusal to deliver, and a wrongful withholding.</p>

Original proceeding in mandamus. In Banc. Statement by Mr. Justice Eakin. Tbis is a mandamus proceeding commenced originally in tbis court by J. F. Pby against Ed. Wright, county clerk, for tbe purpose of compelling bim to issue to plaintiff a certificate of election as county judge.

From Polk: Webster Holmes, Judge. Department 2. Statement by Mr. Justice Harris. This is a suit by John Nichols and Mildred Nichols, his wife, against Elizabeth Ingram and John M. G-rant, as sheriff of Polk County, Oregon.

<p>Municipal .Corporations—Street Improvements—Patented Material.</p> <p>1. In the absence of fraud, collusion or unfair dealing on the part of city officers, although the city charter provides that the work of improving a street must be let to the lowest responsible bidder, and although the city council must designate in advance the character of-the improvement, such council, if it deems best, may provide that the paving of a street shall be of a certain kind of patented material, the owner of the patent not being the contractor, but having offered to furnish at a fixed price to whichever contractor might have his bid accepted: First, the right to use its patented process for paving; second, the machinery to lay snch paving; and, third, skilled labor and supervision for the work.</p> <p>[As to right of municipality when required by law to let contracts at public bidding to contract for patented or monopolized article, see note in Ann. Cas. 1915B, 460.]</p>

Prom Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit by George Wetherby (the Title & Trust Company, a corporation, with the will annexed of the estate of George Wetherby, deceased, Margarita Sanders and Anna Duncan, heirs at law of said George Wetherby, deceased, substituted as plaintiffs), against Jennie M. Griswold to enforce the specific performance of a contract to purchase land.

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

From Marion: Percy R. Kelly, Judge. Department 1. Statement by Mr. Justice Benson. This is an action by Maggie May Ivie against E. C. Minton for slander.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice McBride. This is an action by Alice C. Porges against Walter E. Jacobs to recover damages for an alleged nuisance.

From Multnomah: William N. Gatens, Judge. Department 2. Statement by Mr. Justice Benson.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is a motion, filed in the lower court April 20, 1914, by Ella E. Gibbons, to modify a decree of divorce so as to require the father, John S. Gibbons, to pay for the past support and the future maintenance and education of their minor children.

<p>Constitutional Law-—Intoxicating Liquors—Personal Rights—Liberty.</p> <p>1. An ordinance making it an offense for one holding a license for the sale of intoxicating liquors to permit a woman, as guest, to visit, frequent, and loiter in the room and place where such liquors are kept for sale did not interfere unnecessarily with the individual liberties of women citizens, and was valid.</p>

<p>Municipal Corporations — Charter Amendment — Adoption of Resolution.</p> <p>1. Under an ordinance passed to carry out the initiative and referendum powers reserved to voters of municipalities by Article IV, Section la, of the Constitution and Article XI, Section 2, of the Constitution, providing that an amendment to the charter might be proposed and submitted to vote by resolution of the council filed with the recorder at least 21 days before the election thereon, a resolution to submit a charter amendment, adopted on February 8th, and filed and published “to come up for seeond reading and final passage” on February 19th, was filed within the 21 days before the special election set ,for March 3d, as from the day of filing all interested persons had an opportunity to consider the details of the amendment, which was the purpose of the ordinance.</p> <p>Municipal Corporations — Election—Resolution.</p> <p>2. Section 3481, L. O. L., part of the aet on direct legislative elections, by its terms applying only to the operation of the initiative and referendum in cities as to matters not conflicting with existing municipal legislation, providing that no resolution shall be effective until 30 days after its passage by the council or 30 days after its passage over the mayor’s veto, did not govern a proceeding to amend a city charter, under the authority of the Constitution, as to the exercise of powers thereby conferred; but the ordinance provisions governed such proceeding, and thereunder a resolution for a vote upon a charter amendment was effective immediately upon its adoption by the council.</p> <p>Municipal Corporations — Amendment to Charter — Election—Sufficiency of Ballot.</p> <p>3. Under an ordinance providing that charter amendments submitted by the city council without initiative petitions shall be designated on the ballot “Charter Amendments Submitted to the Voters by the City Council,” a ballot for a special city election to vote solely upon, a bill for an act to amend the eity charter by providing for a water supply, to issue bonds therefor, and to create a construction commission, not containing the prescribed designation, was sufficient, as it informed the voters so that they eould intelligently express their will; mere irregularities in the form of a ballot, nor preventing a full and free expression of the will of the electors, being immaterial, and not vitiating the election.</p> <p>Municipal Corporations — Powers—Construction of Waterworks.</p> <p>4. The construction of waterworks is peculiarly a local matter, within the authority of a municipality to make suitable provision therefor.</p>

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Harris. This is an action by Clinton D. Phelps against the Studebaker Corporation of America, in which F. E. McGinnis, administrator, was substituted as plaintiff after the death of the original plaintiff. The defendant, an automobile manufacturer, maintained a retail sales department in Portland, Oregon. The plaintiff was employed by defendant on January 21,1913, as a retail salesman.

From Multnomah: Robert G. Morrow, Judge. Department 1. Statement by Mr. Justice McBride. This is an action by Guy G. Barnum against Herbert Lockhart to recover installments alleged to be due upon a contract to purchase real estate.

<p>Trademarks and Trade Names—Unfair Competition—Test—Likelihood of Deception.</p> <p>1. The test of unfair competition by a subsequent manufacturer is whether he puts his wares on the market in such form and manner that deception of the ordinary buyer in the ordinary course of business is likely or probable; a showing of specific instances of purchasers being deceived not being necessary, and mere possibility of deception no-t being enough.</p> <p>Trademarks and Trade Names — Unfair Competition — Deception—Evidence.</p> <p>2. The Mallory pulleys held not put on the market in such form or manner that deception of the public into thinking it is buying those of the Columbia Engineering Works, a prior manufacturer, is likely or probable, notwithstanding like coloring or manganese sheaves.</p> <p>Trademarks and Trade Names — Unfair Competition — Advertising Repair Parts.</p> <p>3. It is not unfair competition with plaintiff, a manufacturer of pulleys, for defendant, a subsequent manufacturer, to advertise “our sheaves and pins fit your old blocks,” making and selling repair parts for pulleys other than those manufactured by defendant not being unfair competition, if there is no deception, and the goods are not put out as those of another.</p>

Prom Multnomah: Thomas J. Cleeton, Judge. Department 2. Statement by Mr. Justice Eakin. This is a proceeding instituted by the cousins of Mary Eoelfs, deceased, against Mary Ann White, Jane Chambers, Ellen Jackson and May Ellen Jackson, sisters and relatives of Thomas Jackson, second husband of said Mary Eoelfs, deceased, relating to the distribution of the estate of said decedent.

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Burnett. The plaintiff, Henry Jennings & Sons, a corporation, brought replevin against Andy Weinberger, as constable for Portland district, in Multnomah County, Oregon, for what may be termed the furniture in a hotel in Portland of the value of $3,000, demanding the nsnal alternative judgment with $500 damages.

From Multnomah.: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Benson. This is an action by A. C. Barclay against the Oregon-Washington Railroad & Navigation Company, a corporation, for damages for personal injuries sustained by reason of a collision of two trains of defendant’s cars occurring in Malheur County.

From Marion: Percy R. Kelly, Judge. Department 1. Statement by Mr. Justice McBride.

<p>Reformation of Instruments — Grounds—Mistake and Fraud.</p> <p>1. Where an instrument does not express the intent of the parties owing to mistake on one side and fraud, bad faith or inequitable conduct on the other or by one who was intrusted with having the contract reduced to writing, the instrument may be reformed.</p> <p>Reformation of Instruments — Sufficiency of Evidence — Fraud.</p> <p>2. Evidence in a grantor’s action for the reformation of a deed left with the grantee to insert the name of his wife, as a grantee, held, to show that the second deed, on the suggestion of the grantee and without any mention thereof to the grantor, left certain street liens out of the exceptions from the warranty, in fraud of the grantor.</p> <p>[As to reformation of instruments on the ground of mistake, see notes in 30 Am. St. Rep. 621; 117 Am. St. Rep. 227.]</p>

From Multnomah: John S. Coke, Judge. This is a suit by Anders Highland and others against Ole Tollisen to set aside an order of the County Court made in settling the final account of Ole Tollisen, as administrator of the estate. of L. Highland, deceased. The facts are set forth in the opinion of the court.

<p>Exceptions, Bill of — Contents—Whole Testimony.</p> <p>1. Under Section 171, L. O. L., providing that no particular form of exception shall be required, but that the objection shall be stated with so much of the evidence and other matter as is necessary to explain it and no more, a purported bill of exceptions, which is a full transcript of the evidence taken at the trial consisting of 440 typewritten pages, is not a bill of exceptions except as to the motion for nonsuit, and will be considered only for that purpose.</p> <p>Exceptions, Bill of — Contents—Statutory Requirements.</p> <p>2. Section 171, L. O. L., providing that no particular form of exception shall be required, but that the objection shall be stated with so much of the evidence and other matter as is necessary to explain it and no more, was not affected by the amendment to Article VII, of the Constitution, in 1910 (see Laws 1911, p. 7), which provides among other things that either party might have attached to the bill of exceptions the whole testimony.</p> <p>Master and Servant — Injuries to Servant — Negligence of Superintendent — Employers’ Liability Act.</p> <p>3. Under the Employers’ Liability Act (Laws 1911, p. 17), Section 2 of which provides that the manager, superintendent, foreman, etc., is held to be the agent of the employer, but does not create a liability upon the superintendent or manager, an injured employee may recover against the employer for the negligence of the manager or superintendent, but not against the manager or superintendent personally.</p> <p>Master and Servant — Injuries to Servant — Master’s Liability — Delegation of Duty.</p> <p>4. Where the manager and superintendent of an electric company superintended the work of repairing the wires, and the superintendent himself turned on the current while the lineman was in a place of danger, the company is liable for the superintendent’s act, notwithstanding his claim that another lineman had assumed the responsibility of looking out for the safety of the men.</p> <p>Trial — Instructions—Questions of Law — Question for Court.</p> <p>5. In an action for personal injuries to the servant, the court should instruct the jury whether the action comes within the Employers’ Liability Act (Laws 1911, p. 16), or under the common-law rules, and not leave that question for the jury to determine.</p> <p>Master and Servant — Injuries to Servant — Laws Governing — Employers’ Liability Act.</p> <p>6. Where an employee was injured while repairing electric wires, the case was clearly one of work in repairing or altering a structure involving danger and came within the provisions of the Employers’ Liability Act (Laws 1911, p. 16).</p> <p>[As to what is accident arising out of and in course of employment within Employers’ Liability Act, see note in Ann. Cas. 1912D, 1284.]</p> <p>ON EEHEAKING.</p> <p>Master and Servant — Action for Injury — Sufficiency of Complaint.</p> <p>7. A complaint in a lineman’s action against his employer, an electric company, and its superintendent and general manager, charging that, while he was engaged in repair work under the direction and supervision of its superintendent and general manager, a high-tension current was turned on near-by drop wires without notice to him, though the danger of his situation was known, whereby he was badly shocked, burned and disfigured, stated facts sufficient to justify a recovery under the common law, or under the statute (Employers’ Liability Act; Laws 1911, p. 16).</p> <p>Action — Joinder—Separate Causes of Action — “Cause of Action.”</p> <p>8. Within Section 67, L. O. L., requiring that a complaint shall contain a plain and concise statement of the facts constituting the cause of action, a “cause of action” comprehends a legal right on the part of the plaintiff, and a breaeh of a corresponding duty on the part of the defendant to accord that right, so that all breaches of legal duty arising out of one transaction, whether flowing from the common law or from the statute, constitute but one cause of action, unless the statutory remedy is so inconsistent with the common-law remedy that the same judgment could not be rendered uppn recovery, in which case the plaintiff may be required to elect upon which cause of action he will proceed.</p> <p>Master and Servant — Action for Injury — Pleading—Single Cause of Action — Instructions.</p> <p>9. In a lineman’s action for injury while repairing wires, by the aet either of his employer’s general manager or superintendent in the turning a current on near-by drop wires without notice to him, although they knew of his dangerous situation, whereby he was injured, wherein the defendant employer, without demurrer or motion to make mote definite and certain or to elect, answered, denying all allegations of negligence, and pleading assumption of risk and contributory negligence, and in which the testimony went in with few objections on either side, the ease permitted recovery either at common law, or under the Employers’ Liability Act, in which the measure of damages was the same, so that it was not error to instruct as to defendant’s liability at common law, and under the statute, and that if the acts charged showed a liability or want of liability, tested by the whole law, they should return a verdict consonant therewith, and that under the Employers’ Liability Act the defenses of contributory negligence and assumption of risk should be eliminated.</p> <p>Appeal and Error — Harmless Error — Admission of Evidence.</p> <p>10. In a lineman’s action for injury, joining the employer’s general manager, the allowance of the cross-examination of the manager so as to give him an opportunity to state that he had nothing to do with the installation of certain wires and release himself from any liability on that account, if erroneous, was harmless.</p> <p>Master and Servant — Action for Injury — Evidence.</p> <p>11. In a lineman’s action for injury while repairing wires, by the turning of a current on nearby drop wires, evidence as to the dangerous situation of the drop wires was material upon the degree of care required of defendants in causing the current to be turned on them while plaintiff was working near them.</p> <p>Trial — Objection to Evidence — Sufficiency.</p> <p>12. The objection that testimony is immaterial, irrelevant and incompetent, without any statement as to why it is so, is insufficient.</p> <p>Master and Servant — Representatives—Liability—Warning.</p> <p>13. The general manager of an electric company, and its superintendent, both representing-it in repair work, were bound to exercise reasonable eare to prevent injury to a lineman, and, under the Employers’ Liability Act, it was the duty of eaeh to use every eare practicable for his safety, and they were liable for their failure to warn him of the fact that a current had been turned on near-by drop wires, as to which he was ignorant, and whieh, together with their failure to warn, was the proximate cause of his injury.</p> <p>Appeal and Error — Harmless Error — Conduct of Trial — Remarks of Court.</p> <p>14. The act of the trial judge in reading portions of the Employers’ Liability Act to the jury, and remarking after he had read its title that the act was passed by an affirmative majority in 1910, and beeame effective December 3, 1910, was not prejudicial error.</p> <p>Trial — Instructions—Reading from Statute.</p> <p>15. In a lineman’s action for injury, the action of the trial court, after reading a section of the Employers’ Liability Act, in saying that that was the point to which he directed their especial attention, and thereafter reading the part providing that all persons in charge of or responsible for any work involving danger to an employee should use every practicable precaution and device for safety, was not objectionable.</p> <p>Trial — Instruction—Ignoring Issues, Defenses or Evidence.</p> <p>16. In a lineman’s action for personal injury from the turning on of current on drop wires near where he was working, a charge on an employer’s duty to use every precaution and device practicable for safety, ignoring the limitation of duty by the necessity for preserving the efficiency of the structure or device, was misleading.</p> <p>Trial — Instructions—Duty of Jury.</p> <p>17. An instruction that it is the jury’s duty to follow the instructions given, and they were bound to decide a case without any feeling or prejudice for or against the plaintiff, the corporation defendant, or the individual defendants, and on its merits, as between two individuals, was proper.</p> <p>Trial — Instructions—Appeal to Sympathy.</p> <p>18. In a lineman’s action for injury from a current turned on drop wires near those which he was repairing, the court’s addition to a requested proper instruction on the jury’s duty to follow the law, by stating that, so far as sympathy and prejudice were concerned, neither had any place in a courtroom, but that did not mean that a man had to steel himself against his sympathies, but only that, if they believed the faets one way, they ought not let sympathy alone find a verdict, in view of plaintiff’s crippled condition ancf defendants’ gross negligence, was erroneous as allowing the play of sympathy.</p> <p>Appeal and Error — Review — Reversal — Technical Errors — Constitutional Provisions.</p> <p>19. Under Article VII, Section 3, of the Constitution, as amended in 1910 (Laws 1911, p. 7), providing that, in actions at law where the value in controversy shall exeeed $20, the right of trial by jury shall be preserved, that on appeal to the Supreme Court either party may attach to the bill of exceptions the whole testimony, the instructions, and any other matter material to the decision on appeal, that, if the Supreme Court is of the opinion that the judgment appealed from should have been rendered in the ease, it shall be affirmed, notwithstanding error at the trial, that, if of opinion that the judgment should be changed, and that it can determine the judgment which should have been entered, it shall direct the entry of such judgment as in equity cases on appeal, the Supreme Court, on appeal by defendant in a servant’s action for personal injury, and on a showing of trial error in the instructions rendering the verdict and the judgment thereon erroneous, but not void, and with all the testimony before it, would retry the case, set aside the judgment below, and enter the judgment which should have been rendered.</p> <p>Statutes — Construction—Legislative Intent.</p> <p>2u. Statutes snouid be interpreted according to the legislative intent, to be ascertained from the whole statute and a consideration of the mischiefs which it was designed to remedy.</p> <p>Jury — Right to Trial by Jury — Power of Legislature.</p> <p>21. The legislature cannot enact a law abolishing jury trials in law actions, nor can a law court arbitrarily refuse to allow a jury to be called in such eases.</p> <p>[As to relation of Magna Charta to jury trial, see note in Ann. Cas. 1914A, 873.]</p> <p>Constitutional Law — Construction—Repugnant Provisions.</p> <p>22. Where two provisions of a written Constitution are repugnant to each other, that which is last in order of time and in local position is to be preferred.</p> <p>Constitutional Law — Construction—General and Particular Intent.</p> <p>23. A general intent must control a particular intent, though such rule must sometimes give way, and effect be given to a particular intent plainly expressed in one part of a Constitution, although apparently opposed to a general intent deduced from other parts.</p> <p>Damages — Measure of Damages — Personal Injury.</p> <p>24. A lineman 30 years of age, who was earning $2.50 a day, and who, as a hook-tender in a logging camp, eoiild occasionally earn $3.50 to $5 a day, who was badly crippled, though not wholly disabled from doing some light work, would be fairly compensated for his injury by an award of $14,000.</p>