Volume 78 — Oregon Reports

From Lane: William Galloway, Judge. Statement by Me. Justice Buenett.

From Multnomah.: Calvin TJ. Gantenbein, Judge. This is a suit by Rosa B. Sutton against James N. Sutton for divorce, in which defendant filed a cross-complaint. From a decree in favor of defendant, plaintiff appeals! Respondent moves to dismiss appeal.

From Multnomali: Bobert G. Morrow, Judge. Statement by Mr. Justice Burnett. This is an action by Otto Grice and Florence Grice against the Oregon-Washington Bailroad & Navigation Company, to recover damages from the defendant, a common carrier engaged in interstate commerce, for failure to deliver goods intrusted to it by the plaintiffs for shipment from Spokane, Washington, to Portland, Oregon.

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice Burnett. Tbis is a suit originally brought by Oswald C. Hansel, for whom was substituted Paul Hansel, styling bimself trustee, to set aside a mortgage made to the defendant A. W. Norblad and a deed to C. W. Mullins covering real estate in Clatsop County, as well as a bill of sale to both of them of personal property belonging to Oswald C. Hansel.

From Multnomah.: George N. Davis, Judge. Statement by Mr. Justice McBride.

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Harris. McLain Cooper seeks to cancel 10 land contracts, only one of which was made with him, while the others were signed by different persons. Tbe Hillsboro Garden Tracts, a private corporation, paid $85,000 for 473 acres of land, known as tbe Connell farm, and then platted and subdivided most of tbe property.

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Harris. This is a suit by W. E. Marshall against the Hillsboro Garden Tracts, a private corporation. The plaintiff seeks to annul a land contract made with the defendant. On February 19, 1912, W. E. Marshall agreed in writing to purchase from the deCendant the north half of tract 4, in block 8, of Hillsboro Harden Tracts, the purchase price being $687.50, payable in installments.

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Harris. On March 9, 1912, Martha Henrickson agreed to purchase from the defendant, a corporation, five acres described as tract 3, in block 8, of Hillsboro Garden Tracts for the price of $1,375, payable in installments. The plaintiff paid $343.75, took possession of the land, and made permanent improvements.

From Multnomah: John P. Kavanatjgh, Judge. Statement by Mr. Justice Burnett. This is a suit by L. D. Roberts against B. M. Lombard, Caroline S. Lombard and D. G-. Wilson.

From Linn: Percy R. Kelly, Judge. Statement by Mr. Justice Bean. This is an action by George O. Adams against the Corvallis & Eastern Railroad Company, for damages for personal injuries claimed to have been received by plaintiff while in the employ of the defendant company. The cause was tried before a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $4,000, from which judgment defendant appeals.

<p>Exceptions, Bill of — Incorporating Evidence.</p> <p>1. Failure to inelude all of plaintiff’s testimony in a bill of exceptions does not prevent hearing the question of nonsuit, since Article YII, Section 3, of the Constitution as amended, is complied with by attaching all testimony to the bill of exceptions.</p> <p>Contracts — Performance—Sufficiency—Building Contracts.</p> <p>2. Where a contract required a monthly statement of account “covering labor, materials,” etc., used in a building, and that “all receipted vouchers” be turned over by the contractor to the owner, the contractor’s failure to take vouchers for labor is failure to substantially perform the contract, and he cannot recover an alleged unpaid balance, although canceled cheeks are offered in lieu of vouchers to show the payments made for labor.</p> <p>Payment — “Voucher.”</p> <p>3. A “voucher” is an instrument that shows on what account, or by what authority, a particular payment of money is made, or that services of payee entitle him to the payment, and canceled cheeks are not vouchers, as they would not show such existence.</p> <p>[As to when acceptance of checks constitutes payment, see note in 69 Am. St. Rep. 346.]</p> <p>Contracts — Breach—Acquiescence—Injury.</p> <p>4. Where plaintiff, a contractor, agreed to furnish to defendant owner vouchers for all labor and material claims paid, and he never secured such vouchers for labor, the fact that defendant was present when laborers were paid, saw that no vouchers were taken, and did not object, does not estop him from setting up the contract, sinee the plaintiff did not, by reason of such acts of defendant, alter his position to his injury.</p>

From Multnomali: Henry E. McGinn, Judge. Statement by Mr. Justice Benson. This is an action by J. W. Taggart against J. N. Hunter and William Staats to recover a broker’s commission on a sale of real estate. Defendants appeal from a judgment on a verdict for $4,500 in favor of plaintiff.

From Douglas: James W. Hamilton, Judge. Statement by Me. Justice McBride. This is a suit by Etella Peterson against Emma B. Thompson, W. C. Harding Land Company, a corporation, W. C. Harding and Ada Harding, husband and wife, to foreclose a mortgage against a tract of land in Douglas County, Oregon, and in addition to secure a personal judgment against tlie defendants, W. C. Harding Land Company and W. C. and Ada Harding, husband and wife.

Prom Multnomah: Robert Q-. Morrow, Judge. Statement by Mr. Chief Justice Moore. This is a suit by Jessie A. Miller and others against the City of Portland, a municipal corporation, to enjoin the enforcement of a lien for a part of the expenses incurred in improving streets.

From Multnomah: Robert Gr. Morrow, Judge. Statement by Mr. Justice Bean. This is a special proceeding commenced by. the State of Oregon to escheat the property of Henry D. Winters, deceased. The information alleges that Henry D. Winters in his lifetime was the last person lawfully seised of the real property described therein, and left no heirs or known kindred capable of inheriting his property and estate, and that the same had escheated and vested in the State of Oregon.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Chief Justice Moore. • This is a suit to enjoin tbe use of a trade name.

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice Bean. This is a suit in the name of the State of Oregon, upon the relation of B. W. Otto, against School District No. 3 of Clatsop County, Oregon. The facts are as follows: In 1915 the legislature of the State of Oregon passed an act providing for the dissolution of union high school districts: Laws 1915, pp. 52-55.

Prom Multnomah: John B. Kavanatjgh, Judge. Statement by Mb. Justice Bean. This is an action brought by the City of Portland, for the use and benefit of W. W. Swan, against the New England Casualty Company, a corporation, the Oregon Hassam Paving Company, a corporation, and others, to recover the sum of $78.75 upon a bond executed by virtue of the terms of Section 6266, L. O. L. (Laws 1903, p. 256).

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice McBride. This is a suit by the Weiser Land Co., a corporation, against Josephine Bohrer and John Bohrer, to compel specific performance by defendants of a covenant to release certain land from the operation of a mortgage given by plaintiff to defendants. In August, 1912, plaintiff’s grantors, who resided in Weiser, Idaho, entered into a contract to purchase certain lands of the defendants situated in Malheur County.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice McBride.

From Lane: George F. Skipworth, Judge. Statement by Mr. Justice Benson. This is a proceeding by Lucy Belle Mitchell, object-^ ing to the final account of Mary E. Sturtevant, executrix of the estate of Joseph K. Sturtevant, deceased. From an order dismissing an appeal to the Circuit Court, plaintiff appeals. Bespondent now moves to dismiss the appeal to this court. Motion allowed and appeal dismissed.

From Malheur: Dalton Biggs, Judge. This is a suit to foreclose alleged laborers’ liens. From a decree of the lower court favoring defendants, plaintiff appeals. Respondents now move to dismiss the appeal.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Chief Justice Moore. This was an action in the Circuit Court of Malheur County, Oregon, by Mrs. J. S. Edwards against Mrs: Ellen Case, to recover the amount of two promissory notes.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. 1. This is an action by Leo Bouchet against the Oregon Motor Car Company, a corporation, for damages for misrepresentations in the sale of a second-hand ‘ ‘ 1910 model G, 4-cylinder Maxwell automobile. ’’ The action was tried before a jury. A verdict was rendered in favor of plaintiff for $450. From a judgment thereon, defendant appeals.

Prom Malbeur: Dalton Biggs, Judge. Statement by Mr. Justice Harris. Tbe owners of certain arid lands in Malbeur County caused tbe creation of tbe Kingman Colony Irrigation Company, a private corporation, for the purpose of constructing and maintaining pumping plants and a system of ditches for the irrigation of accessible lands owned by the stockholders.

From Yamhill: Webster Holmes, Judge. Statement by Mr. Chief Justice Moore. Tbis is a suit to enjoin tbe sale of real property and to quiet tbe title thereto. Tbe material averments of tbe complaint, as far as involved herein, are to tbe effect: That tbe plaintiffs, Elias M. Yeaton and Alice E. Yeaton, are husband and wife, and tbe defendant W. G-. Henderson is tbe duly elected, qualified, and acting sheriff of Yamhill County, Oregon.

From Tillamook: Webster Holmes, Judge. Statement by Mr. Justice Burnett.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Burnett. This is a suit by the Davin, Michellod Sheep & Land Company, a corporation, against School District No. 71, and others. The facts are as follows: The plaintiff, a corporation, owning property in Wallowa County upon which it pays taxes there, declares against the county, its sheriff and treasurer, and school districts 15 and 71 therein.

From Malheur: Dalton Biggs, Judge. Statement hy Mr. Justice Harris. The Owyhee Ditch Company was organized as a private corporation prior to 1895. By supplemental articles of incorporation, adopted in 1895, the capital stock is fixed at $100,000, and is divided into 10,000 shares.

From Umatilla: Gilbert W. Phelps, Judge. Statement by Mr. Justice Benson. This is an action by Sbaron Arnold Twitckell, by L. E. Twitchell, his guardian ad litem, against W. L. Thompson, for personal injuries.

From Baker: Gustav Anderson, Judge. Statement by Me. Chief Justice Moore. • This is a suit by E. Lucille Stalker and others against Alexander R. Stalker and others to quiet the title to real property.

From Multnomah: Henry E. McGinn, Judge. Statement by Me. Justice Bean. This is an action by Frank R. Oberlin against tbe Oregon-Washington Railroad & Navigation Company, a corporation. Tbe following facts appear of record: Judgment was rendered by tbe Circuit Court in tbis cause October 13, 1914. Notice of appeal and undertaking were served by appellant upon respondent on December 7,1914.

From Baker: John W. Knowles, Judge. Statement by Mr. Justice Bean. This is a suit by Effie L. York, administratrix of tbe estate of James T. York, deceased, against James Dalton for an accounting of the partnership affairs between James T. York, deceased, and James Dalton, the defendant, who were equal partners.

From Multnomah: David R. Parker, Judge. Statement by Mr. Justice McBride. This is an action by J. C. Kahn against the Home Telephone & Telegraph Company, a corporation, to recover damages for personal injuries.

From Marion: Percy R. Kelly, Judge. Statement by Mr. Justice Harris. This is a motion to dismiss an appeal from tbe judgment of tbe Circuit Court of Marion County finding tbe defendant guilty of contempt.

From Union: John W. Knowles, Judge. Statement by Mr. Chief Justice Moore. This is an action by J. H. McHargue against Alex Calchina and was commenced in a Justice’s Court of Union County.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Harris. The plaintiffs, Lane Goff and Laura Goff, are endeavoring to enforce an oral contract, which they claim was made with L. S. Kelsey, for the conveyance of an undivided one-fourth interest in 1,160 acres of land in Union County. L. S. Kelsey died on May 15, 1913, before the commencement of this suit. Laura Goff is the wife of Lane Goff and a daughter of L. S. Kelsey.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Chief Justice Moore. This is a suit by Andrew J. Hegdale against Albert E. Wade and Augustus G. Kingman, to rescind a contract for the purchase of land, to set aside a note and mortgage, and to recover sums of money paid on account of the purchase of the realty and expended in its improvement.

From Baker: Gustav Anderson, Judge. Statement by Mr. Justice McBride. This is an action by John Spain against the Oregon-Washington Railroad & Navigation Company, a corporation, for damages for the unlawful ejection of plaintiff from defendant’s train and for causing him- to be wrongfully and causelessly imprisoned.

Prom Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Benson. This is an action by Albertine H. Rugenstein against Henry J. Ottenheimer, for personal injuries arising from the fact of plaintiff having been struck by defendant’s automobile while walking across Washington Street, in the City of- Portland. The case has been tried three times. Upon the first trial the jury was discharged for failure to agree.

From Baker: Gustav Anderson, Judge. Statement by Mr. Justice Benson.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice Burnett.

From Polk: Harry H. Belt, Judge. Statement by Mr. Chief Justice Moore. This is a special proceeding by Mollie Bowers against Milt B. Grant, to inquire into tbe cause of tbe restraint of ber daughter, Marion Bowers, wbo is four years old, and to secure tbe latter’s release.

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

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. The plaintiff, Krishna Eamaswamy, instituted this action in the Circuit Court for Multnomah County against the defendant, the Hammond Lumber Company, a corporation, to recover damages for a personal injury inflicted upon him while he was in the employ of the defendant. Yerdict and judgment went for the plaintiff in the sum of $6,500. Defendant appeals.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Chief Justice Moore. This action was commenced by F. P. Somers in tbe Justice’s Court of Wallowa County, and appealed by defendant, Erastus Hanson, to tbe Circuit Court.

Prom Union: John W. Knowles, Judge. Statement by Mr. Justice Benson. This is an action by Gr. H. Rush against School District No. 5 of Union County, Oregon. The facts are as follows: The citizens of School District No. 5, Union County, voted for the issuance of bonds, to the amount of $50,000, for the purpose of building and furnishing a schoolhouse. The sale of the bonds realized the sum of $50,203.77.

From Klamath: George Noland, Judge. Statement by Mr. Justice Bean. This is an action by Mello Fretland against Roscoe E. Cantrall and S. T. Summers for damages. The cause being at issue was set for trial on June 12, 1915. It was reached and called for hearing on June 14th, defendants and their counsel appearing, but neither the plaintiff nor his counsel being present.

From Tillamook: Webster Holmes, Judge. Statement by Mr. Justice Benson. This is an appeal from an order of the trial court allowing the final report of a receiver fixing his compensation, discharging him, and exonerating the sureties upon his undertaking from further liability. The facts are as follows: On January 16, 1914, a suit was begun by John Leland Henderson to oust the defendant P. J. Worrall from the management of the hotel owned by the Tillamook Hotel Company.

From Coos: Lawrence T. Harris, Judge. Statement by Mr. Justice Bean.

<p>Receivers—Nature of Officer.</p> <p>1. A receiver is a ministerial officer of the court of equity which appoints him, presumed to be indifferent to the parties of the suit; and holding the property for all parties interested; his title and possession being that of the court.</p> <p>Landlord and Tenant—Covenants—Quiet Enjoyment.</p> <p>2. In ease of a demise, a covenant of quiet enjoyment is implied for from the fact of the letting, it will be presumed that the landlord had the right to lease, and that he agreed to protect the lessee against eviction, either by title paramount or his own aets.</p> <p>[As to covenant of quiet enjoyment, see note in 53 Am. St. Rep. 113.]</p> <p>Landlord and Tenant—Covenants Running With Land—Implied Covenants.</p> <p>3. The implied covenant of quiet enjoyment arising in case of a lease is not in violation of Section 7105, L. O. L., declaring that no covenant shall be implied in any conveyance of real estate, for a lease of land is not a conveyance.</p> <p>Landlord and Tenant—Liability for Rent—Eviction by Receiver.</p> <p>4. Where, at the suit of the landlord, the tenant was evicted, and a receiver, appointed by the eourt, took possession of the premises, the tenant’s liability for rent then ceased, and the landlord could, on foreclosure of a chattel mortgage to secure the rent, recover only that already accrued.</p> <p>Chattel Mortgages — Foreclosure—Sales.,</p> <p>5. Where personal property, subject to a mortgage to secure rent, was sold by a receiver under foreclosure and bid in by the lessor at the full amount of the mortgage, which exceeded the amount of the rent due, the lessor is liable to a subsequent chattel mortgagee for the overplus, and the sale will not, in an analogy to sales of real property, be set aside on the ground that the purchase price exceeded the value of the goods, for sales of personalty are not ordinarily subject to redemption.</p> <p>Beceivers — Sales—Confirmation.</p> <p>6. A receiver being a ministerial officer, his sale of mortgaged personalty must be confirmed by the court in order to be valid.</p> <p>Chattel Mortgages — Bights of Mortgagee.</p> <p>7. Where a note secured by chattel mortgage provided for attorney’s fees in case of suit for collection, an attorney’s fee allowed the holder cannot be recovered from one liable because having obtained property subject to the chattel mortgage.</p>

From Baker: Gustav Anderson, Judge. Statement by Mr. Justice Burnett.

From Marion: 'William Galloway, Judge. Statement by Mr. Chief Justice Mooee. Tbis is a suit by tbe Salem-Fairfield Telephone Association, a corporation, against L. H. McMahan, in which defendant had a decree enjoining the adding of other customers to the line or from interfering therewith, and the plaintiff appeals. Affirmed and remanded for further proceedings.

From Marion: Percy R. Kelly, Judge. Statement by Mr. Justice McBride. This is an action by B. O. Scbucking & Company against E. M. Young, for damages for breach of a contract to sell and deliver bops.

From Douglas: James W. Hamilton, Judge. Statement by Me. Justice Benson. This is an action by the Biddle State Bank, a corporation, against J. A. Link, Wilbert J. Boss, A. Ellen Dunbar, Brice Wilson and R. E. Hutchinson, to obtain judgment upon a promissory note.

From Marion: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit in equity by George Evanhoff against the State Industrial Accident Commission to enjoin the enforcement of Chapter 112, Laws of 1913, generally known as the Workmen’s Compensation Act. In the complaint it is alleged that plaintiff is a subject of the king of Bulgaria, but is a resident freeholder and taxpayer of the State of Oregon.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by Mark R. Upton against the State Industrial Accident Commission of Oregon, and is similar in all respects to that in the case of Evanhoff v. State Industrial Accident Commission, ante, p. 503 (154 Pac. 106). A demurrer to the complaint having been sustained, plaintiff appeals.</p>

From Multnomah: Henry E. McGinn, Judge. This is an action by L. E. Heckinger against J. D. Swank. The defendant being imprisoned by virtue of an execution against tbe person, applied to a judge of the Circuit Court of Multnomah County for his discharge, which was denied, and he appeals.

<p>Municipal Corporations — Validity of Street Assessment on Nonabutting Property.</p> <p>1. The illegal assessment for a street improvement that includes a levy against a nonabutting lot does not render void a valid assessment against property otherwise legally liable.</p> <p>Evidence — When Courts will Take Judicial Notice of City Charter.</p> <p>2. A municipal charter enacted by legal voters of a city is in its nature the result of a special election, and, unless pleaded, courts cannot take judicial notice thereof in the absence of statutory authority so to do.</p> <p>[As to judicial notice of municipal ordinances, see note in Ann. Cas. 1914C, 1232.]</p> <p>Municipal Corporations — Validity of Reassessment for Street Improvement.</p> <p>3. Under City Charter of La Grande, 1909, Section 35, paragraph 9, the city is required to give notice of any proposed street improvement to the owners affected, and having omitted to give such notice, the assessments were held invalid, and any subsequent reassessment under the provisions of said section was also invalid, for the reason that the notice required by the charter was a condition precedent to securing jurisdiction to make the improvement.</p> <p>Municipal Corporations — Initiative Petition — Effect of Adopting Charter by Commissioners.</p> <p>4. By Article XI, Section 2, of the Constitution of Oregon, the legal voters of every city and town are granted authority to adopt, amend or repeal their municipal charter, subject only to the Constitution and criminal laws of the state, and where by an initiative petition of the legal voters of the city of La Grande a new charter was presented to the city recorder demanding that it be submitted to a vote at an election to be held later, the act of the commissioners passing an ordinance adopting sueh charter is not an enactment of sueh charter, but amounts only to an approval thereof, for the reason that Section 3482, L. O. L., does not provide that the ordination of a city charter or an amendment thereto would have the effect of enacting the same into a law, but it is in the nature of a recommendation approving sueh charter or amendment, thereby signifying that no competing amendment as provided in said section was necessary.</p> <p>Constitutional Law — Power to Delegate Adoption of Charter to Council or Commissioners.</p> <p>5. Under the Constitution of Oregon the legislature does not possess power to authorize a city council or commissioners to either adopt or amend eity charters by ordinance, as that authority belongs to the legal voters of every city and town within the state. (Section 2, Article XI, Const.)</p>

Original proceeding in Supreme Court. This is an original mandamus proceeding by the State of Oregon, upon the relation of S. V. Anderson against A. M. Hare, County Judge, Frank .L. Owens and George McKimens, County Commissioners, constituting the County Court of Tillamook County, Orer gon.

<p>Appeal and Error — Sufficiency of Undertaking on Appeal.</p> <p>1. Section 551, L. O. L., provides that the undertaking of the appellant shall be given with one or more sureties to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal; but sueh undertaking does not stay the proceedings, unless the undertaking further provides as follows: (1) If the judgment or decree appealed from be for the recovery of money, or' of personal property or the value thereof, and if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed; an undertaking literally complying with the statute was not insufficient because it failed to state to whom appellant would pay any amount adjudged to be due upon it.</p> <p>[As to liability of sureties on appeal bonds, see note in 38 Am. St. Rep. 702.]</p> <p>Appeal and Error — Only Matters in Bill of Exceptions or the Record Presented for Review.</p> <p>2. During the pendency of an action plaintiff made an assignment for the benefit of its creditors and the assignee was substituted in its place. No mention is made in the bill of exceptions or the abstract of record of sueh substitution, neither does it appear that defendant made any objections or opposed the substitution of said assignee or raised the question in any way in the Circuit Court; therefore the contention now urged by defendant that sueh assignment and the substitution of the assignee in lieu of plaintiff ousted the court of jurisdiction could not be considered.</p> <p>Appeal and Error — Matters Presented for Review by the Record.</p> <p>3. In an action by a lumber company to recover the purchase price of material, which defendant contends was furnished to a contractor and not to defendant, testimony was introduced showing that one Eblin, a contractor, was constructing the building, and that an undertaking given by him in connection with said contract was signed by Metzler & Hegsted. Held that, in the absence of any pleading showing that plaintiff signed said undertaking, and that it contained terms inconsistent with the present contention of plaintiff, and in the absence of the undertaking from the record, the contention of defendant that plaintiff could not recover because it executed the contractor’s bond could not be considered.</p> <p>Pleading — Admissions Obviate Necessity of Further Proof.</p> <p>4. Where, in an action for the purchase price of material, defendant’s counsel admitted during the trial that the amount of lumber described in the complaint, the reasonable value and the amount alleged in the complaint, was delivered, there was no necessity of any further proof concerning the amount of lumber, the delivery or its value.</p> <p>Estoppel — Persons Liable for Purchase Price.</p> <p>5. In an action for the purchase price of lumber,, the fact that plaintiff’s president knew that a contractor was erecting the building for which the lumber was furnished, and that he, either as sueh president or as a member of the firm furnishing the lumber, signed the contractor’s bond, held not to estop plaintiff from seeking to charge defendant as purchaser of the material so furnished.</p> <p>Sales — Evidence as to Price Admissible Under Pleadings.</p> <p>6. In an action for the purchase priee of lumber, though plaintiff sued on an implied contract, it was not error for testimony to be admitted tending to prove that the lumber was to be furnished at certain rates, sinee, when under a complaint based on a quantum meruit, testimony is received tending to prove a contract for the amount demanded, the sum disclosed by sueh evidence will be construed as the reasonable value, in order to effectuate substantial justice.</p> <p>Sales — Instructions in an Action for Price of Material Approved.</p> <p>7. In an action by the Metzler-Hegsted Lumber Company, a corporation, for the purchase priee of lumber that defendant claimed was sold to a contractor and not to it, where there was no allegation that the 'Metzler-Hegsted Lumber Company and Metzler & Hegsted were one and the same institution, it was not error to instruct the jury that the bond given by Metzler & Hegsted as surety for the contractor could not affect plaintiff, because it was not a .party to the instrument, and could be considered only in determining whether plaintiff had knowledge of the contract between defendant and the contractor, and to contradict the testimony of plaintiff’s president, who testified that the lumber was furnished at defendant’s special instance and request.</p> <p>. Appeal and Error — When the Order of Introducing Proof will be Considered Harmless.</p> <p>8. . Where testimony was admitted in rebuttal that might have been introduced in chiefs defendant’s rights were not abused where it had an opportunity to and did oppose the testimony when thus offered.</p> <p>Appeal and Error — Rights not Affected Appeal will be Affirmed.</p> <p>9. When the court cannot say that the rights of the appellant have been substantially affected, the appeal will be affirmed in view of Section 556, L. O. L., providing upon an appeal from a judgment the same shall only be reviewed as to questions of law appearing substantially affecting the rights of the appellant.</p>

<p>Replevin—Essentials Necessary to Maintain Action of Claim and Delivery.</p> <p>1. Tbe action of claim and delivery under Section 283, L. O. L., is purely possessory, and tbe gist is for the recovery of the possession of personal property wrongfully detained by the defendant and to establish plaintiff's right to possession at the time the action was commenced.</p> <p>[As to nature of the action of replevin, see note in 80 Am. St. Rep. 741.]</p> <p>Replevin—Possession of Bond Under Fraudulent Assignment.</p> <p>2. In an action to recover possession of a $1,000 bond under Section 283, L. O. L., plaintiff’s reply alleged that the bond had been delivered by defendant to one G.; that such was without eonsidera-</p> <p>tion, and that the party in possession was only holding it in trust for defendant and subject to his control, and with knowledge of his intent to defraud plaintiff, the motion for nonsuit by defendant at the close of plaintiff’s evidence in chief was properly overruled, for the reason an action will lie to recover possession of personal property where defendant has constructive possession as well as actual possession of the property.</p> <p>Replevin — Instruction as to Setoff in Action of Claim and Delivery.</p> <p>3. In an action of claim and delivery, an instruction to the effect that the only issue to be determined is whether plaintiff is entitled to the immediate possession of the personal property, and if so, the fact that plaintiff is indebted to defendant will not authorize defendant, without invoking the proper remedy at law, to take possession of plaintiff’s property, and apply it or the proceeds thereof to the payment of his claim, is not erroneous.</p> <p>Replevin — Refusal to Give Requested Instruction in Claim and Delivery Action.</p> <p>4. To give the instruction requested by defendant would authorize a creditor, without applying the remedy of attachment, to unlawfully take possession of his debtor’s personal property, and if sold before the action of claim and delivery eould be commenced, apply the proceeds to the payment of his own- demand, and return to such debtor the surplus, if any remained, whieh scheme the law will not countenance, and in refusing such instruction no error was committed.</p> <p>Appeal and Error — Mistake in Entering Judgment Corrected by Motion in Dower Court.</p> <p>5. Where in an action of replevin it appeared that the bond demanded had been sold and a new one issued in lieu thereof, and the canceled bond No. 232, series No. 1, of the Realty Associates of Portland, having been received in evidence, its number and series were entered in the judgment for plaintiff, and the judgment further provided that in ease a return of said bond could not be had, then for the recovery of $850, the value thereof, and defendant failed to move to correct the judgment in this respect, such mistake is unavailing on appeal, for the reason that the proper way to correct an error in a judgment entry in replevin is by motion in the court in which it was rendered, and not by appeal.</p>

<p>Pledges—Evidence—Conversion of Collateral.</p> <p>1. In a suit brought to declare a deed a mortgage and to foreclose the same, evidence examined and held sufficient to warrant a finding to the effect that defendants, who had assigned as collateral security a purchase money mortgage and the notes secured thereby, ratified in plaintiff the title acquired from the purchaser, and therefore could not recover the difference between their indebtedness to plaintiff and the amount of the collateral notes, on the ground that the taking of such deed amounted to a conversion of the collateral.</p> <p>Pledges—Notice of Change in Security Pledged as Collateral.</p> <p>2. As bearing upon the question of ratification, defendants, who had information that the security had been changed in some manner, and are therefore chargeable with all the facts they might have discovered by making the slightest inquiry. (Citing McLeod v. Despain, 49 Or. 536 (90 Pac. 492, 124 Am. St. Rep. 1066, 19 L. R. A. (N. S.) 276).</p> <p>Pledges—Must Act Promptly in Making Election to Abide by or Repudiate Transaction.</p> <p>3. Defendants having information that plaintiff had surrendered the notes and mortgage pledged as collateral and accepted a eonveyanee to the premises from the purchaser, it was their duty to act promptly in making their election to abide by or repudiate the transaction.</p> <p>Pledges — Delay of Three Months Will Constitute Waiver to Treat as Conversion.</p> <p>4. Conceding there was a conversion, and defendants having the option either to repudiate plaintiff’s acts and bring an action at law in trover for damages; or to adopt same and hold plaintiff as a trustee for their benefit, their delay for three months before demanding a surrender of the collateral amounted to a waiver to treat the transaction as a • conversion, and the plaintiff is exonerated from such charge.</p> <p>[As to time within which pledgor may sue to recover pledge or for an accounting, see note in 136 Am. St. Rep. 475.]</p> <p>Setoff and Counterclaim — Query, Right to Separate Claim of Codefendant.</p> <p>5. Plaintiff having joined as defendants both the pledgors and the mortgagors, the latter not having been injured and no allegation being made that plaintiff was insolvent, it is doubtful whether the pledgors can set up an alleged conversion as a counterclaim, in view of Section 401, L. O. L., providing that the counterclaim of the defendant must be one upon which suit might be maintained by defendant against the plaintiff.</p> <p>Mortgages — Conditional Sale or Mortgage Distinguished.</p> <p>6. In a ease where purchasers of land, having given purchase money notes secured by a mortgage on the premises, and the same were assigned to plaintiff by the mortgagee as collateral'- security, conveyed the land to plaintiff under an agreement that they should be allowed to redeem if they desired, by payment of the debt, the transaction was, as to such mortgagors, a conditional sale, and not a mortgage, the debt being extinguished.</p> <p>Mortgages — Attorney’s Fee in Foreclosure of Absolute Deed as a Mortgage.</p> <p>7. Section 422, L. O. L., provides that in a suit to foreclose a lien upon real or personal property other than that of a judgment or decree, if it appear that a promissory note or other personal obligation for the payment of money has been given, the court shall also decree a recovery of the amount of such debt, as in ease of an ordinary decree for the recovery of money. Defendants S. were indebted to plaintiff, and after selling land and receiving purchase money notes secured by mortgage, delivered such notes to plaintiff as collateral. Afterward plaintiff delivered up the notes and mortgage to the purchaser, and accepted a conveyance of the property. Thereafter this suit was instituted by the plaintiff to declare said deed a mortgage and to foreclose the same, and to recover attorney’s fees provided for in' the notes involved herein. Held that although the collateral notes provided for attorney’s fees, and though the notes representing the principal debt also so provided, plaintiff cannot recover compensation for its attorneys.</p> <p>Tender — When Coupled With Impossible Conditions Insufficient.</p> <p>8. A tender, in order to be available, must not be coupled with impossible conditions; therefore, a tender made by a debtor, whieh was coupled with a demand for the surrender of certain collateral notes which the debtor knew his creditor could not produce, will not be sufficient to stop the running of interest, (Citing 27 Oye. 1407.)</p>

From Union: John W. Knowles, Judge. Statement by Mr. Justice Burnett. Tbis is a suit by G-. F. Hall, W. A. Hall and M. M. Hall against the Catherine Creek Development Company, a corporation, to foreclose a mortgage on land in Union County, securing three promissory notes of $7,080 each. With a few exceptions, not important to the discussion, the complaint is admitted.

From Union: John W. Knowles, Judge. Statement by Me. Chief Justice Mooee. This is an action by Wm. Miller and A. C. Miller, doing business under tbe firm name and style of Wm. Miller & Bro., against J. R. Weaver to recover money. Tbe facts are that tbe defendant purchased from H. Towner a farm near Elgin, Oregon, tbe title to wbicb was encumbered by a mortgage of $2,000 in favor of tbe state land board.

<p>From Multnomah: Bobert G. Morrow, Judge.</p> <p>Statement hy Mr. Chief Justice Moore.</p> <p>This is a suit by Campbell’s Automatic Safety Gas Burner Company, a corporation, against Bertha E. Hammer, Harry G. Mourer, Jesse C. Luker, A. A. Cunningham, as trustee of Henry G. Sonnemann et al., bankrupts, John B. Coffey, County Clerk, T. M. Hurlburt, Sheriff, and Bobert J. Upton, to enjoin the issuing of an execution, to restrain a levy thereunder, and to compel the cancellation of a judgment. The cause, being at issue, was tried upon a stipulation of facts to the effect: That on October 26, 1909, a written contract was signed by the plaintiff, a corporation, which for brevity will be called the gas company, and Henry G. Sonnemann, George C. Mourer, George B. Baker and George W. Morgan, whereby the gas company stipulated to issue, sell, and deliver to them 6,000 shares of its capital stock, for $42,000. That this contract was subsequently modified by an oral agreement, by the terms of which the persons named were appointed sole agents of the gas company to sell its stock, and were to receive as their commissions all sums obtained therefor in excess of $7 a share. That Baker and Morgan with the consent of all the parties, transferred their respective interests in the contract to L. C. Hammer and H. G. Luker. That the two latter, Sonnemann and Mourer, sold 6,033 shares of stock at $10 a share, and turned over $60,330 in money and promissory notes, which instruments were received as cash by the gas company, which agreed to pay the commission at the maturity of the notes, but not conditioned upon their payment. That Hammer, Mourer and Luker each assigned his individual interest in the commissions "so earned to the defendants Bertha E. Hammer, Harry G. Mourer and Jesse C. Luker, respectively, of which transfers the gas company was notified. That by consideration of the District Court of the United States for the District of Oregon, H. G. Sonnemann and others were adjudicated bankrupts, and the defendant A. A. Cunningham was elected trustee of their estates, and duly qualified for the trust. That the gas company paid all the commissions so earned, except $6,873.43, to collect which the persons entitled thereto entered into a contract with the defendant Robert J. Upton, an attorney, stipulating to pay him 30 per cent of all sums of money that he might recover on account thereof. That he commenced an action in February, 1912, in the Circuit Court of the State of Oregon for Multnomah County, on behalf of Bertha E. Hammer and others against the gas company, to recover the remainder of the commissions. That before an answer was filed in that action Harry Gr. Mourer, one of the plaintiffs therein, in consideration of $500, settled with the gas company, representing to it that his attorney was a Mr. Blatchley, who was in Southern Oregon and did not expect to return, upon which statement the gas company relied, overlooking the fact that Mr. Upton was the attorney of record of all the adverse parties. That this latter attorney thereupon notified the gas company that he represented all the plaintiffs in that action, and that settlements with such clients should be made with him. That upon receiving such notice the gas company wrote Jesse C. Luker, with whom it had been negotiating, informing him of the notice so given, and received from him a letter, stating that Mr. Upton was not his attorney, but he believed his father, H. G. Luker, had employed Mr. Upton in the transaction of some business not connected with or relating to the commissions. That relying upon the statements contained in the letter, the gas company settled with Jesse C. Luker for the sum of $250. That neither Harry Gr. Mourer nor Jesse C. Luker has any property that is subject to execution. That after these settlements were made the gas company filed its answer in the action against it, but made no mention of the compromises which had been made with Mourer and Luker. That the action referred to was tried, and judgment rendered for the remainder of the commissions, or $6,873.43, against the gas company, which appealed therefrom, whereupon the judgment was modified as to the date from which the interest was to be computed, but in all other respects affirmed: Hammer v. Campbell’s Gas Burner Co., 74 Or. 126 (144 Pac. 396). That the mandate having been entered in the lower court, the gas company paid to the clerk of that court, for Bertha E. Hammer and A. A. Cunningham, trustee, one half of the judgment and interest, and all the costs and disbursements, and thereupon requested Mr. Upton, who had received the money for his clients, to cancel the judgment, but he refused to comply therewith. That if the court should find Mr. Upton entitled to recover from the gas company the entire amount of his attorney’s fee due from Harry Gr. Mourer and Jesse C. Luker, he should be awarded 30 per cent of one half of the judgment referred to; if, however, he should be found to be entitled to recover on Luker’s account only, he should receive 30 per cent of five sixths of that part of the judgment; and if on Mourer’s account only, he should be given 30 per cent of one sixth of that portion thereof.</p> <p>Predicated upon this agreed statement of facts, the defendants’ counsel moved to dismiss the suit on the grounds: (1) That there is no equity in the bill; (2) that the complaint does not state facts sufficient to constitute a cause of suit; (3) that no existence of a partnership or joint venture on the part of the defendants is alleged; (4) that no unsettled accounts are averred to subsist; (5) that no reason for an accounting is stated; and (6) that the prayer of the complaint does not seek any settlement of accounts. This motion was sustained, the suit dismissed and the plaintiff appeals.</p>

From Multnomah: Robert G. Morrow, Judge. Statement hy Mr. Justice Harris. School District No. 1, in Multnomah County, has a population of 20,000 or more persons. Maud L. Richards is the holder of a life diploma, entitling her to teach in any high department of the public schools of the district.

Original proceeding in Supreme Court. Statement by Mr. Justice Bean.