Volume 79 — Oregon Reports

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice Harris. This is a suit on the relation of C. W. Mullins, District Attorney of Clatsop County, against the Port of Astoria, a municipal corporation, and Gr. B. McLeod and others, commissioners of the port.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department 2. Statement by Mr. Justice McBride,</p> <p>This is a suit by George Sykes and others against the Proebstel Land & Adjustment Company, a corporation, to quiet title to certain lots situated in the City of Portland. Plaintiffs claim title through the heirs of Jane Proebstel, the original donee from the United States; these alleged heirs being Thomas Chapman, a surviving brother of Jane Proebstel, Archibald Wood, George Wood, Christina Wood, Eliza De Saw-tell, Margaret Griffin, children of Ann Wood, deceased sister of Jane Proebstel, John Broomfield, and Jeremiah Broomfield, children of Margaret Broomfield, and Maria Hight and Margaret Blackburn, daughters of'James Chapman, a deceased brother of Jane Proebstel.</p> <p>The defendant claims title through numerous children and grandchildren of Andrew Chapman, who, it claims, was an uncle of Jane Proebstel, and whose children and grandchildren are alleged to have been the true heirs of Jane Proebstel. Upon the trial in the Circuit Court there were findings and a decree for plaintiffs, from which defendant appeals.</p>

<p>Corporations — Authority of Agent to Execute Indemnity for Bonding Company.</p> <p>1. Where the undisputed testimony disclosed the fact that the sole duty of an agent of a foreign corporation was to accept service of process and to act as sales manager, and was never authorized to execute a bond indemnifying a bonding company against loss on a contractor’s bond on behalf of or for his principal, held that such principal was not liable for the unauthorized acts of said agent in executing the bond of indemnity, especially where the representative of the bonding company had actual knowledge of the agent’s authority.</p> <p>Principal and Agent — Acts of Agent When Binding on Principal.</p> <p>2. As to third persons, a principal is bound by the acts of his agent, not only when executed in pursuance of actual authority, but also when such acts, are within his apparent authority arising from the manner in which his principal has held him out to the public.</p> <p>[As to acts of agent beyond scope of his authority, see note in 6 Am. St. Rep. 37.]</p> <p>Principal and Agent — Actual Knowledge of Third Persons as to Authority of Agent.</p> <p>3. Where, however, a third person dealing with an agent has actual knowledge as to the scope of such agent’s authority, or when such third party has knowledge of facts which would put him upon inquiry, he cannot then rely upon the apparent authority of such agent.</p> <p>Principal and Agent — Party Deals at Own Peril With Agent of Another.</p> <p>4. Section 705, L. O. L., providing that the rights of a party cannot be prejudiced by the declarations, act or omission of another, except by virtue of a particular relation between them, a party deals at his own peril in transactions with one claiming to be the agent of another.</p> <p>Appeal and Error — Rights upon Review of Party not Appealing.</p> <p>5. Upon an appeal from a decree rendered in a suit on a contractor’s bond, one of the parties not appealing could not question the correctness of an adjudication in favor of another party not appealing.</p> <p>Costs — Allowance of in Equity Proceeding — Discretion of Court.</p> <p>6. The allowance of costs and disbursements in equity cases rests in the discretion of the court.</p> <p>Costs — Prevailing Party.</p> <p>7. Where the appellant was successful on appeal, and was allowed costs against the contractor’s surety, the other defendant subcontractors are not entitled to costs against appellant on motion, for the reason that appellant is permitted to share ratably with other claimants in a fund remaining in the hands of the city, and to that extent was a prevailing party against them.</p> <p>Costs — Adverse Position of Several Claimants on Appeal.</p> <p>8. Where, in such appeal, appellant obtained a reversal, with costs against the contractor’s surety, the other defendant subcontractors will not be awarded costs against appellant on motion therefor, since, in being allowed participation, he was the prevailing party against them to that extent. Neither will they be awarded costs against the contractor’s surety, since as between them and such surety there was no dispute.</p>

<p>Municipal Corporations—Power to Enact Emergency Ordinances.</p> <p>1. Article IV, Section 1, of the Constitution declares that a referendum may be ordered, except as to laws necessary for the immediate preservation of the public peace, health or safety,- and Article IV, Section la, provides that the referendum powers reserved to the people by the Constitution are further reserved to the legal voters of every municipality as to all municipal legislation, taken in connection and construed with Section 3481, L. O. L., that was passed for the purpose of carrying above constitutional provisions into effect, authorizes emergency ordinances, and in view of Sections 47, 48, of the Portland City Charter, permitting the enactment of emergency ordinances, the city had power to enact emergency ordinances.</p> <p>Statutes—Construction of Doubtful Constitutional and Legislative Provisions.</p> <p>2. It is a well-settled rule in this state that contemporaneous construction of constitutional or legislative provisions, and long acquiescence in a particular interpretation, are very persuasive in leading courts to adopt and follow the same construction. (Citing Biggs v. McBride, 17 Or. 640 [21 Pac. 878, 5 L. R. A. 115].)</p> <p>[As to general rules for construction of statutes, see note in 12 Am. St. Rep. 826.]</p> <p>Municipal Corporations—Validity of Ordinance Regulating Motor Buses.</p> <p>3. An ordinance requiring every person operating a jitney bus to obtain-a city license is not unconstitutional and void, because it requires such person to first apply for and secure a certificate from the department of public utilities, neither is it invalid as vesting the commissioner with unreasonable and arbitrary power of issuing or refusing such certificate, thereby preventing one from securing such license, for such ordinance provides the right of appeal from any unjust action on the part of the commissioner.</p> <p>Municipal Corporations—Reasonableness of Classification of Jitney Bus Ordinance.</p> <p>4. An ordinance is not invalid as being unlawfully discriminatory, licensing and regulating the operation of jitney buses, and excluding from its operation railroad cars, street-ears, automobiles used exclusively as sight-seeing cars, hotel buses and taxi-cabs. Jitney buses held to represent a new class of common carriers, and being in a class entirely distinct from those excepted, the classification is therefore not unreasonable.</p> <p>[As to what constitutes discrimination, see note in 48 Am. St. Rep. 236.]</p>

From Hood River: William L. Bradshaw, Judge. In Banc. Statement by Mr. Justice Bean. This is an appeal by A. M. Cannon, for himself, and as- trustee for Guy W. Talbot, George F. Nevins and Oscar Vanderbilt from a decree sustaining the demurrer to their complaint and dismissing the suit against the Hood River Irrigation District, a municipal corporation, and others.

From Sherman: David B. Parker, Judge. Department 1. Statement by Mr. Justice McBride. This is an action by E. Sink to recover upon a promissory note given by J. M. Allen to one Walter H. Moore, and by Mm indorsed as collateral security upon a joint note from himself and J. A. Harbke to the Wasco Milling Bank, in Moro. Harbke subsequently paid the note given to the bank, and the Allen note was turned over to him.

From Crook: T. E. J. Duffy, Judge. This is an action by George H. Brewster against G. Springer, County Judge, J. F. Blanchard and H. J. Overturf, County Commissioners, in which plaintiff prevailed and defendants appeal. The facts are set forth in the opinion of the court. Respondent files motion to dismiss the appeal.

From Marion: James W. Hamilton, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is an action by George McGilchrist, a minor, by William McGilchrist, his guardian ad litem, to recover damages for a personal injury.

<p>Weapons — Negligence—Evidence.</p> <p>1. Where a complaint charged that plaintiff was negligently shot, and claimed that defendant carelessly cocked a shotgun in his hands and negligently held said gun in such position that plaintiff became injured when the gun was discharged, in order to refute this, defendant is entitled to show that when he received the weapon the hammers were already cocked.</p> <p>[As to diligence required of persons using explosives, see note in 77 Am. St. Rep. 29.]</p> <p>Negligence — Disputed Questions of Fact are Questions for the Jury.</p> <p>2. When the facts are such that reasonable men may differ as to whether there was negligence, it is for the jury to decide.</p> <p>Weapons — Actions—Negligence—Question for Jury.</p> <p>3. In an action to recover damages for injury received by a shotgun negligently discharged while in the hands of defendant, the question of defendant’s negligence held for the jury.</p> <p>Weapons — Actions—Instructions to Jury — Negligence—Contributory Negligence.</p> <p>4. In an action for damages by reason of being negligently shot while out with a hunting party, the court instructed the jury that plaintiff, in order to recover, must establish by the greater weight of evidence that defendant carelessly and negligently shot him with a shotgun, and further charged that a hunting party must use the care and caution such as any reasonably prudent man would use under the circumstances, and that each member of such party is presumed to know that a loaded shotgun is a dangerous weapon, and that it was for the jury to determine from the evidence whether plaintiff contributed to his injury by getting out in front, and that in so doing, if he did so, was he careless or negligent. Held that the instructions did not place the burden of proving a want of contributory negligence upon plaintiff. Other instructions, after referring to defendant’s claims, among which was that of contributory negligence, charged specifically that he must establish his allegations by the greater weight of evidence.</p> <p>Appeal and Error — Review—Instructions as to Measure of Damages Harmless.</p> <p>5. Where plaintiff, who was shot while hunting, recovered no damages, errors in the instructions as to the measure of damages are harmless.</p> <p>Weapons — Degree of Care Required of One in Possession of Firearms.</p> <p>6. In an action for damages by one shot while out hunting with a party, the court charged the jury that a loaded shotgun was a dangerous weapon and will produce serious injury when discharged at another person, either accidentally or otherwise, and that the law makes each member of a hunting party know that fact, and that it is the duty of each to use that degree of care and precaution such as any reasonably prudent man would use under the circumstances, correctly states the degree of care persons are bound to use, the law requiring persons having possession or control of firearms to exercise the utmost caution that injury may not come to others, the degree of such care is to be commensurate with the dangerous character of the weapon.</p> <p>Weapons — Actions—Question for the Jury as to Contributory Negligence.</p> <p>7. As to the question of contributory negligence, each ease is governed by its own peculiar facts, and it is not reversible error for the court to submit to the jury the question whether plaintiff contributed to his injury by going in front of the others into the hunting ground.</p>

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Frank W. Decker and Louise J. Decker, against Clifford L. Jordan, Julia E. Jordan, John A Dale, Kate Dale and W. C. Finke, to foreclose an executory contract for the sale of land. It was admitted that on May 21, 1910, plaintiffs and the defendant Clifford L. Jordan covenanted with, each other in writing, whereby the former agreed to sell to the latter certain real estate in Josephine County for $10,000, $1,000 of which was paid at the execution of the agreement leaving $5,000 to be paid by June 15, 1910, and the remaining $4,000 in equal annual installments beginning November 15, 1911, with interest at 7 per cent per annum, payable annually. It was stipulated that upon the payment of $5,000 as stated, Jordan should be allowed to take possession of the property, and that he should thereafter pay all taxes of every land upon the premises and keep the same clear of liens on his own account. The contract contains the usual stipulation to the effect that in case of default in making any. payment the seller may re-enter and take possession of the estate, the second party waiving notice to quit, and that in such event a forfeiture in favor of the other party shall result as to all sums paid upon the purchase price, the same to be considered as rental for the use and occupation of the premises. The agreement also contains .this clause:</p> <p>“It is further agreed and understood between the parties hereto that upon the second party making the payment of $5,000 within the time and manner herein provided, that thereupon first parties shall execute their warranty deed of the lands herein described conveying said premises unto second party and Julia E. Jordan, his wife, which deed shall be placed in the First National Bank of Grants Pass, together with an abstract of title to all of said property showing a good title thereto, which deed and abstract shall be held in said bank in escrow, and said bank shall deliver same to second party or order upon payment of the purchase price for said property at the time and in the manner herein provided, but in case of default in any of said payments then said bank shall return said deed and abstract unto parties of the first part or order.”</p> <p>It is stated that the plaintiffs have fully complied with all the terms and conditions of their contract to be kept and performed by them. They aver that the defendants Dale, husband and wife, claim some interest in the property through the defendants Jordan, but that the same is subject to the title of the plaintiffs and terms and conditions of the contract. They also assert that after the Dales took possession, a valuable barn on the premises burned, and the insurance on the same was collected by them; and that a large amount of personal property on the tract at the time of making the contract, and which was included in the purchase, has been disposed of and the proceeds retained by the defendants or some of them. Alleging a demand for the possession of the land and a refusal thereof, the plaintiffs pray for a decree adjusting the rights of the parties; for a sale of the premises to satisfy a decree for the remainder of the purchase price; for a receiver; and for an injunction against the defendants interfering with the property.</p> <p>All the defendants answered, the Dales in one, and the Jordans in another. The admissions and denials in both'answers are substantially the same, but are not intelligible on the printed abstract because they refer to certain paragraphs of the complaint by numbers, and no numbers appear there as the paper is set out in the printed abstract. The answer also alludes, in denial, to words in certain lines of the complaint evidently referring to the typewritten or manuscript copy of the original, and hence gives no information on the printed abstract. The Dales claim by assignment from the Jordans to Mrs. Dale, and assert that the plaintiffs have neglected and refused to deliver an abstract of title to the property although frequently requested to do so, and that they are not the owners in fee simple of the lands in question. Various other statements are made in the answer about what the Dales are willing to do, and they claim to have fully complied with all the terms of the contract, except making the payment due November 15, 1911. No actual tender of that or any other installment is alleged in the answer.</p> <p>The reply denies most of the answer of the Dales, and recites some transactions occurring after the execution of the contract, and the payment of the $5,000 whereby the title of the plaintiffs was perfected, and rehearses certain conduct of the defendant John,A. Dale as agent for his wife, which the plaintiffs claim amounts to a waiver of the condition requiring an abstract. After a hearing the Circuit Court made findings of fact and conclusions of law to the general effect that neither party had complied with the terms of the contract so that the plaintiffs might be entitled to foreclose or the defendants to rescind, and rendered a decree dismissing the cause without prejudice to either party and without costs in favor of either of them. Both parties appeal.</p> <p>Submitted on briefs without argument under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).</p>

Statement by Mr. Justice Burnett. This is a suit by Lillie T. Webb against William Xsensee, consolidated with two actions at law by defendant Isensee against plaintiff. The following are the facts: On October _ 27, 1909, William Isensee, as owner thereof, leased to C. H. Thoren and Emma A. Thoren an apartment house, then under construction, for a term of three years, to commence at the completion of the building, with the privilege of an extension of one additional year.

From Lane: James W. Hamilton, Judge. Statement by Mr. Justice Benson.

<p>Seduction—Seduction of Divorced Woman—“Unmarried Female.”</p> <p>1. Section 2076, L. O. L., providing if any person, under promise of marriage shall seduee and have illicit intercourse with any unmarried, female of previous ehaste character, upon conviction shall be punished by imprisonment or a fine, is intended to safeguard the virtue of a ehaste widow just as much as a woman who has never been married, and a divorced woman is within the contemplation of the statute punishing the crime of seduction.</p> <p>Seduction—Instruction as to Corroborating Testimony Necessary.</p> <p>2. During a trial for seduction under a promise of marriage certain letters written by defendant to the prosecutrix were introduced in evidence, but were not identified or proven to have been written by defendant, except by the testimony of the prosecutrix. Held the instruction requested by defendant relating to corroborating testimony should have been given, the refusal of which constituted reversible error.</p> <p>[As to criminal liability for seducing under promise of marriage, see 76 Am. St. Rep. 672.]</p>

<p>Appeal and Error — Scope of Review — Preservation of Objections and Exceptions.</p> <p>1. Where statements were admitted over objection and exception with the understanding that same would subsequently be connected in order to make the same material, which was1 not done, and defendant neglected to move to strike them from the record, on appeal no error could be imputed to the court in admitting the testimony.</p> <p>Appeal and Error — Amendment to Pleading is in the Discretion of the Court.</p> <p>2. The granting or denial of a motion to amend a pleading is a matter within the sound discretion of the trial court, and such ruling thereon will not be disturbed except in ease of manifest abuse of sound judgment.</p> <p>Insurance — Actions—Amendment to Pleading Alleging Waiver.</p> <p>3. In an action to recover an alleged loss under a fire insurance poliey, where the complaint failed to allege that insurer had waived a certain clause of the poliey providing that no action thereon should be maintained unless commenced within 12 months next after the fire, it was not error for the court to allow an amendment so as to include such allegation of waiver.</p> <p>Insurance — Actions—Waiver by Estoppel — Sufficiency of Evidence to Establish Such.</p> <p>4. A fire insurance policy contained the condition that no officer of the company could waive its provisions except on certain conditions, the waiver to be attached to the policy. Plaintiff having sustained a loss and when proof was submitted the secretary of the company replied by letter that plaintiff would hear from them about the time he settled with another company, against which company an action was then pending. -Held, that the letter from the secretary was incompetent to show waiver, yet was admissible to show a waiver by estoppel to allege laches of plaintiff in failing to comply with the terms of the policy as to making proof of loss and time in which to sue, for the reason that plaintiff might have construed the letter to mean that the company would abide by the result of the action then pending.</p> <p>[As to estoppel of insurer to rely on limitations placed on agent’s authority, see note in Ann. Cas. 1914A, 590.]</p> <p>Insurance — Action on Policy — Question of Estoppel for the Jury— Pleading.</p> <p>5. Where the complaint only alleged waiver of the conditions of the policy, the trial court was warranted in holding, as a matter of law, from a mere inspection of the language employed in the letter to plaintiff, that the averment of the complaint as amended in respeot to tlie waiver was adequate, from which, an inference of an estoppel arose, and under the evidence the question of estoppel was properly submitted to the jury.</p> <p>Insurance — Admissibility of Evidence Explaining Failure to Sue — Estoppel.</p> <p>6. An estoppel always implies that a party has been misled to his prejudice, and it may arise without an intent to mislead or deceive. Testimony is admissible tending to prove such deception, so that no error was committed in receiving in evidence the letters written by the secretary of the company, upon which plaintiff relied in not bringing an action within the time required by the terms and conditions of the policy.</p>

From Linn: Percy E. Kelly, Judge. Statement by Mr. Justice Benson. This is a suit for divorce by Mary Jacobs against John Jacobs, in wbicb a decree was rendered in favor of plaintiff, and defendant appeals.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by Thomas Kay against the City of Portland to recover $1,300 alleged to he due him for services as patrolman on the police force of the City of Portland.

<p>Dedication — Parol Dedication not Binding Prior to Date of Donation Certificate.</p> <p>1. Under the provisional Constitution of this state, one could not grant a binding parol dedication of land to a ehurch organization, prior to the date of the certificate under the donation land claim law, passed by Congress on September 27, 1850 (9 Stat. 496, c. 76), for the reason the land claimant did not have title to the land to dedicate.</p> <p>Estoppel — Deeds—After-acquired Property — Quitclaim.</p> <p>2. Section 4 of the donation land claim law (Act of September 27, 1850, 9 Stat. 496, c. 76), expressly provides, “All future contracts, by any person or persons entitled to the benefit of this act, for the sale of the land to which he or they may be entitled under this act, before he or they have received a patent therefor, shall be void,” and where a claimant of land under the provisional Constitution entered into an oral contract to convey such land before the passage of the donation land claim law, whieh contract was evidenced by the execution of a quitclaim deed after the passage of the act and void thereunder, such agreement was enforceable against sueh claimant or his heirs after the receipt by him of a donation certificate under the act, notwithstanding such certificate or patent did not of itself pass title to the proposed grantee.</p> <p>Deeds — Definition of “Etc.” Following Recital of Purpose of Deed.</p> <p>3. The meaning of the abbreviation “etc.” in a deed, foUowing the words “for the purpose of a parsonage, church,” if accorded any meaning at all, signifies “and other like purposes.”</p> <p>Religious Societies — Deed of Conveyance for Church Purposes — “Perpetual Trust.”</p> <p>4. For a deed to create a perpetual trust by setting forth the use and purpose for which the same is given, it is necessary that the deed specify a purpose that is exclusive, and by appropriate language express or import a perpetual use of the land for such purpose; as, for example, the land is conveyed for the purpose of a church and parsonage “only,” or “forever,” or “none other,” or “for no other purpose.”</p> <p>Religious Societies — Conveyance of Land for Church Purpose — Trust.</p> <p>5. Where a conveyance contained a recital that the land conveyed was “for the purpose of a parsonage, chureh, ete.,” without indicating how long that user was to continue, such recital did not create a trust compelling the use of the land conveyed for such purposes only, or for no other purpose, sinee the language employed in the deed does no more than to express the motive of the grantors, or to announce the intention of the grantee, and the words used are not appropriate to create a charitable trust so as to require the premises conveyed to be used for all time for church and parsonage purposes only.</p> <p>Deeds — Construction of Restrictive Clauses in Conveyances of Estates in Lands.</p> <p>6. Words indicating an exclusive purpose and signifying permanency must appear to fetter the land with the burden of an exclusive use, for the law not only favors the vesting of estates, but when the fee is conveyed, all doubts should, as a rule, be resolved in favor of a free use of the property and against restrictions.</p> <p>Religious Societies — Conveyance for Church Purposes — Length of User as Pull Pay.</p> <p>7. Where a deed contained this restriction, that the land conveyed was to be used for “the purpose of a parsonage, church, etc.,” and the consideration for such conveyance partially was that the grantee was to so use the land, a user in conformity with such recital for more than 60 years fully satisfies such obligation, because the rule is firmly established that a long-continued use operates as full payment.</p> <p>[As to right of religious corporation to acquire title by adverse possession, see note in Ann. Cas. 1915C, 773.]</p>

From Multnomah: George N. Davis, Judge. Statement by Mr.' Justice Benson. This is an action by A. M. Mowrey against E. F. Bouton and L. J. Breslin, to recover damages for fraudulent representations, whereby it is alleged that plaintiff was induced to purchase shares of stock in a corporation which was insolvent, and whose stock was worthless. Upon a trial there was a verdict and judgment for defendants, from which plaintiff appeals.

Original mcmdamus proceeding in Supreme Court. Statement by Mr. Justice McBride.

From Wasco: William L. Bradshaw, Judge. Statement by Mr. Justice McBride.

<p>From Multnomah: William N. Gatens, Judge.</p> <p>On Motion to Dismiss.</p> <p>Statement by Mr. Justice Benson.</p> <p>The Title Insurance & Trust Company, a corporation, brought suit to foreclose a mortgage given by the Northwestern Long-Distance Telephone Company, in which the Home Telephone Company of Portland, Oregon, and others intervened. There was a decree granting relief to plaintiff, and it appeals. On motion of the Northwestern Long-Distance Telephone Company to dismiss the appeal in so far as it applies to that portion of the decree which is in conformity with the allegations and prayer of the complaint.</p>

<p>Trusts — Rights of Creditors Obtained by Levy Under Execution-Fraud.</p> <p>1. Section 233, subdivision 4, L. O. L., declares that an execution is levied in the same manner and with like effect as similar property is attached. Section 301, L. O. L., provides that from the date of an attachment until it is discharged, the plaintiff, as against third persons, shall be deemed a bona fide purchaser, in good faith and for value, of the property attached. Seld that an attaching creditor of the husband who caused an execution to be levied on land, the record title of which was in the name of the husband, in order to defeat an outstanding equity of plaintiff in the property by reason of her furnishing the purchase money, must allege and prove the character of his ownership and that his claim is founded upon a valuable consideration.</p> <p>[As to interest in trust estate as reachable by creditor’s bill, see note in Ann. Cas. 1914B, 950.]</p> <p>Judgment — Res Judicata — When Estoppel does not Apply.</p> <p>2. Plaintiff is not precluded, by a judgment obtained by one of the defendants against her husband, to assert rights in property where her rights were acquired before rendition of the judgment, and to show that the creditor had taken an unfair advantage of the debtor.</p> <p>Trusts — Enjoining Sheriff’s Sale Under Execution — Evidence.</p> <p>3. In a suit by a wife as the beneficiary of a resulting trust to enjoin the sheriff from selling under execution sale certain land levied on as the property of her husband, evidence examined and held to show that the claim made by the creditor was not such as would constitute him a hona fide purchaser for value under Section 233, subdivision 4, L. O. L., and Section 301.</p> <p>Trusts — Creation of a Resulting Trust.</p> <p>4. It is the rule that a beneficial estate follows the consideration, and attaches to the party furnishing such consideration, and therefore plaintiff, who provided the funds for her husband to purchase the property, is the real owner of the property so purchased.</p> <p>Trusts — Property not Subject to Debts of Trustee.</p> <p>5. As a general rule, trust property is not liable for the debts of a trustee, and cannot be reached by attachment or execution, although any beneficial interest the trustee may have in the property may be so reached, and a resulting trust is within the operation of the rule announced. The lien of a judgment is only' a charge upon the actual interest which the judgment debtor has in the property, and upon no other.</p> <p>Trusts — Evidence Insufficient to Establish a Resulting Trust.</p> <p>6. The evidence examined and held insufficient to show that plaintiff furnished all the money to purchase all the property involved, so as to create a resulting trust for her in property taken by the husband in his own name.</p> <p>Trusts — Evidence Necessary to Establish Resulting Trust.</p> <p>7. In order to establish a resulting trust by parol, the evidence must be full, clear and convincing, and unattended by doubt or uncertainty, and evidence of intention to transfer the property, or promise to do so, or that he was indebted to the eestm que trust, is insufficient to show a resulting trust.</p> <p>Pleading — Complaint—Admissions so as to Preclude Attack.</p> <p>8. Where in a suit to enjoin an execution sale the complaint refers to the judgment recovered by defendant against the husband of plaintiff as a “pretended” one, and in the reply plaintiff denies the allegations of the answer as to the facts on whieh the judgment was obtained, defendant cannot claim that the judgment was admitted to have been “duly rendered.” so as to preclude an attack by plaintiff thereon.</p>

From Baker: Gustav Anderson, Judge. Statement by Mr. Justice McBride. This is a proceeding by Mary H. Darby against Albert Hindman, and others, contesting the validity of the will of one Thomas Huffman, who died in Baker County, Oregon, about September 11,1913.

<p>Easements—Enjoining Interference When Remedy at Law is Inadequate.</p> <p>1. Upon proper application an injunction will issue to restrain interference with an owner’s easement, when it is shown the injury ■complained of is irreparable, or the intermeddling is continuous, or that the remedy at law to recover damages for such injury is inadequate.</p> <p>Equity—When Objection to Jurisdiction may be Waived.</p> <p>2. A court of equity having jurisdiction to protect an easement at the suit of the owner, any defeet in the initial pleading is waived when defendant fails to demur for lack of jurisdiction of the subject matter, and then by praying for affirmative relief in its answer.</p> <p>Principal and Agent—Authority of Agent Held Out by Principal—• Estoppel.</p> <p>3. The authority of an agent to bind his principal in contracts with a third party is measured, not only by .the agent’s express delegation of power, but also by that which such agent is held out by the principal as possessing, provided such third party had reason to believe, and did believe, the agent was acting within the scope of his authority," and such party would sustain a loss if the contract was not regarded as that of the principal.</p> <p>Dedication—Principal and Agent—General Agent—Evidence Suffi- ■ cient to Establish.</p> <p>4. Where, in a suit to determine an adverse interest in real property, evidence examined and held sufficient to establish that the owner knowingly permitted intending purchasers to believe that the printed plat exhibited to them by the agent of such owner had been duly recorded, and also that he held out agent to be his general agent in negotiating sales of such real property.</p> <p>Dedication—Establishment of Dedication by Parol.</p> <p>5. Where it is sought to establish a parol dedication, evidence must be adduced that will substantiate a clear intention to devote some particularly described land to a public use.</p> <p>[As to proof of dedication of highway, see note in 57 Am. St. Rep. 756.]</p> <p>Dedication—Intention of Owner to Make Parol Dedication to the Public.</p> <p>6. In a suit to determine an adverse interest in real property, evidence is held sufficient to establish an intention on the part of the owner of lots, who is represented by a general agent in selling, to make a parol dedication to the public, as designated upon a printed plat of the property shown to purchasers, of certain streets as highways to be 60 feet in width.</p> <p>Dedication — Representations by Owner to Intended Purchasers — Estoppel in Pais.</p> <p>7. Where the owner of real property caused the same to be surveyed and platted into lots, blocks and streets, and prepared a map thereof, showing the lots to be of a certain size and the streets of a certain width, which map he exhibited to intending purchasers, and who bought prior to the time that he changed his mind as to the width of the streets, though he intended that the map so exhibited should be superseded by a plat differing therefrom as to the width of the streets, he thereby irrevocably dedicates to the public the streets as shown and designated on the map so exhibited, for the reason .such conduct and the circumstances create an estoppel in pais.</p> <p>Evidence — Best Evidence — Duplicate Introduced in Lieu of Original.</p> <p>8. Section 712, L. O. L., declares there shall be no evidence of the contents of a writing other than the writing itself, except in the following eases: 1. When the original is in the possession of the party against whom the evidence is offered, and he withholds it under the circumstances mentioned in Section 782; and 2. When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default, in a suit brought to determine an adverse interest -in real property, where the width of certain streets was involved, and the question for decision being whether the owner of the property had represented, by exhibiting to intending purchasers a printed map, that the streets were of a certain width, two duplicates of the printed map exhibited to the purchaser of the property, being identified as such, was properly admitted in evidence for plaintiff, although no testimony was offered to explain the failure or inability to produce the original from which the duplicate was made, for the term “duplicate” signifies more than a mere copy, being identical not only verbally but also in legal import.</p> <p>Dedication — Evidence as to Width, of Streets and Highways.</p> <p>9. In a suit brought to determine an adverse interest in real property, where plaintiff was endeavoring to establish that certain streets on which his lots abutted were 60 feet in width, and prior to the delivery of his deed the original purchaser from the owner, who executed the dedication deed, had examined the block, stepped the width of the highways bordering the same, found them to be 60 feet, and saw them marked with white stakes similar to the one received in evidence, his attention being at the time attracted to these posts, the admission of testimony relating to the stakes, as marking the lines of one of the streets,’ was not erroneous.</p> <p>Dedication — Extinguishment of Public Right by Adverse Possession.</p> <p>10. Where the original owner of lands, before selling, caused the same to be platted and dedicated to the public the streets as highways, the statute of limitations never began to run against the right of the successor in title of an original purchaser from such original owner to insist upon the maintenance of such highways, and the sale of a lot bordering upon a street that is indicated on the plat amounts to an irrevocable offer by the dedicator, that the proposed highways, unless legally vacated, shall ever after remain open to the public.</p> <p>Dedication — When Acceptance of a Donation -will be Implied — Estoppel.</p> <p>11. A formal acceptance of a donation to the public is unnecessary, since an approval of the gift by the proper municipal officers will be implied.</p> <p>Dedication — Grantees of Dedicator may Extinguish Right of Public to a Street.</p> <p>12. Tbe rights of the public in and to a dedicated street may be extinguished by tbe grantees of tbe dedicator, by an unlawful encroachment thereon for the period of the statute of limitations, which purpresture raises an estoppel against the municipality on the ground of its officers failing to assert a right to such easement.</p> <p>Dedication — Estoppel—Implied Notice to Grantee.</p> <p>13? Where the grantee in a deed of platted lands- from the owner, who, by exhibiting a plat to intending purchasers, had marked thereon dedicated highways, could have ascertained the fact by white stakes driven in the ground, to mark the boundary line of such highways, so as to induce further investigation as to the source, nature and extent of the easements, such grantee was estopped to deny that the owner of the land had made a parol dedication binding upon it, although it secured title for valuable consideration by mesne conveyances.</p>

From Union: Gustav Anderson, Judge. This is a proceeding in the matter of the guardianship of David Troy, an incompetent person. Upon the death of the ward, B. O. Mays, as guardian, filed his final account, to which objections were made by Delilah Beem, Tom Troy and J. E. Troy. From a decree ordering the guardian to refund $126.64, the objectors appeal.

■From Lane: George F. Skipworth, Judge. Statement by Mr. Justice Burnett. Tbis is an action by Max Lueddemann, Ernest L. Lueddemann and J. B. Ruley, as copartners under tbe firm name of Lueddemann, Ruley & Co., against William Rudolf to recover $1,000 as broker’s commissions claimed to have been earned by the plaintiffs in effecting a sale of the land of the defendant.

<p>Food—Inspection Within Police Power of State.</p> <p>1. It is within the police power of the state to enact laws for the inspection of food products.</p> <p>Food—■ Municipality may Exercise State Police Power Requiring Inspection.</p> <p>2. The city charter of Portland confers power to require inspection of food offered for sale for human consumption within the corporate limits, under which authority the city may exercise state police power requiring inspection of foodstuffs.</p> <p>Constitutional Law—Inspection of Foodstuffs not Invalid as Class Legislation.</p> <p>3. Under an ordinance passed by the City of Portland requiring, as a condition to the sale of meats for human food without the municipality by a person who> slaughters more than five animals a week, should be subject to inspection, and further providing that persons slaughtering less than that number each week could only dispose of their meats by having them inspected at a central station, is not invalid as an unreasonable classification.</p> <p>[Constitutionality of regulations and restrictions to promote and secure public health, see note in 25 Am. St. Rep. 889.]</p> <p>Food—Enforcement of Extraterritorial Powers by a City.</p> <p>4. A city has no power to enforce an ordinance requiring the inspection of slaughter-houses and meats when the same are located beyond the city limits, but it may require and enforce .submission to inspection as a condition precedent to the sale of meats within the city.</p> <p>Constitutional Law—Justification of Police Power Regulation.</p> <p>5. Among the powers reserved to the people by the federal Constitution is that which has come to be known as the police power of the states, and is a weapon of self-defense possessed by all governments, by which the greatest good will be secured to the greatest number.</p> <p>Constitutional Law—Validity of Statute to Protect Public Health.</p> <p>6. Where the object of a statute is to prevent the spread of diseases or is intended to protect public health, which operates on all alike, it is not invalid under either the state or federal Constitution.</p> <p>Constitutional Law — Construction of Statute or Ordinance.</p> <p>7. The constitutionality of a statute or ordinance is usually tested, not by what is actually done under it, but by what it authorizes and permits to be done, and to justify classifications, where several classes are affected differently, there must be some difference between the classes which bear a just and proper relation to the purposes of the law.</p> <p>Constitutional Law — Construction—Special Privileges.</p> <p>8. An act which denies the equal protection of the laws, or grants special privileges or'immunities, which upon the same terms do not equally belong to all alike, is prohibited by the Constitutions of the United States and that of the state.</p> <p>Constitutional Law — Ordinance Invalid in Theory of Class Legislation.</p> <p>9. An ordinance of the City of Portland providing for the inspection of meats and of slaughter-houses located outside of the city limits, as a condition precedent to the sale of such meats within the city, but exempting from the operation of such ordinance slaughterhouses and packing plants subject to federal inspection statutes, is unconstitutional, void and discriminatory, in so far as the ordinance prescribes a higher inspection regulation than those required by the federal government, for in such case it confers special immunities on certain packers subject to federal laws.</p>

From Clackamas: George E. Bagley, Judge. Statement by Mr. Justice Benson. A. B. Cummins and others commenced a suit against Linn E. Jones, as mayor, and E. L. Shaw, as chief of police of Oregon City, Oregon.

<p>From Multnomah.: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>John Dickerson commenced an action against the Eastern & Western Lumber Company, a corporation, to recover damages for an injury.</p> <p>The plaintiff alleges and the defendant admits that at all times mentioned in the pleadings the latter owned and operated a sawmill in the City of Portland, together with all the equipment, fixtures and machinery used in connection therewith, and that the plaintiff was employed by it to oil the different parts of the mill and its machinery. The gravamen of the charge is contained in the following allegations of the complaint:</p> <p>“That on or about March 22, 1913, while the plaintiff was engaged in said employment, it became and was necessary for the plaintiff to ascend to and cross over and upon a staging or false work which had' been erected and maintained by the said defendant about nine feet above the first floor and near the second floor of said mill, for the purpose, among other things, of enabling- the plaintiff to perform his duties; that in crossing over said staging for the purposes aforesaid, and while the plaintiff was exercising due care and caution for his own safety, one or more of the boards in said staging broke, causing the said plaintiff to be precipitated to the floor of said mill, inflicting upon the plaintiff serious and permanent injuries as more specifically hereinafter stated; that the injuries to said plaintiff were caused wholly and solely by the negligence of the defendant, its servants and employees, in this, that said staging, and -particularly the boards thereof which broke as aforesaid, were old, worn and defective, and were insufficient to bear the weight of the plaintiff, and were insufficient and unsuitable for the purposes intended, and the defendant was therefore negligent in erecting and maintaining said staging as aforesaid; that the defendant was further negligent in failing, neglecting and refusing to erect and maintain a good and sufficient staging upon which plaintiff could perform his said duties, and to make and maintain the place in 'which and about which the plaintiff was to and did perform his duties, reasonably safe and suitable; that the defendant was further negligent in failing to properly test and inspect said staging in order to ascertain any defects that might appear therein; that the defendant was further negligent in failing and neglecting to exercise every care and precaution practicable in safeguarding the life and limb of the plaintiff and other employees of said mill.”</p> <p>The remainder of that pleading refers to the nature of the plaintiff’s injuries and the amount of damage he claims.</p> <p>Except as stated, all the plaintiff’s averments are denied by the answer. The defendant asserts its ownership and operation of a large sawmill, that it employed the plaintiff as an oiler in and about the mill, and that it was his duty to oil bearings on-the overhead shafting about 12 or 15 feet above the floor while the machinery was in operation, and that these bearings were reached only by means of a step-ladder which the defendant had furnished. It states that it never maintained at any time any staging or false work to enable the plaintiff to perform his duties, and that the only thing it did provide and maintain and instruct the plaintiff to use was a good, substantial, safe and convenient step-ladder which he could have conveniently and with safety to himself moved from place to place while oiling the machinery. It avers that without its consent or knowledge the plaintiff, when oiling the overhead bearings, habitually passed from point to point upon a board which rested upon girders or timbers where it had been placed either by the plaintiff or someone of his fellow-servants, and that on the occasion in question it broke under him, precipitating him to the floor, whereby he was injured, as stated in his complaint, all without any want of care on the part of defendant. In brief, the answer concludes with a plea of assumption of risk and contributory negligence.</p> <p>The affirmative matter stated by the defendant was traversed by the reply. No exception was taken to any testimony offered at the trial. The question presented for review relates solely to the construction of the complaint and the instructions of the court to the jury. •The trial resulted in a verdict and judgment in favor, of the plaintiff, from which the defendant appeals.</p>

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Chief Justice Moore. On December 2, 1913, the T. B. Potter Realty Company, a corporation, commenced an action against George S. Breitling to recover the then matured installments of the purchase price of real property.

<p>From Multnomah: John P. Kavanaugh, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Guy W. Talbot against George W. Joseph and Harold W. Maffet, to abate and compel the removal of a V-flume which the defendants maintain upon the land of the plaintiff.</p>

<p>Appeal and Error — Time to Appeal — Extension—Notice.</p> <p>1. Section 554, subdivision 2, L. O. L., providing that, if tbe transcript or abstract is not filed with tbe clerk of tbe appellate court within the time provided, the appeal shall be deemed abandoned, but that the trial court or judge thereof may, upon such terms as may be just, enlarge the time for filing the same, does not require notice by appellant to the adverse party before an order extending the time may be made.</p> <p>Appeal and Error — Time of Appeal — Extension—Notice.</p> <p>2. Supreme Court Rule 24 (56 Or. 624, 117 Pac. xii), providing that an application to the Supreme Court for an order enlarging the time in which to file a transcript shall be accompanied by proof of notice to respondent of such application at least five days before the same is made, does not compel such notice to be given when extension of the time in which to file a transcript is ordered by the Circuit Court.</p> <p>Appeal and Error — Record on Appeal — Undertaking—Presumptions.</p> <p>3. On appeal from the Circuit Court of a case brought up to it from the Probate Court, that the record does not contain the undertaking on the appeal from the Probate Court does not invalidate the appeal, where the deeree implies that such- an undertaking was filed and does not affirmatively declare that it was not filed.</p> <p>(Note: Both appeals were dismissed upon stipulation, February 23, 1916.—Reporter.)</p>

Original proceedings in Supreme Court. Statement by’Mb. Justice Benson. Albin L. Clark commenced a mandamus proceeding in this court to require John P. Kavanaugh, Judge of the Circuit Court of the State of Oregon, for the county of Multnomah, Department No. 1, to sign an order dismissing an indictment. A demurrer to the answer overruled and writ dismissed.

From Multnomah: Calvin U. Gantenbein, Judge. This is a suit by Peter G. Carlson and J. A. Kallstrom against M. H. 0 ’Connor for the specific performance of a contract to sell land. From a decree in favor of defendant, plaintiffs appeal.

<p>Indictment and Information — Sufficiency of Accusation — Language of Statute.</p> <p>1. In indictments for misdemeanors, created by statute, it is sufficient to charge the offense in the words of the statute, subject to the qualification that the crime must be set forth with such certainty as will apprise the accused of the offense imputed to him.</p> <p>Indictment and Information — Common-law Procedure — Requirements of an Indictment.</p> <p>2. While it has been the purpose of the legislature to simplify the old common-law system of criminal jurisprudence, by divesting it of many of its technical requirements which do not affect the rights of the accused, it was not intended to abolish or dispense with any of the essential requirements of an indictment.</p> <p>Indictment and Information — Description of Offense.</p> <p>3. In an indictment there should be such certainty of description as will identify the offense, so that the defendant may not be in-dieted for one thing and tried for another, that the defendant may know what crime he is called upon to answer, that the jury may be able to deliver an intelligible verdict, the court to render the proper judgment, and that the defendant may be able to plead his conviction or acquittal in bar of another prosecution for the same offense.</p> <p>Prostitution — Indictments under Statute — Sufficiency of Accusation.</p> <p>4. Under Laws of 1913, page 246, Section 1, making it "a felony for a man to solicit or attempt to solicit any male person to have sexual intercourse with a prostitute, an indictment which charged the defendant with having unlawfully attempted to solicit a male person to have sexual intercourse with a prostitute was not sufficient, as it did not give the sex, name or identity of the alleged prostitute.</p> <p>[As to what constitutes an attempt to commit a crime, see note in 20 Am. St. Rep. 741.]</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an application by petition for mandamus by O. B. Canuto against Andy Weinberger, constable.

Prom Multnomah: Henry E. McGinn, Judge. Victor Leon commenced a suit for divorce against Dela Leon, in which the Circuit Court granted a decree of divorce to the wife, and from an order awarding the custody of a daughter to the husband, defendant appeals. Order modified to give the mother the custody of the child.

<p>From Tillamook: Webster Holmes, Judge.</p> <p>Statement by Mr. Justice Benson.</p> <p>This is a suit by W. S. Cone, George Williams and Henry Jordan against W. H. Gilmore, Robert Watt, J. T. Nevins, J. M. Bodle, W. L. Provost, David Rhodes, E. G. Lantz, Bay City, a municipal corporation, and W. Proctor, Jr. The facts are as follows:</p> <p>In the year 1912, the defendant Proctor, as relator, instituted a suit against Bay City and its mayor and council, wherein the validity of the incorporation of the defendant city was attacked. This suit was prosecuted to a final decree in this court, in which the defendants therein prevailed. Growing out of this litigation, this suit was commenced by the plaintiffs, as residents and taxpayers of the defendant city, and their cause of suit is stated thus:</p> <p>“That about the time said suit was instituted by said Proctor the then mayor and councilmen of said Bay City, Oregon, entered into an agreement with said Proctor and the said Everett A. Johnson, whereby it was agreed that in the event that the said suit should be decided against the said Proctor, and the said Bay City, Oregon, should be decided to be a duly incorporated municipal corporation of the State of Oregon, then the defendant Bay City, Oregon, for the benefit of the said Proctor, as plaintiff therein, would pay to the said Everett A. Johnson an attorney fee of $250, and would also pay the costs and disbursements incurred by said Proctor in the prosecution of said suit. That the said suit was prosecuted to a final determination thereof in the Supreme Court of the State of Oregon, which court in a decree rendered thereon on or about -day of April, 1913, declared the said Bay City, Oregon, to be a duly incorporated municipal corporation of the State of Oregon, and further decreed judgment in favor of said Bay City, Oregon, and against the said Proctor, for the costs and disbursements of said suit. That immediately after the month of April, 1913, the said defendant W. H. Gilmore, mayor, and the other defendants named herein as councilmen of Bay City, Oregon, caused warrants to be issued upon the general fund of Bay City, Oregon, for the purpose of carrying out the said attempted and illegal agreement made by the said council of Bay City, Oregon, with said Proctor and Johnson; the said mayor and councilmen having full knowledge of the facts and terms of said illegal agreement and knowing the facts and circumstances surrounding and included in said agreement to be as hereinabove stated. That from and out of the funds arising from the said warrants so authorized and issued by the defendants aforesaid, the sum of $250 was paid to the said Everett A. Johnson, as attorney for said Proctor, Jr., and the further sum of $200 was paid for the purpose of satisfying the costs and disbursements incurred by said Proctor and his attorney in the prosecution of said suit. That the sole consideration for the payment of the said total sum of $450 was to carry out the terms of said illegal agreement entered into as hereinbefore shown. That long prior to the date of filing of this action the plaintiffs requested in writing the said W. H. Gilmore, acting as mayor, and the other defendants acting as councilmen of Bay City, Oregon, to bring this suit or some proper action against the said defendants in order to recover the sum of $450 illegally paid out as aforesaid; but the said mayor and councilmen have failed and refused to act or take any action, and do fail and refuse still to act in the premises; and, upon the failure and refusal of said defendants to take any action therein, the plaintiffs herein now bring this suit as taxpayers of Bay City, Oregon, on behalf of said Bay City, Oregon, and on behalf of themselves and others similarly situated.</p> <p>“Wherefore, the plaintiff prays for a decree herein compelling the restoration of the funds misappropriated, as aforesaid, and in case such restoration be impossible for a judgment in favor of said Bay City, Oregon, and against the defendants, and each of them, except the defendant Bay City, Oregon, for the sum of $450, together with interest thereon at the rate of 6 per cent per annum from the 1st day of May, 1913, and that plaintiffs recover their costs and disbursements herein, and for such other and further relief as to the court may seem right and equitable.”</p> <p>To this complaint an answer was filed undertaking to set up a plea in abatement. -Plaintiff then moved for a judgment on the pleadings, which was granted, and a judgment entered as prayed for in the complaint, and thereafter defendants applied for leave to answer to the merits, which was refused. Defendants appeal.</p>

<p>From Washington: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Benson.</p> <p>This is a suit by B. M. Lombard against M. B. Kies, receiver of the Commercial Bank of Vancouver, Washington. The facts are as follows:</p> <p>On June 28,1912, M. B. Kies, as receiver of the Commercial Bank of Vancouver, gave to F. C. Malpas an option to purchase a tract of 476 acres of farm land, the option (omitting the description of the land) reading as follows:</p> <p>“Know all men by these presents that M. B. Kies, as receiver of the Commercial Bank of Vancouver, hereinafter called party of the first part, for and in consideration of the sum of one thousand dollars ($1,000) to him in hand paid, does hereby bargain, give, and grant to F. C. Malpas, hereinafter called party of the second part, for the period hereinafter provided, the sole, exclusive, and irrevocable right and privilege of purchasing that certain described tract or parcel of land, situate in the county of Washington, State of Oregon, to wit, * * upon the terms and at the price hereinafter provided. It is understood between the parties hereto that the party of the first part has instituted a proceeding in foreclosure against Paul H. Refiners and Grace Refiners, his wife, and B. M. Lombard and Caroline S. Lombard, his wife, for the foreclosure of a certain contract of purchase covering the above-described premises, made and entered into between the party of the first part and said Paul H. Reimers and Grace Refiners, his wife, on March 16, 1911, which foreclosure suit is pending in the Circuit Court of Oregon for Washington County. The party of the first part agrees to carry on and prosecute said proceeding to a successful final determination and to procure title to all of said described premises in himself free from the claims of any and all of said defendants. In case the party of the first part shall procure a deed to said premises he shall immediately notify party of the second part thereof in writing, and the party of the second part shall, within 15 days after such notification, make an additional payment upon said premises in the sum of $4,000, and shall pay the balance of the purchase price of said premises as follows: One third thereof one year from the date of acquiring deed; one third thereof one year later; one third thereof one year thereafter: Provided, however, that the payment falling due in the year in which it becomes necessary to pay Balfonr, Guthrie & Co.’s mortgage shall not be then made, but shall be made one year after the date of the last payment as above provided: Provided said mortgage is paid by the party of the second part when due. In case deed is not procured, but the party of the first part procures title in said foreclosure proceedings by strict foreclosure, he shall give notice in writing to the party of the second part of the fact of procuring title, and the said payment of $4,000 shall be made within fifteen days thereafter, and subsequent payments shall be made thereafter as above provided. The total purchase price shall be the amount which shall be decreed in said foreclosure proceeding to be due the plaintiff against the defendants, Paul H. Refiners and Grace Reimers, including costs, disbursements, and interest and attorney’s fees, and the further-amount of $16,320.00, with interest thereon at the rate of 6 per cent per annum from and after May 1,1912, and the assumption by the party of the second part of the certain mortgage for $7,000 in favor of Balfour, Guthrie & Co., now a first lien upon said premises. It is further understood that the payment of $1,000 herein acknowledged shall apply as part of said purchase price in case all of the purchase price shall be paid by the party of the second part. In the event that the party of the first part shall be unable to carry out this agreement or shall for any reason fail to carry out the same, the party of the second part shall, at his option, be entitled on demand to the return of said sum of $1,000 to be paid to him by the party of the first part, but the party of the first part shall not be bound to complete the terms of this contract in case said property is redeemed within the time limited by law. It is understood and agreed that the option herein granted shall exist in favor of the party of the second part until the expiration of 15 days after written notice by party of the first part to party of the second part of the deed or obtaining of title by decree of strict foreclosure, as above provided. It is further understood and agreed that the agreements herein contained shall bind the heirs, assigns, personal representatives, and successors of both of the parties hereto.”</p> <p>On December 4, 1912, M. A. Zollinger, having taken an assignment of the option from Malpas, paid $4,000 thereon, and took from Kies a receipt and supplemental contract reading thus:</p> <p>“Portland, Oregon, December 4, 1912.</p> <p>“The undersigned, M. B. Kies, receiver of the Commercial Bank of Vancouver, Washington, hereby acknowledges receipt from M. A. Zollinger of the sum of four thousand dollars ($4,000) paid to said receiver in accordance with the terms of the certain option and written agreement dated June 28, 1912, between the undersigned and F. C. Malpas, covering a certain tract of land in the counties of Washington and Yamhill, in the State of Oregon, known as the ‘Aldrich place,’ which option and agreement has been assigned to the said M. A. Zollinger by the said F. C. Malpas, said payment being made in the manner following: $3,666.35 thereof in cash, and $333.65, thereof by receipt of B. M. Lombard for costs, expenses, disbursements, and attorney fees advanced by the said B. M. Lombard on behalf of said M. B. Kies, receiver, in the foreclosure suit of said M. B. Kies, Receiver, v. Paul H. Reimers et al.; and whereas, by the terms of said option it is agreed that the said receiver shall prosecute said suit to a successful final determination and to procure title to all of said premises in himself free from the claims of any and all of the defendants therein, and the right of the defendants to appeal from the decree rendered in said suit has not expired: It is further agreed and understood between said receiver and said M. A. Zollinger that in case an appeal shall be perfected in said suit, the said receiver shall and will, upon the request of the- said M. A. Zollinger or his assigns, return to the said M. A. Zollinger the amount paid upon.-said premises, to wit, the sum of five thousand ($5,000.00) dollars, excepting said sum of $333.65. In consideration of the premises and of the payment at this time of the amounts above specified, and in consideration of payment of one dollar to said receiver by said M. A. Zollinger, receipt of which sum is hereby acknowledged, said receiver further agrees that said M. A. Zollinger, his heirs and assigns, shall have the right and privilege of paying upon the said contract dated June 28, 1912, any sum or sums he may desire at any time or times before the maturity thereof, and upon such payment' being made he shall be entitled to a good and sufficient deed of this receiver conveying such portion of the premises as he shall in writing specify upon payment, as follows: For uncleared land upon said premises $50.00 per acre; for cleared land $80.00 per acre, except for the governmental subdivision of forty (40) acres upon which the dwelling-house stands, which shall be conveyed, as aforesaid, upon the payment of $120.00 per acre. And whereas, the said option provides that the total price of said premises shall be the amount decreed in certain foreclosure proceedings, plus an additional amount therein specified, and the amount decreed to be due plaintiff, M. B. Kies, as receiver in said foreclosure proceedings, by oversight and omission failed to include the sum of $825.00, with interest thereon at the rate of 6 per cent per annum from and after May 15, 1912, it is understood that said last-named sum shall, for the purpose of said option, be added to the amount of the decree actually rendered in favor of the plaintiff in said foreclosure proceedings, and the consideration or purchase price of said premises shall be increased in said sum.”</p> <p>Subsequently Zollinger assigned the contracts to plaintiff, who, being desirous of making full payment for the 40-acre tract upon which the house stood, in accordance with the terms of the supplemental contract above set out, made a proposition to defendant, though not in writing, to pay therefor as provided in the event that he could have the tract released from the lien of the Balfour, Guthrie & Co. mortgage. The parties were not able to secure a release from the mortgagees without the payment of the entire mortgage debt, and, as the defendant was unable or unwilling to do this, the deed to the 40-acre tract was never executed.</p> <p>On April 5, 1912, after the necessary preliminaries had been observed the County Court of Washington County made and entered an order establishing a county road which, according to the survey, would run practically through the dooryard and within 50 feet of the dwelling-house on the 40-acre tract above mentioned. Neither plaintiff nor defendant had any actual knowledge of the establishment of such highway until a few days before the commencement of this suit, at which time they together visited the premises, and found the county’s employees busily engaged in grading the road through the property. Shortly thereafter plaintiff began this suit to rescind the contract and recover the payments made thereon, alleging two breaches thereof. (1) The refusal of defendant to convey the 40-acre tract free from the encumbrance of the Balfour, Guthrie & Co. mortgage; and (2) 'the establishing of the public road so near the dwelling-house as to render the premises unfit for the purpose for which he was purchasing it, that is, for a suburban home for his family, and that therefore the defendant will be permanently prevented from giving him a good conveyance free from encumbrance.</p> <p>Defendant, answering, denies the alleged breaches of the contract, and by affirmative answer seeks a strict foreclosure of the same. From a decree in favor of plaintiff, defendant appeals.</p> <p>Submitted on briefs without argument under the proviso of Bule 18 of the Supreme Court: 56 Or. 622 (117 Pac. xi).</p>

<p>Attachment—Affidavit for Publication—Sufficiency.</p> <p>1. An affidavit for publication of summons in a suit in which an attachment is levied on land must allege that the defendant has property within the state; and, it failing to contain such an averment, the court does not acquire jurisdiction, and any judgment based thereon is void.</p> <p>[As to defects in attachment proceedings, see note in 76 Am. St. Rep. 800.]</p>

<p>Constitutional Law—Privileges and Immunities—Usury Law—Power of State.</p> <p>1. Laws of 1913, Chapter 278, regulating the business of loaning money or credit by persons other than national banks, licensed bankers, etc., requiring a license from the state banking board to engage in such business, and providing that no license shall be granted to any person not a ~bona fide resident of the State of Oregon, or to a corporation, etc., until such corporation, etc., appoints a resident agent to accept service, does not violate Article IV, Section 2, of the Constitution of the United States, providing that the citizens of eaeh state shall be entitled to all privileges and immunities of citizens in the several states, or Section 1 of the Fourteenth Amendment of the United States Constitution, declaring that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, as the state in the exercise of its police power and for the protection of small borrowers may regulate the taking of excessive interest and confine the privilege to residents and those subject to its process.</p> <p>Constitutional Law—Licenses—Class Legislation—Loan Business.</p> <p>2. Laws of 1913, Chapter 278, making it unlawful to engage in the business of making loans at more than 10 per cent without first securing a license from the state banking board, and providing by Section 2 that nothing therein should apply to the legitimate business of state and national banks, licensed bankers, trust companies, savings banks, building and loan associations, or real estate brokers, was not unconstitutional as discriminatory class legislation, as the classification need not be scientific or logically appropriate, and, if uniform within the class, and not arbitrary, is within the legislative discretion.</p> <p>[As to class legislation, see note in 43 Am. St. Rep. 236.]</p> <p>Criminal Law—Evidence Obtained by Search.</p> <p>3. In a criminal prosecution for violation of the statute making it unlawful to engage in the business of making loans at more than 10 per cent without having first obtained a license from the state banking board, certain papers and correspondence seized by the officers in defendant’s rooms were admissible.</p> <p>Criminal Law—Repeal and Re-enactment of Statute—Effect.</p> <p>4. Defendant was indicted, tried, convicted and sentenced for a violation of Laws of 1913, Chapter 278, making it an offense to engage in the business of making loans at more than 10 per cent without having first obtained a license from the state banking board, and thereafter, and while his appeal was pending, the legislature passed Laws of 1915, Chapter 219, expressly repealing chapter 278, and reenacting substantially the same provisions, but increasing the amount of the annual license fee from $50 to $100. Held that the repeal and re-enactment did not necessitate the dismissal of the indictment and the discharge of the defendant, as every element of the law whieh he was charged with violating remained the law, and had never at any time since its first enactment ceased to be the law.</p> <p>Statutes — Title—Constitutional Provisions.</p> <p>5. Laws of 1913, Chapter 278, entitled an act “to regulate the business of loaning money or credit by persons, firms and corporations other than national banks, licensed bankers, trust companies,” etc., naturally and logically connected the state banking board and the state examiner with the administration of such law, and its provision for the issuance of a license by the state banking board, etc., was therefore germane to its title.</p> <p>Searches and Seizures — Evidence — Impounding Papers — Power of Court.</p> <p>6. A Circuit Court has the right to make an order impounding defendant’s papers seized at his place of business by officers from the district attorney’s office at the time of defendant’s arrest.</p> <p>Searches and Seizures — -Illegal Seizure of Papers by Officers.</p> <p>7. A defendant in a criminal prosecution who suffers injury by the illegal seizure of his papers at his place of business at the time of his arrest has a civil remedy.</p> <p>Criminal Law — Trial—Inquiry into the Mode of Obtaining Evidence.</p> <p>8. Courts will not pause in the orderly trial of a criminal cause to inquire into the manner in which evidence, such as defendant’s private papers seized at his plaee of business at the time of his arrest, was secured.</p> <p>Searches and Seizures — Return of Private Papers to Defendant.</p> <p>9. The private papers of defendant in a criminal cause, seized by officers and used as evidence, will be returned to him upon proper application to the clerk of the Supreme Court.</p>

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. This is an action by A. L. Dundas against the Grand View Land Company, an Oregon corporation. It is admitted that a Wisconsin corporation doing business in Oregon employed the plaintiff to act as its manager at $100 per month, and that afterward the defendant took over all its property and agreed to pay all the debts of the Wisconsin concern.

<p>Prom Multnomah: William N. Gatens, Judge.</p> <p>Statement by Mr. Justice Harris.</p> <p>H. B. Parson and A. M. H. Parson are husband and wife. It is admitted by the pleadings that John O. Logan and William Brown “have been and now are partners doing business under the firm name and style of Logan & Brown.” A. M. H. Parson owned an automobile which the plaintiffs agreed to purchase for $1,200. On September 9,1913, the plaintiffs paid $150 in cash, Brown gave his note for $50, payable to A. M. H. Parson, and Logan & Brown signed a contract note for $1,000, the balance of the purchase price. The contract note obligated the makers to pay to A. M. H. Parson the sum of $1,000, payable in monthly installments of $55, the first installment to be paid on October 9, 1913; A. M. H. Parson is bound to ‘ ‘ sell, transfer and deliver” the automobile to the plaintiffs upon the payment of the amount stated in the note; after reciting that the “property has been intrusted to the care of” the plaintiffs, it is stipulated ‘ ‘ that said property so intrusted is the property of” A. M. H. Parson until the note is fully paid, Logan & Brown agreeing to keep the ear in g’ood repair and to keep the property insured for not less than $800; and the instrument further provides that in case of default in any installment, A. M. H. Parson shall have the option to “receive back such personal property” or to “insist upon the payment of the full sum * * and to decline to receive back said personal property, in which event the” signers are to be liable for the full sum agreed to be paid. On September 16, 1913, A. M. H. Parson indorsed the $i,000 note to the defendant Charles R. Frazier to be applied on the price of an automobile purchased from Frazier. About October 10th, Logan paid to Frazier an installment of $55 on the note. Claiming that the transaction had been effected by means of fraudulent representations made by H. B. Parson, who conducted the negotiations for A. M. H. Parson, the plaintiffs commenced this suit on November 15, 1913, for the purpose of canceling the $1,000 note and recovering the money paid. The complaint alleges that:</p> <p>H. B. Parson “represented to said plaintiffs that the engines, motors and cylinders were in perfect repair; that they were the same engines, motors, and cylinders belonging to and being a part of said car at the time said car was sent from the factory. That said car had not been used very much, and had not been run more than 2,000 miles and had not been mistreated or misused. That he was a finished mechanic and an expert automobile man, and therefore acquainted with the. mechanism of all parts of the car, and that he had examined, cared for, and was thoroughly acquainted with the machinery and tires and axles and wheels and all parts of said car, and that he had always oiled, examined, and cared for this car himself, and could therefore, and did guarantee and represent to said plaintiffs that said automobile had been and now was in perfect order and good workable condition in every part and as a whole.”</p> <p>The plaintiffs also allege that they “do not believe that said defendant Charles B. Frazier ever paid any valuable consideration for said contract,” and the complaint proceeds to allege that the transfer of the $1,000 note to Frazier was only a pretense and was made for the purpose of having Frazier enforce the collection of the amount of the note in the guise of an innocent purchaser. Frazier answered by denying the charge of fraud against him, and he affirmatively alleged that he was an innocent purchaser for value, and that before receiving the note he took the precaution of first seeing Logan, who said that the note was all right ‘ ‘ and would be paid in accordance with the terms thereof. ’ ’ After alleging ownership of the instrument and failure to make the stipulated payments Frazier asks for a judgment for the balance due on the $1,000 note.</p> <p>The answer filed by H. B. Parson and A. M. H. Parson denies the accusations of fraud, alleges that A. M. H. Parson owns the $50 note signed by Brown, and asks for a judgment for the amount of that note. The Circuit Court found:</p> <p>That Frazier was a purchaser of the $1,000 note “in due course, for a valuable consideration, and without notice of any infirmity therein”; and that “neither the defendant A. M. H. Parson or H. B. Parson, acting as her agent or otherwise, made any false or fraudulent representations to plaintiffs, or either of them, for the purpose of inducing them to purchase said automobile. ’ ’</p> <p>The trial resulted in a judgment in favor of Charles B. Frazier for the balance due on the $1,000 note, and a judgment in favor of A. M. H. Parson against the plaintiffs for the amount due on the $50 note which had been signed by Brown alone. The plaintiffs appeal.</p>

<p>Divorce — Cruelty and Indignities — Sufficiency of Evidence.</p> <p>1. In a wife’s suit for divorce for cruel and inhuman treatment and personal indignities rendering her life burdensome, evidence 7teld sufficient to sustain decree for her.</p> <p>[As to divorce on the ground of cruelty, see note in 65 Am. St. Rep. 69.]</p> <p>Divorce — Division of Property — Realty—Averment and Proof.</p> <p>2. In a wife’s suit for divorce, where the complaint asserted that the description of the husband’s realty was unknown, and asked that as soon as ascertained it might be inserted in the complaint, and the property divided, and the only description of the property in evidence was the husband’s, that he had “lot 2, bloek 39, bloek 47, and lot 70 in bloek 32,” which would sell for $1,200, not stating the state, county or city, there was a failure of averment and proof as to the realty, so that no interest therein could be decreed to the wife.</p> <p>Divorce — Division of Property — Award in Lieu of Realty.</p> <p>3. In a wife’s suit for divorce, where there is a failure of averment and proof as to the description of the husband’s realty, the wife will be awarded one third of the value thereof as estimated by him in his testimony.</p>

<p>Judgment—Pleading—Recovery.</p> <p>1. A plaintiff can recover only on the ground of the negligence alleged in the complaint.</p> <p>Negligence—Personal Injuries—Liability of Elevator Manufacturer.</p> <p>2. The manufacturer of an elevator was liable to one injured by reason of defects while riding thereon after delivery to the purchaser only if such elevator was defective in original construction or installation.</p> <p>Negligence — Personal Injuries Against Elevator Manufacturer — Instruction—Propriety Under Pleading.</p> <p>3. In suit by a passenger on an elevator against the elevator, manufacturer, where the plaintiff alleged that at the time of the accident the elevator was defective, and that it was negligently operated by the manufacturer’s servant in charge, there being no dispute but that, as between the owner of the building and the elevator company, the apparatus had been completed and accepted before the accident, and was being used by the tenant for its own purposes, the court properly excluded faulty construction as an element of the liability of the elevator company.</p> <p>Negligence — Personal Injuries — Elevator—Liability of Manufacturer.</p> <p>4. An elevator company whose elevator had been completed and accepted and was being used by the tenant of the building for its own purposes before a passenger was injured thereon by reason of defects arising after acceptance was not liable for such injuries.</p> <p>Negligence — Injuries on Elevator — Action—Instruction.</p> <p>5. In an action for injuries against an elevator company which installed an elevator in a building, and thereafter, by contract with the tenant, became responsible for the operation of the car, an instruction that, if the jury found that the aeeident was not caused by the act of its employee or the operator of the elevator, verdict should be for the elevator company, was proper as fairly submitting the issue against the company on the only fault imputable to it under the evidence that the elevator had been accepted by the tenant before the aeeident and the pleadings that the accident was caused by the lack of skill of 'the elevator company’s operator.</p> <p>Negligence — Injuries on Elevator — Action—Instruction.</p> <p>6. In an action against an elevator company which installed an elevator for injuries to a passenger after acceptance of the apparatus by the tenant of the building, the company having contracted to operate the elevator, where the evidence was undisputed-that the elevator had been accepted by the tenant before the accident and was being .used for its own purposes, while the plaintiff pleaded that the accident was caused by the negligence of the elevator company’s operator, instructions that such company was not responsible for defects in the ways, means, tools or appliances used by its employee in operating the elevator were proper.</p> <p>[As to liability of proprietor of elevator for injuries to person other than passenger, see note in Ann. Cas. 1914B, 373.]</p>

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Jttstice Bean. This is an action by Louisa Johnson against the Portland Railway, Light & Power Company, a corporation, to recover $10,000 damages for a personal injury. The cause was tried to the court and jury and a verdict and judgment rendered in favor of the defendant. Plaintiff appeals.

<p>From Clatsop: Jambs A. Eakin, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Chan Sing, Lum Sue, George Howe, Alex Karsen and N. Goldberg to enjoin the City of Astoria and its officers from enforcing an ordinance requiring certain classes of business to close at fixed hours of each day in the week. The original complaint alleged the incorporation of the city as a municipality under acts of the legislative assembly and “pursuant to acts amendatory thereof adopted by the legal voters of said municipality. ” It is averred:</p> <p>“That subdivision 3, Section 38, of the charter of said municipality is in these words as follows, to- wit: ‘3. To license, tax and regulate auctioneers, hotel runners, solicitors, book agents, real estate and insurance agents, brokers, taverns, boarding-houses, hawkers, peddlers, pawnbrokers, barbers, bakers, dealers in general merchandise, clothing, boots and shoes, groceries, dry-goods, meat markets, hardware, tinware, crockery, glassware, millinery, dealers in cigars and tobacco, fruit and confectionery, lawyers, doctors, furniture stores, dentists, book and stationery stores, commission merchants, tailoring establishments, jewelry stores, and all offensive trades and occupations, and to define what shall constitute the same. ’ ’ ’</p> <p>It is further alleged that Section 39 of the charter reads thus:</p> <p>“The power and authority given to the council by Section 38 can only be exercised or enforced by ordinance, unless otherwise provided, and a majority of the council may pass any ordinance or make any by-law not repugnant to the laws of the United States or of this state, necessary or convenient for the carrying such power and authority, or any part thereof into effect, and as may be necessary to secure the peace and good order of the city, and the health of its inhabitants.”</p> <p>The pleading states that so far as it could lawfully do so the common council of the defendant city, on December 21, 1914, passed an ordinance, of which Section 1 is here set down:</p> <p>“Every person, firm, company or corporation owning, operating, or conducting any store within the City of Astoria, Clatsop County, Oregon, selling, and dealing in general merchandise, groceries, clothing, boots and shoes, dry-goods, jewelry, meats, and hardware, shall close or cause to be closed, such place or places of business at the hour of six (6) o’clock p. m. of each day of the week, excepting Saturday, on which day the same shall close at the hour of nine (9) o’clock p. m. and such place or places of business hereinbefore designated, shall be kept closed until the hour of five (5) o’clock of the morning following and all such place or places of business shall be kept closed and not transact any business therein on or during the first day of the week, commonly called Sunday, provided, however, that the provisions of this ordinance shall not be effective for a period of one (1) week preceding Christmas Day, the 25th day of December of each and every year. ’ ’</p> <p>The plaintiffs litigating for themselves and all the others in similar situation describe their several establishments, one as the owner of a clothing store and tailoring shop, another as a grocery store, a third as a novelty store, and the fourth and fifth as clothing stores. They say they derive a large portion of their trade from workingmen and their families who are habitually employed in various vocations from 7 a. m. to 6 p. m. daily except Sunday; that many others are engaged in fishing in which the hours of labor are very irregular and sometimes much prolonged, so that it is inconvenient for such people to make purchases before 6 o’clock in the evening. With but one exception the plaintiffs reside with their families in the rear of their stores and employ no clerks or other assistance except that given by members of their families or those directly interested in the business. According to the allegations of the complaint, there is in Astoria a class of business men owning large stores, denominated in the pleading “principal merchants,” all of whom close their stores at 6 o’clock in the evening because the clerk’s union, whose members they employ, refuses to work after that hour. It is further stated that there are various stores and places of business in the city not enumerated or included within the terms of the ordinance and which will not be affected thereby, but which will continue to remain open every night of the week until 9 or 10 o ’clock and all day on Sunday. In this class the plaintiffs enumerate drug stores, which in addition to drugs and medicines, in every instance sell stationery, perfumes, toilet articles and other goods mentioned, besides stores devoted to the sale of cigars, millinery, fruit and confectionery, furniture, books and stationery, all of which will be exempt from the ordinance. They say that if the city law in question is enforced against them, they will not only be compelled to close their business and lose their trade, but also ingress to and egress from their dwelling quarters will be seriously prejudiced. On motion of the defendants the court struck out the quotations from the charter of the city, together with all allusion to other occupations not subject to the ordinance. Other matter was stricken out, but, owing to the fact that it was described by reference to words and lines of the original complaint which is not before us, the printed abstract is unintelligible on that subject. An amended complaint was filed, omitting the matter which had been elided from the original. To this latter statement of the grievance of the plaintiffs the court sustained a demurrer, and, as they refused to plead further, rendered a decree dismissing the suit. This appeal followed, wherein the plaintiffs assign as error the striking out of part of their original complaint and sustaining the demurrer to the amended pleading.</p> <p>Submitted on briefs without argument under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).</p>

Prom Multnomah: George N. Davis, Judge. This is a suit by John Spady against Katherine Spady, in which the plaintiff seeks to have their marriage contract annulled and he be given an absolute divorce. The defendant filed a cross-bill, and from a decree in her favor, plaintiff appeals. The facts are set forth in the opinion of the court.

From Lane: George F. Skipworth, Judge. Statement by Mr. Chief Justice Moore. This is a suit by Welby Stevens and others to enjoin S. W. Taylor, treasurer of Lane County, Oregon, J. C. Parker, sheriff of Lane County, Oregon, and the Town of Springfield, a municipal corporation, from collecting a part of the taxes attempted to be levied by the Town of Springfield, Oregon.

From Multnomah: Henry L. Benson, Judge. Statement by Mr. Chief Justice Moore. This action was commenced February 11, 1913, by Anna Humphry against the City of Portland, the then members of the common council, the mayor and the engineer of that city, and Mary J. Reece, now Mrs. Frederickson, to recover damages for a personal injury.

From Multnomah.: Henry E. McGinn, Judge. Statement by Mr. Justice McBride. This is an action by Manoah A. Jenkins against the Carman Manufacturing Company, a corporation, for personal injuries, which plaintiff claims to have sustained by reason of defective machinery or appliances in defendant’s sawmill.

From Marion: William Galloway, Judge. Statement by Mr. Justice Burnett. This is a suit by H. S. McGowan and Lida D. McGowan against tbe Willamette Valley Irrigated Land Company, a corporation.

From Linn: Percy R. Kelly, Jndge. Statement by Mr. Justice McBride.

<p>Specific Performance — Pleading—Sufficiency.</p> <p>1. In a suit for specific performance, the complaint set out the contract, which recited that plaintiffs owned the land in question, and averred that plaintiffs duly performed all conditions of the contract on their part and tendered defendants a warranty deed. There was no demurrer or motion to make more definite and certain. Held, in view of section 88, L. O. L., declaring that, in pleading performance of a condition precedent to a contract, it shall not be necessary to state facts showing such performance, but performance may be stated generally, the complaint must be deemed sufficient to show title in plaintiffs.</p> <p>[As to basis of doctrine of specific performance, see note in 128 Am. St. Rep. 383.]</p> <p>Pleading — Issues—Admissions.</p> <p>2. In a suit for specific performance of a contract to purchase land, where the contract, signed by all parties, recited that plaintiffs were owners, title was admitted, and no other proof was necessary.</p> <p>Specific Performance — Right to Remedy.</p> <p>3. A contract to buy land may be specifically enforced, though the vendors have an action at law for damages.</p> <p>Vendor and Purchaser — Contracts—Validity.</p> <p>4. Where the vendors agreed to convey, the buyer’s promise to purchase is supported by consideration, and is not nudum pactum.</p> <p>Vendor and Purchaser — Contracts—Actions.</p> <p>5. That although the testimony shows that the buyers had never seen the purchasers, the negotiations being carried on. through brokers, does not show that there was no meeting of the minds of the parties.</p> <p>Specific Performance — Contract to Purchase Land — Defenses.</p> <p>6. Specific performance of a contract to purchase land will not be denied because the buyers had collected a note they agreed to assign to the vendors; for a court of equity will follow the proceeds of the note and compel delivery thereof to the vendors.</p>

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice McBride. This is an action in ejectment by Esther P. Wettersten and Charles A. Johns, guardian of the person and estate of Esther P. Wettersten, a minor, against Susie Fisher and Leonard Fisher, to recover an undivided one-third interest in lot 8, block 7, Central Albina, an addition to the City of Portland, Multnomah County, Oregon. The cause was tried before the court without a jury.

From Clackamas: James U. Campbell, Judge. This is a suit for injunction by the Molalla Electric Company, a corporation, against Irvine Wheeler and Jennie Wheeler, husband and wife. From a decree in favor of defendants, plaintiff appeals. The facts are set forth in the opinion of the court.

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

<p>Judgment — Conclusiveness—Legal and Equitable Defenses.</p> <p>1. It is well established in this state that a party may rely upon a legal defense in an aetion at law without being precluded from afterward asserting and setting up his equitable title in an original suit against which the judgment in the law action is no bar.</p> <p>[As to matters concluded by judgment, see note in 15 Am. St. Rep. 142.]</p> <p>Estoppel — Knowledge of Error in Deed and Failure to Assert Right.</p> <p>2. Where a grantee accepts a deed with knowledge that it did not contain a covenant in his favor which he afterward claimed was omitted through fraud, and having acquiesced in the covenants and conditions, and exercised ownership and held possession for several years, he cannot then attack the deed on that ground.</p> <p>Deeds — Reformation of Covenants in Deed — Evidence Insufficient to Establish Fraud.</p> <p>3. In a suit to reform a deed and to restrain the enforcement of a judgment in ejeetment, the covenant providing that the property should revert to the grantors in case livery business was carried on upon the premises conveyed, evidence held not sufficient to establish that the grantors were guilty of fraud in the execution of the deed, or that plaintiff was entrapped into allowing a livery business to be carried on upon the property.</p> <p>Deeds — Construction.</p> <p>4. Where a forfeiture clause in a deed, taken as a whole, shows that the word “devert” .was used in the sense of “revert,” and the testimony shows that it was so understood by the party against whom the forfeiture is sought to be enforced, the court will so construe it.</p> <p>Deeds — Construction—Forfeiture.</p> <p>5. Courts are reluctant to enforce a forfeiture, and will seize on any ambiguity to declare a provision of this ch'araeter a covenant instead of a condition.</p>

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Bean. This is an action by B. N. Doolittle against the Pacific Coast Safe & Vault Works, a corporation, for damages for breach of a contract. The court tried the cause without a jury, making findings of fact in favor .of the plaintiff. From a judgment rendered thereon for $1,000 defendant appeals.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Chief Justice Moore. This is an action by Barton A. Wheeler against the Nehalem Timber and Logging Company, a corporation, to recover damages for a personal injury.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit for divorce by Bertha B. Thompson against John W. Thompson.</p> <p>Defendant appeals from a decree granting plaintiff a divorce and a one-third interest in a quarter section of land owned by him.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Benson. This is a suit by the Portland & Oregon City Railway Company, a corporation, against the Ladd Estate Company, a corporation, to condemn a strip of land about 25 feet in width and 6,080 feet long through an unplatted, undeveloped tract of land in the City of Portland containing about 269 acres.

From Multnomah: John P. Kavanatjgh, Judge. Statement by Mr. Justice Benson. This is an action by Robert Sanders against J. M. Taber, M. E. Taber and J. E. Taber to recover damages for an injury. The following are the facts: On July 4,1914, plaintiff was riding on the rear seat of a motorcycle driven by one Williamson. They were traveling south on Grand Avenue, Portland. At the same time defendant J. M. Taber was driving an automobile north on that street.

<p>Appeal and Error—Notice—Time for Service—“Within the Day.”</p> <p>1. In view of Section 201, L. O. L., providing that judgment in conformity to the verdict shall be entered by the clerk “within the day” on which verdict is returned, the term “within the day,” meaning within 24 hours, where verdict was returned December 5th at 5:25 P. M. and judgment entered December 6th at 2:10 p. M., a notice of appeal served and filed February 4th was within the 60 days from the entry of judgment.</p> <p>ON THE MERITS.</p> <p>Appeal and Error—Presenting Questions in Trial Court—Challenges to 3 ury.</p> <p>2. Under Section 117, L. O. L., providing that no challenge shall be made or allowed to a jury panel, a complaint that the cause was ■tried before special jurors cannot be considered on appeal, where none of the jurors was challenged.</p> <p>[As to right to interpose challenge to array of jurors in absence of statute, see note in Ann. Cas. 1912A, 1137.]</p> <p>Appeal and Error — Record — Questions Presented for Review—Evidence Excluded.</p> <p>3. Under Section 171, L. O. L., requiring-an exception to state the objections with so mueh of the evidence or other matter as is necessary to explain it,-and no more, where a bill of exceptions does not disclose the answers whieh plaintiff expected to excluded interrogatories to witnesses, the Supreme Court cannot determine whether they would have been favorable to plaintiff.</p> <p>Negligence—Actions—Admissibility of Evidence—Subsequent Conditions.</p> <p>4. In an action for causing death, subsequent changes or repairs cannot be proved to show antecedent negligence, but, where the jury have viewed the premises, evidence of any alteration since the injury is admissible.</p> <p>Appeal and Error—Review—Harmless Error—Exclusion of Evidence.</p> <p>5. In an action for causing death, any error in exeluding evidence of conditions at the place of the accident subsequent to the event where the jury viewed the premises was cured by the admission of evidence describing the conditions at the time of the accident.</p> <p>Railroads — Accidents at Crossings — Actions—Questions for- Jury.</p> <p>6. In an action for causing death, in a railroad crossing accident, evidence of decedent’s contributory negligence held, sufficient to take the question to the jury.</p> <p>Trial — Questions of Fact — Sufficiency of Evidence.</p> <p>7. Where more than one inference may be drawn legitimately from the evidence, one favorable and the other unfavorable to the party having the burden of proof, the question is for the jury, and this rule is applicable to plaintiff as well as defendant.</p>

<p>Damages — Liquidated Damages — Breach—Construction.</p> <p>1. A stipulation in a contract for the improvement of streets that if the work was not completed by September 15, 1909, the contractor should forfeit the sum of $10 for each day, Sundays excepted, elapsing after the expired time to date of completion, provided that if in the engineer’s opinion the delay was unavoidable, the city council might extend the time for completion, secured by the bond of a surety company conditioned for the contractor’s performance of the contract, was limited to the time between September 15, 1909, and the completion of the improvement, and contemplated a fulfillment of the contract, and not a breach by abandonment, and showed an intention that it should not apply to general damages, but only to mere delay.</p> <p>[As to effect of contract liquidating damages, see note in 108 Am. St. Rep. 50.]</p> <p>Damages — Liquidated Damages — Action—Sufficiency of Complaint.</p> <p>2. In the city’s action on such bond, begun April 21, 1913, alleging that there was no cause for delay and no extension of time, its demand on the contractor and surety to complete the contract and their refusal to do so, and damages at $10 a day from the specified time of completion, not showing the completion of the contract so as to fix the termination of the period of forfeiture to which the damages might be applied, was bad on demurrer.</p> <p>Damages — Liquidated Damages — Forfeitures.</p> <p>3. Forfeitures are to be strictly construed, and one who would avail himself of them must bring himself precisely within the letter of the contract authorizing them.</p> <p>Damages — Liquidated Damages — Grounds.</p> <p>4. In general, damages are limited to compensation that the injured party may be made whole, and it is only where it is difficult or impossible to calculate the actual damages that the previous stipulation of the parties for liquidated damages will be enforced.</p> <p>Damages — “Nominal Damages” — Breach of Contract.</p> <p>5. Where an agreement is stated and a breach thereof is alleged, the measure of damages, in the absence of anything else, will, be an award of “nominal damages,” which means those damages -that exist only in name and not in amount; no damages at all; a mere peg to hang costs on; such as are awarded in a case where there has been a breaeh of a contract and no actual damages whatever have been or can be shown.</p> <p>Pleading — Construction After Verdict.</p> <p>6. After verdict, the pleadings will be construed most strongly against the defeated pleader.</p> <p>Damages — Nominal or Substantial Damages — Complaint—Evidence.</p> <p>7. A complaint, in a city’s action against a contractor to recover damages, alleging the making of the contract and that the contractor entered upon the performance thereof, was not predicated upon the allowance of nominal damages, but inferentially alleged that the defendant had done part of the work beneficial to the city, so that it was competent for defendant to show such benefit to the city and lessen the claim for general damages and effectually overcome mere nominal damages arising from a technical breach of the contract.</p> <p>New Trial — Grounds—Nominal Damages.</p> <p>8. As a general rule, a new trial will not be granted to enable a party to recover nominal damages.</p> <p>Appeal and Error — Review—Invited Error.</p> <p>9. "Where a city suing its contractor to recover general damages on a partly completed contract did not offer to prove that branch of the case, error, if any, in the court’s refusal to consider that phase of the contention was error invited by the plaintiff, availing it nothing on appeal.</p> <p>Appeal and Error — Review-—Theory of Case Below.</p> <p>10. Where su-eh action was avowedly tried on the assumption that the per diem compensation of $10 per day as liquidated damages was the only proper measure of damages, and where the plaintiff, having had its day in court on the feature of general damages, refused to avail itself of sueh opportunity, it could not, on appeal, have the case considered on the question of nominal damages.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice Harris. B. C. Heighton commenced an action at law against Charles T. Tooze for the recovery of $3,482 on account of the failure of the latter to comply with an alleged agreement concerning land.

<p>Appeal and Error — When Affirmed Regardless of Technical and Immaterial Errors.</p> <p>1. Article VII, Section 3, of the Constitution provides that where on appeal the record contains all the testimony, the instructions of the court to the jury, and all other matters material to the decision as made in the lower court, from a consideration of all which the appellate court is of the opinion that the judgment rendered by the court below is such as should have been rendered, the ease on appeal will be affirmed, notwithstanding the errors assigned by appellant which do not affect the justness of the judgment.</p> <p>Judgment — Conclusiveness.</p> <p>2. When a question has been fully and finally litigated and decided between two parties by a court having jurisdiction of them and the subject matter involved, the judgment is the end of the law, and finally concludes both parties.</p> <p>[As to necessity that judgment remove all uncertainty in order to be res judicata, see note in 44 Am. St. Rep. 563.]</p> <p>Appeal and Error — Review—Consideration or “Bill of Exceptions.”</p> <p>3. In view of Section 169, L. O. L., the Supreme Court can examine the bill of exceptions to determine the true character of the judgment below, since, a “bill of exceptions” is an authoritative declaration of the trial court concerning matters that would not properly appear in the mere journal entry of the judgment; its object being to bring into the record matter that would not otherwise appear in order to lay the foundation for proceedings in error and for the information of the appellate court.</p> <p>Judgment — Conclusiveness—Nonsuit—Statute.</p> <p>4. Under section 184, L, O. L.,' providing that when a judgment of nonsuit is given the action is dismissed, but such judgment shall not bar another action for the same cause, where plaintiff made offers of testimony, many of which were overruled, and rested, and without also resting, defendant’s counsel moved “for findings of the court for judgment for the defendant and that it recover of the plaintiff its costs and disbursements,” the judgment for defendant entered upon such motion was not conclusive in another suit on the same cause of action, since the motion of defendant amounted merely to a demurrer to evidence and resulted only in a judgment of nonsuit.</p> <p>Appeal and Error — Bill of Exceptions — Admission of Offer of Testimony.</p> <p>5. Where defendant’s bill of exceptions states that “plaintiff offered testimony tending to prove all the allegations contained in the complaint,” defendant cannot assign error to the insufficiency of plaintiff’s evidence to prove the allegations.</p>

<p>Appeal and Error — Dismissal—Defects in Abstract — Time to Move.</p> <p>1. When an indorsement on the abstract of the record shows that plaintiff’s accepted service thereof August 12, 1914, thereby obtaining knowledge of any alleged failure of defendant to comply with the statutes or rules of court as to filing of an appeal, under Supreme Court Rule 23 (56 Or. 623, 117 Pac. xii), plaintiff’s motion to dismiss defendant’s appeal, to escape denial, must have been made within ten days of August 12th.</p> <p>Pleading — Meritorious Defense — General Denial.</p> <p>2. A general denial is a complete defense, unless inconsistent with the subsequent affirmative allegations of the answer.</p> <p>Partnership — Suit Between Partners Prior to Dissolution.</p> <p>3. An action at law will not lie between partners upon a claim growing out of the partnership transactions until the partnership business is wound up and the accounts finally settled, since until an accounting is had it cannot be known, but that plaintiff may be liable to refund more than he claims in the particular transaction.</p> <p>Partnership — Suit Against Partner by Firm’s Assignee.</p> <p>4. Where a partnership assigns for collection its account against a member of the firm, the assignment not depriving the firm of a beneficial interest in the account, the assignee cannot sue the partner owing the account, under the rule that an action at law will not lie between partners upon a claim growing out of partnership transactions until the business is wound up and accounts settled.</p> <p>Judgment — Judgment by Default — Vacation.</p> <p>5. Defendant, against whom a default was taken when he thought that negotiations for a settlement were still pending, he continuing so to believe until proceedings upon execution were begun, when he promptly filed his motion to vacate the default, was entitled to the relief.</p> <p>[As to forgetfulness as ground for opening default judgment, see note in Ann. Cas. 1914B, 589.]</p>

From Tillamook: Webster Holmes and H. H. Belt, Judges. This is a suit by Otelia Hadley against C. E. Hadley, D. J. Hadley, Maud Sharp and C. W. Talmage, administrator of the estate of C. B. Hadley, deceased. From a decree dismissing the suit, plaintiff appeals.

From Josephine: Frank M. Calkins, Judge. Statement by Mr. Justice McBride. This is a suit to set aside and cancel a lease and deed executed by George W. Meek to John and Herbert Meek, his sons, and for other equitable relief, which will be noticed in the opinion.

<p>Fraud — Damages—Actions—-Evidence.</p> <p>1. In an action for damages for misrepresentations in exchanging a rooming-house for land, evidence that one of the defendants after the sale suggested that the premises could be made to pay if run as an immoral resort is improper.</p> <p>Appeal and Error — Review—Harmless Error.</p> <p>2. In such case, where it does not affirmatively appear that the error did not affect the judgment, the judgment cannot, under Article VH, Section 3, Constitution, as amended (see Laws 1911, p. 7), be affirmed despite the error.</p> <p>Fraud — Misrepresentation—Actions—Damages.</p> <p>3. In an action for damages for misrepresentations in effecting an exchange of a rooming-house for plaintiff’s lands, plaintiffs cannot recover if they received in exchange for their lands property equal in value.</p> <p>[As to right of action for misrepresentation, see note in 18 Am. St. Rep. 555.]</p> <p>Trial — Reception of Testimony — Hearing of Witnesses.</p> <p>4. Under Section 856, L. O. L., declaring that the court may stop the production of further evidence upon any particular point when the evidence upon it is already so full as to preclude reasonable doubt, the court, while entitled in an action for damages which involved the values of property to limit the number of witnesses, should not, in view of the fact that the estimates of witnesses vary, limit defendants to tírree witnesses as to the value of property delivered to plaintiffs in exchange for land.</p>

<p>Fraud—False Representations as to Value.</p> <p>1. On an exchange of farm land for city property, defendant’s statement as to the value of his property was not fraud upon which an action for deceit could be predicated where he did not attempt to prevent plaintiffs from making a full investigation; and they did examine the property, since, to amount to fraud, representations as to value must be coupled with some untrue or misleading statement of fact used to reinforce the opinion, and the person alleged to have been defrauded must be thereby induced to forego further inquiry as to the worth of the property.</p> <p>Fraud—False Representations as to Value—Failure to Exercise Care.</p> <p>2. At the time plaintiff exchanged farm lands for property in Portland he knew people in Portland other than defendant, and after the trade was made and he became dissatisfied he had different real estate men look at the property, and ascertained that it could not be sold for the amount of encumbrances against it. He claimed that defendant misrepresented its value. Held that, as all the avenues of inquiry which he afterward pursued were open to him as well before the exchange as afterward, the court did not err in granting a new trial on the ground that plaintiff did not exercise ordinary care for his own protection.</p> <p>Release—“Consideration”—Necessity of Benefit to Releasor.</p> <p>3. Plaintiff claimed that he was induced to exchange farm land for city property owned by defendant by defendant’s misrepresentation of the v-alue of the property. Real estate agents employed by him to find a purchaser for his land had promised that they would procure him a loan on the city property after the exchange was made. They were unable to do this, and agreed to return a note held by them and pay plaintiff $250 in settlement of his claim against them for damages. They returned the note and paid him $25, but claimed they were unable to meet the remainder of their obligation, and stated they would endeavor to get defendant to pay part of it. Defendant was interviewed and promised to pay $300 if plaintiffs would release him from all claims or causes of action arising out of the exchange, and plaintiff accordingly executed a release to defendant and the real estate agents and received the promised payment; the money being furnished by the agents and afterward repaid by defendant. Held that, though plaintiff received no more than what the agents had already agreed to pay him, there was nevertheless a consideration for the release of defendant/ consisting of defendant’s payment of a part of the debt of the real estate agents, since, to constitute a “consideration” for a contract or promise, it is not absolutely necessary that a benefit should accrue to the person mating the promise, and it is sufficient that something valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction.</p> <p>[As to liability of vendor of real estate for false representations innocently made, see note in Ann. Cas. 1913C, 73.]</p>

<p>Prom Multnomah: Henry E. McGtnn, Judge.</p> <p>Statement by Mr. Justice Benson.</p> <p>This is an action by Will E. Purdy against the estate of H. D. Winters, deceased, Agnes Butts (now Agnes Hecker), as administratrix of the estate of H. D. Winters, deceased; C. M. Idleman and Agnes Hecker, formerly Agnes Butts, for damages. The complaint, which is quite voluminous, recites a portion of the proceedings in a certain suit to quiet title wherein Agnes Butts (now Agnes Hecker) was plaintiff and Will E. Purdy, plaintiff herein, was defendant; that said suit was decided adversely to Purdy, was appealed to this court, and the decree of the trial court affirmed: Butts v. Purdy, 63 Or. 150 (125 Pac. 313, 127 Pac. 25). It reiterates his ownership and right of possession in the property then in litigation, and that said property is of the reasonable value of $100,000. Then follow allegations to the effect that Agnes Butts procured let-ters of administration of the estate of H. D. Winters, deceased, by the fraud and deceit of herself and her attorney; that during the trial of the suit above mentioned she and her attorney, defendant Idleman, connived, confederated and conspired with others in various particulars with reference to the introduction of evidence, the suppression of evidence, and the creation of a false atmosphere of deceit and fraud in regard to his own actions and reputation, whereby the trial court and this court were misled and deceived into rendering an unrighteous decree, which deprived him of property which was rightfully his; and that he was thereby damaged in the extent of the value of the property, to wit, $100,000, for which he demands judgment. Demurrers were filed and by the trial court sustained. The plaintiff having elected to stand upon his complaint, a judgment of dismissal was entered, from which this appeal is taken.</p>

From Yamhill: Webster Holmes, Judge. Statement by Mr. Justice Bean.

From Lane: Lawrence T. Harris, Judge. This is a suit by David W. Hennigan against A. C. Mathews and Minnie Mathews, his wife. From a decree in favor of defendant, plaintiff appeals. The facts are set forth in the opinion of the court.

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Chief Justice Moore.</p> <p>This is a suit by A. H. Wright, as plaintiff, against L. Wimberly and Cora Wimberly, husband and wife, O. C. Jones, G. H. Carter, H. Doherty, Grace Burnett, W. H. Vrooman and E. Wagner to foreclose a mortgage.</p> <p>It is alleged in the complaint that on January 28, 1910, the defendants L. Wimberly and Cora Wimberly, his wife, executed to O. C. Jones their promissory note of $3,000, payable on or before ten years with 6 per cent interest payable annually, and, if not so paid, the whole sum to mature upon such default at the option of the holder of the note, and in case of suit or action thereon, the makers promised to pay such additional sum as the court might adjudge reasonable as attorney’s fees; that, in order to secure the payment of that note, the makers thereof executed to the payee named therein a mortgage of a tract of real property in Douglas County, Oregon, particularly describing the premises, which mortgage was duly recorded; that by sundry transfers the note and mortgage were duly assigned to the plaintiff, who is the owner and holder thereof; that default has been made in the payment of the matured interest, whereupon the plaintiff elected to treat the principal and such interest as due and payable and so notified the makers of the note and the several indorsers thereof; that $300 is a reasonable sum as attorney’s fees; that other named defendants have or claim some interest in or lien upon the mortgaged land, but that such assertion of right or estate is subordinate and inferior to the plaintiff’s lien on the premises. In addition to the ordinary prayer for a decree of foreclosure and sale of the mortgaged premises, the plaintiff asks that, if the proceeds of such sale be insufficient to meet the payment of his demands, he may have judgment over against the makers of the promissory note for such deficiency, and that execution may issue for the collection thereof.</p> <p>The averments of the complaint are admitted by the answer, which alleges that on January 27, 1910, for the consideration of $4,000 the defendant L. Wimberly purchased the real property described in the complainl from O. C. Jones and Ella Jones, his wife, who executed to him a deed therefor which was duly recorded; that he then paid them on account thereof $1,000, and he and his wife executed to O. C. Jones a mortgage of the real property so conveyed, to secure the payment of $3,000, the remainder of the purchase price of the premises, and for no other purpose. The prayer of the answer is that no deficiency judgment may be rendered against the makers of the promissory note.</p> <p>The averments of new matter in the answer are denied, upon information and belief, in the reply which alleges that the plaintiff obtained the promissory note long prior to any default in the payment of interest, giving full value for it, and that he is an innocent purchaser thereof in good faith.</p> <p>The cause being thus at issue was tried, whereupon the prayer of the complaint was granted, except that no deficiency judgment was rendered against the makers of the promissory note, from which decree the plaintiff appeals.</p>

From Clackamas: James U. Campbell, Judge. Statement by Mr. Justice Benson. Tbis is an action by Valeria G. Benvie against the Portland Railway, Light & Power Company, a corporation, for damages resulting from personal injuries in alighting from one of defendant’s interurban cars.

<p>Deeds — Validity—Mental Capacity of Grantor.</p> <p>1. Where the preponderance of the evidence showed that the grantor of a trust deed disposing of all his property was a sick, half-demented old man incapable of managing his own affairs, or of estimating the gravity of the conveyance he was making, that he was completely under the influence of his son whom he made trustee, that he had a fear that his divorced wife would attempt to get more of his property, while his children were anxious to have it secured in some way for fear lie would marry again, as lie seemed anxious to do, being a monomaniac on tbe subject of marriage, the deed will be set aside for want of capacity.</p> <p>[As to avoidance of deed of incompetent person in action of ejectment, see note in Ann. Oas. 1915D, 1025.]</p>

<p>From Clackamas: James U. Campbell, Judge.</p> <p>Statement by Mr. Chief Justice Moore.</p> <p>This suit was commenced June 21, 1911, in tbe Circuit Court for Clackamas County,- Oregon, by Tb.om.as O. Hague against Anna E. Hague for a divorce. Tbe affidavit of the plaintiff, for the service of the summons* omitting the subscription, verification and filing, reads:</p> <p>“State of Oregon,</p> <p>County of-, ss.:</p> <p>“I, T. O. Hague, being duly sworn, say: That I am the plaintiff in the above-entitled suit,- that tbe complaint in said action was filed with the clerk of said court on the - day of May, 1911, and summons thereupon issued. That a cause of suit exists in my favor against the defendant above named, the grounds of which are as follows: That the defendant, Anna E. Hague, willfully and without cause deserted and abandoned the plaintiff in the State of New York on the 13th day of August, 1893, and has refused to live with the plaintiff ever since. That the plaintiff has been a resident of the State of Oregon for the period of five years immediately preceding the commencement of this suit. That said defendant is a necessary and proper party defendant in said suit. That said summons issued as aforesaid was delivered to the sheriff of Clackamas County, with directions to said sheriff to serve the same upon the defendant, Anna E. Hague, and said sheriff has returned said summons to the clerk of this court, with his return thereon indorsed to the effect that said defendant could not be found in his county. That said defendant cannot after due diligence be found within this state, although diligent inquiry and search for the purpose of finding her have been made as follows: By inquiring of her former neighbors and acquaintances and of--. That the defendant was last living in the city of New York, in the State of New York, and is believed to be still living there. That the present place of residence of said defendant is New York City, N. Y. That this affiant therefore says that personal service of said summons cannot be made on said defendant, Anna E. Hague, and prays for an order that service of the same may be made by publication thereof in the ‘ Oregon City Enterprise,’ a journal of general circulation published at Oregon City, Oregon.”</p> <p>Founded upon that affidavit an order was made by .the county judge of that county directing a publication in the “Oregon City Enterprise” of the summons, and that a copy thereof and of the complaint he forthwith mailed to the defendant at her place of residence. Proof of the printing was made by the affidavit of the printer of that newspaper, showing a publication of the summons once a week for seven consecutive weeks prior to August 7, 1911. The deposit of copies of the summons and complaint in the postoffice was made by the plaintiff’s attorney, who did not file any affidavit showing a compliance with the order of the county judge. There was filed in the Circuit Court on August 7,1911, an envelope, postmarked “Portland, Ore., June 26,1911, 12:30 p. m.,” addressed to “Anna E. Hague, New York City, N. Y.,” also having on the face of the wrapper, “After 5 days return to” plaintiff’s attorney, giving his name and the location of his office in Portland, Oregon, and having duly canceled stamps of the value of four cents. The envelope also has stamped on it the words, “Searcher No. 11,” beneath which appears the written command, “Try 108 E. 40.” There is also written on the envelope: “Cannot be tried. House closed. J. E. C.” The envelope, when opened in this court, evidently for the first time after it was sealed, was found to contain copies of the summons and complaint, duly certified to by the plaintiff’s counsel. Bottomed on that proof the cause was tried, and, as the defendant neither appeared nor answered, the state was represented by the district attorney. Testimony was received, and upon a consideration thereof a decree of divorce was granted the plaintiff August 7, 1911. The defendant’s counsel on October 1, 1914, moved to expunge the “pretended decree” on the ground that it was fraudulently procured, and that Mrs. Hague had only just prior to the application learned that the decree had been given. This motion was sustained, and an answer was permitted to be filed, denying the charge of the complaint, and alleging other facts, some of which are admitted, and others denied, in the reply. The cause was tried, and the plaintiff secured a decree of divorce, from which the defendant appeals.</p>

Prom Multnomah.: John P. Kavanaugh, Judge. Statement by Ms. Justice Burnett. This is an action by the Guaranty Trust Company against W. S. Dinwiddie.

From Tillamook: Harry H. Belt, Judge. This is an action by John W. Boyer, and M. C. Boyer against J. M. Burton. From a judgment in favor of plaintiffs, defendant appeals, and plaintiffs file cross-appeal. Defendant files motion to dismiss the plaintiff’s cross-appeal.

Prom Multnomah: David R. Parker, Judge. Statement by Mr. Justice McBride.

<p>From MultnomalL: Robert G-. Morrow, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>Tbis is an action by Jack Johnstone against the Chapman Timber Company, a corporation, and the Nehalem Timber and Logging Company, a corporation, for personal injuries. From a judgment for $2,500 on a verdict in favor of plaintiff, defendants appeal.</p> <p>It appears that at the time of the accident which occurred on November 21, 1912, the defendant Chapman Timber Company was operating a logging camp near Scappoose, Oregon, in conducting which it used two certain donkey-engines, one called a “yarder” and the other a “roader.” The yarder would drag the logs from the woods to the main road where the roader would then pull them to the rollway. Each donkey-engine had a set of cables composed of a main line and a trip line, the latter being used to draw the main line back to the woods after a log had been hauled in. The two lines formed a sort of endless chain. The plaintiff was known as a “chaser”; it being his duty to assist in taking the cable from the log after it had been pulled in to the main roadway, placing thereon the cable of the roader, and signaling to have the log dragged in. The yarder drew the logs to what was called the delivery point. On this there was also a chaser, one Jack Moon. His duties were the same as those of the plaintiff; the two often assisting each other in taking the cables off the logs. At the time the plaintiff was injured Moon was some ten feet from him. A log had just been hauled from the woods to the delivery point by the yarder from which plaintiff undertook to take the choker and attach the cable from the roader to the log. To do this he stepped between the log and a stump, and while at work another log was pulled in which struck the back end of the one he was working upon, pushing it forward and catching his leg between it and the stump, injuring him very severely. Plaintiff alleges as negligence that Moon did not warn him of the danger. After the accident plaintiff was taken to a hospital in Portland, and was treated by the company’s doctbr. On March 18, 1913, he brought an action against the Chapman Timber Company for the injuries which he received on the date mentioned. His attorneys at that time were Richards & Richards. In his complaint he set up practically the same cause of action as he here sets out.' At that time the doctor had succeeded in saving his leg, though plaintiff alleged that he would be permanently injured. In consideration of the sum of $750, the plaintiff made a settlement with the Chapman Timber Company on April 30, 1913, and signed a release freeing it from all claims, demands, and rights of action. This instrument was admitted by the plaintiff in his complaint. On the same day a stipulation was entered into between his counsel and that of the defendant company whereby on May 2, 1913, the action was dismissed with prejudice to any future action. On July 8, 1914, plaintiff brought the action on which he now seeks to recover damages. In the complaint therein he admits having signed the release and that settlement was made, but contends that at that time he was not informed of the true condition of his leg. He alleges that the company doctor who was treating him had told him that it would be saved, and, relying upon such representation, he settled for $750; that afterward he was compelled to have several operations performed, and finally the leg was amputated at the hip. The plaintiff offered to credit the $750 on any amount which he might receive on the verdict. After he was injured the Chapman Timber Company dissolved, and the Nehalem Timber & Logging Company took over its property. Plaintiff brings this aetion against both companies, alleging that the latter took over the assets of the former.</p> <p>The answer puts in issue the material charges of the complaint, and avers as affirmative defenses: (1) Assumption of risk; (2) fellow-servant; (3) contributory negligence and unavoidable accident; (4) the settlement as a complete adjustment and that Johnstone has not^ tendered back the $750; and (5) res adjudicata in that plaintiff had an action pending at the time he made the settlement and the action was dismissed with prejudice. The answer attaches the pleadings and judgment in the former case with all the proceedings as exhibits.</p> <p>In his complaint plaintiff, as a reason for avoiding the settlement and release, alleges:</p> <p>“That after plaintiff was confined in the hospital he was subjected to several surgical operations on his said injured leg, and was given large and frequent quantities of opiates, sedatives and medicines to allay pain, and while in such condition the defendants, acting through the physician in charge of. plaintiff, which physician was selected by the defendant company, and not by plaintiff, represented and stated to plaintiff that he would fully recover the use of his said right leg and would be an able-bodied,'strong man; that this plaintiff consulted with no other physician save and except the defendant company’s physician, to wit, Dr. Zan; that plaintiff is unskilled in such matters, and did not know his true condition, but relied upon the statements of said Doctor Zan, and believed the same to be true, and while believing the same to be true the defendants induced plaintiff, well knowing that plaintiff relied upon said physician, to make an attempted settlement for the injuries sustained by him, and the defendant company thereupon paid the plaintiff the sum of $750, and took from this plaintiff a purported release and satisfaction in full discharge of all injuries caused to plaintiff as stated, and thereafter the condition of plaintiff’s leg was such that eight additional operations were performed on plaintiff, and at the ninth operation his leg was amputated at the hip as herein set forth; that plaintiff did not know his true condition nor the condition of his leg at the time of executing the alleged release above set forth, and that the representations to plaintiff that he would soon recover and that he would have the normal use of his leg were false and untrue; that plaintiff did not know the falsity thereof until after the settlement had been made, and except and for such statements plaintiff would not have made the alleged and pretended settlement; that said settlement was procured by the misrepresentation, fraud and deceit of the defendant, acting through defendant company’s said physician as hereinbefore alleged.”</p> <p>That the consideration of $750 was and is totally inadequate to pay plaintiff for the losses, injuries and damages sustained by him.</p>