Volume 80 — Oregon Reports

From Tillamook: Webster Holmes, Judge. This is a suit by Lewis L. Smith against W. G. Dwight, in which there was a decree in favor of plaintiff and defendant appeals. Bespondent moves to dismiss the appeal. In Banc. Department 2. Statement by Mr. Justice Bean.

From Multnomah: Robert Gr. Morrow, Judge. In Banc. Statement by Mr. Justice McBride. This is a suit brought by S. Gr. Sargent, as superintendent of banks of the State of Oregon, on behalf of • all the creditors of the American Bank & Trust Company against said bank and L. 0.

<p>From Coos: John S. Coke, Judge.</p> <p>Department 2. Statement by Mr. Justice Harris.</p> <p>This is a suit by Jacob Mattson and Edla Mattson against A. C. Dresser, R. K. Dresser, J. C. Yondell and Mrs. J. C. Yondell, bis wife, L. H. Heisner and Elizabeth Heisner, Ms wife, Charles Heisner and Mrs. Charles Heisner, his wife, to foreclose a contract.</p> <p>A written contract for the sale of real and personal property was made between the plaintiffs as the sellers, and A. C. Dresser, R. K. Dresser, and J. C. Yondell, three of the defendants, as buyers. The amount of the purchase price was $7,000, of which $2,000 was paid at the time of making the agreement, leaving a balance of $5,000. The buyers agreed to pay the remaining principal, with interest at the rate of 6 per cent per annum, as follows: $100 on November 1,1911; $200 on November 1, 1912; $300 on November 1, 1913; and $4,400 on November 1, 1916. The writing contains a stipulation that “any and all of the above payments are payable on or before the above dates,” so that the buyers could, if they wished, pay any installment before it matured. The purchasers obligated themselves to pay all taxes and assessments lawfully imposed on the property, and also agreed that “all improvements placed thereon shall remain and shall not be removed before final payment be made.” The Dressers and Yondell assigned their interest in the contract to Charles Heisner, who in turn transferred the agreement tú L. H. Heisner. The $100 installment due on November 1, 1911, and the one for $200 maturing on November 1, 1912, were paid.</p> <p>. This suit was commenced against the Dressers, Yon-dell, and the Heisners for the purpose of foreclosing the contract. The complaint filed on July 13, 1914, alleges that many of the improvements placed upon the premises have been removed, although the final payment has not been made, and “that no payments have been made on said contract, nor on the property therein described, except the November 1, 1911, payment, also the November 1, 1912, payment and all the interest on $4,700, the unpaid balance, up to the 9th day of February, A. D. 1913, and there is now due, owing, and unpaid on said contract * * the sum of $4,700, together with the interest thereon * * from and after the 9th day of February, A. D. 1913, and the further sum of $32.63, with interest thereon, for taxes paid by these plaintiffs. ’ ’</p> <p>' ; The Heisners answered. _</p> <p>The answer denies that “no payments have been made on said contract or on the property therein described except the November 1, 1911, payment and the November 1, 1912, payment,” denies that $4,700, together with interest from the 9th day of February, 1913, or the sum of $32.63, with interest thereon for taxes, or any other sum of money is due, and denies that the defendants failed to make the payments provided for in the contract. The answering defendants, after referring to the payment of the first two installments, affirmatively allege:</p> <p>“That $300 became dne and payable thereon on the 1st day of November, 1913, with 6 per cent per annum, that plaintiffs have received from the various named defendants described herein as payments upon said contract since the payment of the first $2,000 thereon the sum of $1,065, when in truth and in fact under the terms thereof only $600, and interest thereon amounting to about $95, and in all the sum of $695, have become due and payable under the terms thereof, and that the remaining payment of $4,400 does not become due and payable, nor the interest thereon, under tbe terms of said contract, until the 1st day of November, 1916.”</p> <p>The reply denies:</p> <p>“Each and every allegation, statement, matter and thing in said defendants ’ answer set forth, except such as is herein specifically admitted or qualified, and, as qualified, admitted.”</p> <p>The reply affirmatively sets fortli that subsequent to the payment of the $2,000 “ they did receive from various named defendants described in this suit certain sums of money, which these plaintiffs believe to aggregate” $1,006.64, and no more, “and that said sum was paid to them and received by them from the parties paying the same in payment and discharge of the following items of and in pursuance to the terms of said contract:</p> <p>The November 1, 1911, payment............$ 100.00</p> <p>Interest on said payment from July 9, 1910, to December 21, 1911, at 6 per cent........ 8.70</p> <p>Interest at 6 per cent on the unpaid balance of $4,900.00 from July 9, 1910, to July 9, 1911 ................................... 294.00</p> <p>Interest at 6 per cent on $294.00 from July 9, 1911, to December 21, 1911............... 8.94</p> <p>November 1, 1912, payment................ 200.00</p> <p>Interest at 6 per cent on $4,900.00 from July 9,1911, to November 1,1912.............. 392.00</p> <p>Excess of interest of $592.00 from the 1st day of November, 1912, to February 21, 1913 (day of last payments), over 6 per cent on $4,900.00 from November 1,1912, to November 9, 1912, agreed estimate.............. 3.00</p> <p>Total ................................$1,006.64</p> <p>“That said several sums of money were paid by said defendants to these plaintiffs with the express agreement and at the request of said defendants that they should be applied upon and to make the payments as above itemized, and not otherwise, and they were so made by these plaintiffs, and that such payments were voluntarily made by said defendants to these plaintiffs to be applied as herein specified.”</p> <p>The defendants moved “for a judgment of dismissal upon the pleadings, for the reason that no material issues are presented to the court to try, and the same show that the plaintiff is not entitled to the relief or any relief asked for therein.”</p> <p>Thei court dismissed the suit, and granted L. H. Heisner and Elizabeth Heisner a judgment for their costs and disbursements because it appeared to the court:</p> <p>‘ ‘ That said defendants have pleaded in their answer matter showing a complete defense to the complaint of plaintiffs therein, and that said plaintiffs have not denied the same and by reason thereof have shown that they are not entitled to the equitable relief sought by them in said suit.” ■</p> <p>The plaintiffs appealed.</p>

•From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Harris. Tbis suit was commenced by tbe First National Bank of Bandon for tbe purpose of setting aside a deed of assignment wbicb was made for tbe benefit of creditors. Tbe defendants C. A. Manassa and A. S. Manassa were partners doing business under tbe firm name of Manassa & Son, and on June 8, 1911, they executed a deed of assignment, for tbe benefit of tbeir creditors, to F. J. Feeney, as assignee.

<p>Appeal and Error—Appeal Undertaking—Sufficiency.</p> <p>1. An appeal undertaking not providing that appellant would pay all the damages, costs, and disbursements which might be awarded against him on appeal, as required by Section 551, L. O. It., was invalid.</p> <p>Appeal and Error—Undertakings—Amendment.</p> <p>2. Under the express provision of Section 550, subdivision 4, h. O. L., appellant, whose appeal undertaking by oversight omitted an essential provision would be allowed to file a sufficient undertaking.</p>

<p>Mandamus—Remedy at Law—Delivery of Property.</p> <p>1. Under Section 613, L. O. L., providing that mandamus shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law, the writ will not issue to compel a carrier which has transported specific articles consigned to the petitioner into the state and there refused to deliver them to petitioner to make delivery, since there is an adequate remedy by replevin in which under Sections 283-294, immediate delivery of the property can be had.</p> <p>Mandamus—Remedy at Law—Multiplicity of Suits.</p> <p>2. The fact that replevin could only affeet the particular shipment and that it would have to be repeated for each subsequent shipment, does not entitle petitioner to mandamus to avoid multiplicity of suits, since mandamus 'also could only require the delivery of the particular goods then on hand.</p> <p>Constitutional Law—Determination of Constitutional Questions— Necessity.</p> <p>3. On original proceedings in mandamus by a consignee against a carrier to compel the delivery to it of alcohol, in whieh the Attorney General appeared as a friend of the court, but where there .was an adequate remedy by replevin, the court will not determine the validity of Laws of 1915, page 150, regulating the importing of intoxicating liquors into the state.</p>

From Crook: T. E. J. Dueey, Judge. In Banc. Statement by Mr. Justice Eakin. This is a proceeding in mandamus by George H. Brewster against G. Springer, county judge, and J. F. Blanchard and H. J. Overturf, county commissioners, sitting for the transaction of county business, to compel them to allow certain claims presented by the water-master of Cook County for services rendered by himself and assistant in their official capacities.

<p>Pleading—Demurrer—Admission.</p> <p>1. In an action to enjoin defendant city’s improvement of a way and the enforcement of an assessment lien against the plaintiff’s premises, the averment of the complaint that the way was a public county road or highway would be taken as true on demurrer.</p> <p>Municipal Corporations—County Roads—Maintenance—Legislative Authority—“Street.”</p> <p>2. Although the laying out or opening of a rural road is under the jurisdiction of the County Court, or the laying out or maintenance of a city street is subject to the control of a common council, such highways subserving the easement of passage are within the control of the legislature, which has paramount authority over them, and may grant their supervision and control to some other governmental agency; so that a charter giving a city control of its “streets” does not authorize it to assume jurisdiction over a county road passing through its territory.</p> <p>[As to jurisdiction with respect to city streets as between city and county including city, see note in Ann. Cas. 1914A, 1051.]</p> <p>Municipal Corporations—Street or County Road—Determination.</p> <p>3. In determining whether a way in a city is a street or a county road, resort must be had to the intention of the legislature as gathered from the city charter, the general .laws, and the whole course of legislation on the subject.</p> <p>Municipal Corporations—Charter Powers—Construction.</p> <p>4. The courts will adopt a strict, rather than a liberal, construction of the charter powers of municipal corporations.</p> <p>Municipal Corporations—Powers—In General.</p> <p>5. Municipal corporations can exercise no powers but such as are expressly conferred upon them by the act by which they are incorporated, or are necessary to carry into effect the powers so conferred or essential to the objects and purposes of the legislature.</p> <p>Municipal Corporations—Charter Provisions—Control of Streets— County Road.</p> <p>6. Under Article XL, section 2, of the Constitution, providing that the legislature shall not enact, amend or repeal any charter giving the legal voters of every city, etc., power to enact their charter, subject to the Constitution and criminal laws, and in view of aet of February 24, 1903 (Lavs 19C(3, p. 262), providing a general seheme for the maintenance and control of county roads and highways in the state, declaring penalties for various violations thereof and in effeet a criminal law of the state, a municipal corporation incorporated by Laws of 1899, page 953, and authorized (Section 14, subds. 17, 21) to regulate the use of the streets, roads, and highways and to provide for the grading, repair and cleaning of streets, alleys, etc., and under the amendments by Special Laws of 1901, page 795, and Special Laws of 1903, page 63, given the same powers, and by its initiative charter, adopted February 28, 1912, given the same powers and additional power to grade, improve, and repair the highways, streets, avenues and alleys, to divide the city into street improvement districts, and to defray the expenses of improvements by special assessments, without other surrender of the legislative authority over county roads and rural highways, eould not by ordinance take jurisdiction over a county road passing through its territory.</p> <p>Highways—County Court—Vacation of County Road.</p> <p>7. Under Section 6278, L. O. L., providing that all county roads shall be under the supervision of the County Court and that no county road shall be vacated in any county exeept by authority of the County Court, and Section 6279, as amended by act of February 25, 1913 (Laws 1913, p. 296), providing that all applications for vacating county roads shall be by petition to the County Court, the County Court, being of limited jurisdiction, eould not relinquish its authority over a county road by its ex parte order on the exhibition of a certified copy of a city ordinance assuming jurisdiction over the county roads in the city.</p> <p>Highways—Legislative Control.</p> <p>8. The legislature may intrust the management and control of its highways to any subordinate municipality, but such municipalities cannot of their own motion usurp the control over any publie county road or highway.</p> <p>Municipal Corporations—Public Improvement—Assessment.</p> <p>9. A city, whose ordinance assuming jurisdiction over a county road passing through it was void, had no power to impose a special assessment upon an adjoining owner’s property to pay for its projected improvement, especially in view of the provision of its initiative charter limiting sueh assessments to the improvement of streets as distinguished from roads or highways.</p>

From Clackamas: James TJ. Campbell, Judge. Department 2. Statement by Mr. Justice Harris. Jessie E. Crim commenced a suit against John L. Crim to dissolve the marriage contract, resulting in a decree granting the plaintiff a divorce, with other relief, and also “that the plaintiff have and recover from the defendant the sum of $50 attorney’s fee.” The defendant appeals. In Banc. Statement by Mr. Justice Harris.

<p>Evidence—Judicial Notice—City and Town Charters.</p> <p>1. The courts of Oregon will not take judicial notice of initiative charters of cities and towns.</p> <p>[As to judicial notice of municipal ordinances, see note in Ann. Cas. 1914C, 1232.]</p> <p>Evidence—Presumptions—Continuance of Law.</p> <p>2. In an action against a city for personal injuries, where there is no averment or proof relative to whether an initiative charter has been adopted, it must be taken for granted that the eity charter remains in force as shown by the special laws of the year in which it was enacted.</p> <p>Municipal Corporations — Liability for Injuries — Supervision of Wharves.</p> <p>3. The mere fact that a city passed an ordinance providing for a waterfront committee, who should have general supervision and control of all wharves and docks within the city, to see that all laws, ordinances and regulations governing them were enforced, etc., did not render the municipality liable for damages resulting from the negligence of' the owner of a private wharf when a foot-passenger broke through a board.</p>

Prom Multnomah: John P. Kavanattgh, Judge. Department 2. Statement by Mr. Justice Harris.

<p>Municipal Corporations—Port—Taxation—'Validity—Statutes.</p> <p>1. Under Section 6121, subdivision 9, L. O. L., as amended by Laws of 1915, page 65, authorizing a port to levy taxes to carry out the purposes of its incorporation and to collect a special tax sufficient to pay the yearly interest on any outstanding bonds, together with any part' of the bonds maturing within such year, the levy of a special tax for 1916 when no outstanding bonds matured until 1923 to pay the interest on the bonds and to provide a sinking fund to pay the principal was invalid.</p> <p>Municipal Corporations—Port—Taxation—Validity—Budget.</p> <p>2. Such tax was also wholly invalid, in that it did not eomply with the budget law, as extended by Laws of 1915, page 297, to all corporate organizations having power to levy taxes, and making it unlawful to levy taxes without a previous estimate of the amount of money proposed to bn raised by taxation for the ensuing year, and providing for publication of the estimates and a notice of the time and place for a hearing thereon.</p> <p>Municipal Corporations—Port—Taxation—Time of Levy—Statutes.</p> <p>3. Section 6121, L. O. L., defines the powers exercisable by a port, and provides by subdivision 9, as re-enacted by Laws of 1915, page 65, without substantial change, that the levy shall be made in each year in time to be extended on the tax-rolls with the state and county tax to be collected for the following spring, not later than December 31st of each year. Section 3610, and Sections 3586, 3605, 3612, 3662-3664, as amended by Laws of 1913, page 325, and Sections 3669, 3682 as amended thereby and by Laws of 1915, pages 184, 405, require the assessor to prepare an assessment-roll before the second Monday in September, notice that the board of equalization will meet to correct errors in the roll on that day, and provides that when the assessment-roll is corrected it shall be returned to the county assessor; that the County Court shall at its December term in eaeh year levy all taxes which it is required to levy, and makes it the duty of eaeh public corporation authorized to levy a tax to notify the county clerk and assessor of the tax levy made by it on or before the first day in December of eaeh year. Held, that the legislative scheme for assessment and taxation contemplated that a port should levy its taxes on or before the first day of December in each year.</p> <p>Municipal Corporation—Port—Taxes—Delay in Levy—Effect.</p> <p>4. -Such provisions, not expressly prohibiting the making of a levy after December 1st, are not mandatory, but only directory; so that, where the taxpayers received notice of the tax proposed to be levied, and every step was taken which the law prescribes for their protection, and where the assessor still had possession of the assessment-roll on December 31st, so that he received notiee of the levy on December 30th in time to make an extension of the roll, before delivering it to the tax collector, the levy made on that date should have been extended to supersede a former invalid levy.</p> <p>Taxation—Correction of Boll—Statutes.</p> <p>5. Under Section 3678, L. O. L., as amended by Laws of 1913, page 333, providing that, whenever in the collection of taxes the officer having charge of the rolls shall discover errors, he may properly correct them to conform to the facts as may be necessary to make such assessment regular and valid, the sheriff, having an assessment-roll of an invalid port tax not extended by the assessor, might be required to extend a subsequent valid tax.</p>

From Multnomah: John P. Kavanaugh; Judge. Department 1. Statement by Mr. Justice Benson. This is an action by Harvey Pinder against I. Gr. Wickstrom for damages arising out of personal injuries received by plaintiff upon a collision of the motorcycle ridden by him with an automobile driven by defendant.

From Multnomah: Robert Gr. Morrow, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by the Carnahan Manufacturing Company, a corporation,, against the Beebe-Bowles Company, a corporation.

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by J. Brooks Haworth and G. 0. Haworth against Frank A. Jackson, Herman S. Burpee and E. R. Manning. In substance, the plaintiffs declare that they and the defendant Manning associated themselves together and purchased an auto truck contracting to pay $3,815 for the same.

From Washington: James IJ. Campbell, Judge. Department 2. Statement by Mr. Justice McBride. This is an action by B. M. Nordin against tbe Lovegren Lumber Company, a corporation, to recover damages for personal injuries sustained by plaintiff while employed in tbe logging operations of tbe defendant.

<p>Appeal and Error—Dismissal—Necessity of Undertaking.</p> <p>1. It was not ground for the dismissal of an appeal by the district attorney in a suit for divorce that he filed no undertaking; Section 578, L. O. L., expressly excusing the state from filing an undertaking.</p> <p>Appeal and Error—Appeal by District Attorney—Motion to Dismiss.</p> <p>2. On appeal by the district attorney in a divorce suit, the record did not show that he had been served with summons prior to the trial of the suit, or that he had appeared in the suit as required by Section 1020, L. O. L., as amended in 1911 (Laws 1911, p. 126), and plaintiff moved to dismiss the áppeal on the ground that the appellant had no authority to prosecute it. Held that, in view of the fact that the district attorney had not been served as required, and that the question was not here presented, a motion to dismiss would be overruled with leave to renew it on argument of the ease.</p> <p>Divorce—Proceedings—Appearance by State.</p> <p>3. Where in a divorce action the district attorney neither demurred nor answered, he did not make the state a party to the action under Section 542, L. O. L., providing that to plead or demur shall constitute an appearance.</p> <p>Divorce—Appearance—Answer—Effect of Filing.</p> <p>4. Section 1020, L. O. L., as amended by Laws of 1911, page 126, declares that in any suit for dissolution of the marriage contract, the state is to be deemed a party defendant, and the plaintiff shall cause the summons to be served on the district attorney or his deputy, and it shall be the duty of such district attorney, so far as may be necessary to prevent fraud or eollusiou in such suit, to control the proceedings on the part of the defense, and in ease the defendant does not defend in good faith, to make a defense on behalf of the state, and that the court shall not hear or determine any suit for divorce until service has been had or unless the district attorney or his duly appointed deputy waive the provisions of the section by appearing in person at the trial of the cause, or by written acknowledgment of service. No process in a divorce proceeding was served on the district attorney or his deputy, but the attorney appeared at the hearing before the referee. Held that, as the district attorney did not answer, demur or give notice of waiver of appearance, he was not a party to the action; his appearance before the referee not being an appearance before the court hearing the divorce suit.</p> <p>Divorce—Judgment—Right to Appeal.</p> <p>5. Where the state was not made a party to and did not appear in an action for divorce, as required by Section 1020, L. O. L., as amended by Laws of 1911, page 126, the state may appeal from the judgment of divorce, which is void as to it, for, the decree cannot, as to it, be classed as one for want of an answer described in Section 549, declaring that any party to a decree or judgment other than a judgment or decree given by confession or for want of an answer may appeal.</p> <p>Pleading—Complaint—Conclusions.</p> <p>6. A complaint, averring that the conduct of the defendant husband had amounted to continuous and willful desertion within the meaning of the statutes of the State of Oregon governing divoree proceedings, and which further averred that the spouses had lived separately for a space of a year, does not show a desertion for a period of one year, which, by Section 507, L. O. L., is made ground for a divorce; the averments relating to the desertion being conclusions of law.</p> <p>Divorce—Actions—Duty of District Attorney.</p> <p>7. As the state is, by Section 1020, L. O. L., as amended by Laws of 1911, page 126, made a party to an action for divorce, the district-attorney should, where the defendant malees no defense, urge any defense, as the failure of the complaint to state a cause of action, that can be made.</p>

From Multnomah: George N. Davis, Judge. This is a suit by Florence Johnson, formerly Florence Smith, against J. H. McKenzie for an accounting. From a decree in favor of defendant, plaintiff appeals. Department 1. In Banc. Statement on rehearing by Mr. Justice Burnett.

From Clatsop: James A. Eakin, Judge. Department 2. Statement by Me. Justice Eakin. This is a suit by Frank Fellman against Joseph Fellman. The facts are that on May 26,1904, Michael Meyer was the owner in fee simple of certain real property in the City of Astoria and on that day he conveyed the same to his nephew Joseph Fellman, reserving in himself a life estate. Excepting this reservation, the conveyance was absolute upon its face.

<p>Nuisance—Injunction—Injury.</p> <p>1. A mere tendency to injure is not sufficient to warrant equitable relief against an alleged nuisance, tbougb it is not necessary to a right of action that one should have been driven from his dwelling or habitation by the alleged nuisance, and a reasonable apprehension-of damage, or a danger which is apparent and real, as distinguished from an imaginary fear of injury from an alleged nuisance, may warrant equitable relief.</p> <p>[As to injunctive relief as affected by comparative injury to parties, see note in Ann Cas. 1913A, 248.]</p> <p>Injunction—Irreparable Injury.</p> <p>2. The infliction of irreparable injury, such as a court of equity will enjoin, includes also that degree of wrongs of a repeated or continuing kind, producing hurt, inconvenience or damage, whieh can be estimated only by conjecture, and not by any accurate standard of measurement.</p> <p>Eminent Domain—Restraining Condemnation—Nuisance—Conditions.</p> <p>3. In actions to condemn rights of way for an irrigating diteh, and in the owners’ suit in equity to enjoin the maintenance of such actions, where it appeared that the non-navigable creek from whieh the ditch was to take water received th'e sewage of several towns and the street litter of another, that in the dry season the pools of stagnant water became very offensive, and that the diteh, thpugh intended to be used only during the high-water stage of the creek, would, when dry, create offensive odors and an intolerable nuisance, the defendant would be restrained from condemnation, except on condition of conducting the water in suitable and safe pipes from the proposed intake to the diteh into whieh the water was to be discharged, and upon giving a bond to serve as indemnity, in addition to the awards to the owners, whieh on completion of the pipe-line might be canceled, and a new bond conditioned for its maintenance without further damage to the owners given.</p>

From Multnomah: John P. Kavanaugh, Judge. In Banc. Statement by Mb. Justice McBbide. This is a suit by W. A. Dailey, doing business as United Glass & Glazing Company, against Anna M. Cremen and others to foreclose a mechanic’s lien upon a certain building situated in Portland, Oregon. The plaintiff claimed a lien for labor and material furnished in the alteration and repair of the building.

<p>Gas—License “Tax.”</p> <p>1. "Where a eity provided by ordinance that every person or corporation furnishing gas should pay a “license” of 3 per cent of its gross receipts, confessedly a revenue measure, the imposition was a “tax,” however, characterized.</p> <p>Statutes—Repeal by Implication.</p> <p>2. The repeal by implication of a former by a latter act is not favored.</p> <p>[As to repeal of statute by implication, see note in 88 Am. St. Rep. 271.]</p> <p>Gas—Franchise Tax on Gas Producers—Validity—Statutes.</p> <p>3. Portland City Charter, Section 3, grants the city all governmental powers, except those expressly conferred on other public corporations. Section 73, subdivision 21, empowers the council to grant licenses to raise revenue, and to fix by ordinance the amount to be paid. An ordinance was enacted levying a “license tax” of 3 per cent of the gross receipts on all concerns selling gas. Section 3552, L. O. L., as amended by acts of 1913, includes within the terms “land, real estate, and real property” all franchises and privileges owned by any corporation, except the right to be a corporation. Title XXVIII, Chapter 8, L. O. L., embodying the general seheme -of state taxation, especially Section 3670, requires that all taxes levied by any municipality shall be imposed according to the value of the property shown by the last assessment-roll, that they shall be collected by the county collector at the rate declared by the eity, and the amount returned to the municipality. Defendant gas company refused to pay the “license tax” levied by ordinance, contending that under Section 3552 its franchise had been taxed as real property, so that the new exaction was double taxation, and that the procedure of Chapter 8 for the collection of municipal taxes was exclusive and the license ordinance invalid. Reid that the procedure of Chapter 8 referred only to assessable property to be taxed ad valorem, and did not treat of taxes on privileges independent of tangible property; that the legislation chartering the eity, enacted in 1903, should be construed with Section 3552, enacted in 1907, if possible, since repeals by implication are not favored; and that such section, relating only to tangible property, did not preclude the city from exacting the license tax under its charter.</p> <p>[As to constitutional limitations on power to impose license taxes, see note in 129 Am. St. Rep. 249.]</p> <p>Gas—license Tax on Gas Company—Validity—Statutes.</p> <p>4. Held, also, that, if the license tax were a burden on the property itself, it was nevertheless valid as a tax on defendant’s franchise to be a corporation as property, distinct from the franchise, such as the right ■to acquire property by eminent domain, exercised by the corporation as such, the franchise to be generally taxable as a privilege, also as property, while Section 3552, £. O. L., expressly excludes such franchise from the category of real property.</p> <p>Gas—License Tax on Gas Company—Validity—Statutes.</p> <p>5. Held, also, that the tax was valid as an occupation tax on all persons selling gas in the city, its object being confessedly to provide additional revenue, for a state or municipality may impose an ad valorem tax on property used in a calling and also impose a license tax as a condition to the right to carry on the pursuit.</p> <p>Municipal Corporations—Tax on Property—Gas Franchise.</p> <p>6. An ordinance of the City of Portland, operating under a legislative charter (Sp. Laws 1903, p. 3) requiring every person or corporation engaged in furnishing gas for commercial purposes to pay the city a license of 3 per cent of the_ gross receipts upon its business within the-city, could not be sustained as a tax on property, because the city could not levy a property tax for general purposes, except on the property and in the manner pointed out by general laws.</p> <p>Licenses—Franchise Tax-Validity—Charter.</p> <p>7. 'Such ordinance could not be upheld as a license, or as a tax on business, because it was not an exercise of the power conferred by the charter (Sp. Laws 1903, p. 29, § 73, subd. 21), empowering the council to grant licenses to raise revenue and to fix by ordinance the amount to be paid.</p> <p>Municipal Corporations—Tax—Constitutional and Statutory Provisions.</p> <p>8. The charter of the City of Portland (Sp. Laws 1903, p. 3), Section 3 of which granted the city all governmental powers except those expressly conferred on other public corporations, and Section 74 of which provided that the enumeration of particular powers should not be construed .to impair any general grant of power enacted when Article XI, Section 5, of the Constitution declared that acts of the legislative assembly incorporating cities should restrict their powers of taxation, and prior to the constitutional amendments, known as Section 2 of Article XI and Section la of Article IV, was not intended to vest a power of taxation at large, so that the city might reach out and assume the power to tax without limitations or restrictions.</p> <p>Municipal Corporations—Ordinance—Conformity to Charter—Local, Special and Municipal Legislation.</p> <p>9. Under Article IV, Section la, of the Constitution reserving to the voters of every municipality the initiative and referendum as to all local and special municipal legislation, and Article XI, Section 2, conferring upon a city the power to enact or amend its charter, subject to the Constitution, it is necessary for a city to trace its rights to legislate to some provision ef its charter; the words “loeal, special, and municipal legislation” not meaning that a municipality can legislate unto itself a poweT to legislate.</p>

<p>Eminent Domain—Use of Highways—Compensation of Abutting Owner—“Taking.”</p> <p>1. Section 3279, L. O. L., provides that when the County Court vacates a street, the land so dedicated to public use attaches to the lots bordering thereon, all right thereto vesting in the abutting owners. Article I, Section 18, of the Constitution provides that private property shall not be taken for public use without just compensation, nor except in case of the state without such compensation first assessed and tendered. Article XI, Section 4, provides that no person’s property shall be taken by any corporation under authority of law without compensation being first paid or secured. The city council authorized the building of a spur track along a street in front of plaintiff’s land at a distance of not less than 10 feet from his line, retaining power to regulate the use of the track. A railroad started building a track, a curve of which approached within 42 inches of plaintiff’s line, without making compensation. Held that the construction of the spur was a taking of private property prohibited by the Constitution, so as to require payment before construction, and not assessment only of damages thereafter.</p> <p>[As to right of abutting owner to enjoin railroad from laying traeks in street without making compensation, see note in Ann. Cas. 1913E, 874.]</p> <p>Licenses—Use of Streets—Nature of Purpose.</p> <p>2. While the right of a person to • drive a team or vehicle on a traveled street or haul by ordinary means his own goods thereon is common to all citizens, when he engages in the transportation of passengers or freight for hire, he is pursuing a special business, and the municipality may require the payment of a license fee for such use.</p> <p>Municipal Corporations—Use of Streets—Nature of Purpose.</p> <p>3. A city may, by ordinance, grant to a person the right to transact any business on the streets which, without such permission, might be regarded as a nuisance.</p> <p>Licenses—Use of Streets—Effect.</p> <p>4. The immunity conferred by municipal license to use the streets for transporting persons or goods for hire does not relieve the licensee from liability to an individual who sustains some special injury separate and distinct from that suffered by the public at large on account of such license.</p> <p>Eminent Domain—Use of Streets—Special Purposes—Damage to Property—Evidence.</p> <p>5. The excavation for constructing a spur track in a street abutting plaintiff’s property interfering with his ingress and egress and lessening the rental value of his property is a speeial injury on account of which equity will intervene and protect his rights.</p> <p>Eminent Domain—Nuisance—Private Nuisance—Locality—Effect.</p> <p>6. That plaintiff’s apartment house and dwelling were in a district devoted to commercial enterprises in which the use of spur switches was essential to successful operation does not affect his right to enjoin the nuisance of constructing railway tracks in the street passing his property or demand damages for sueh construction, but he could make such use of his own buildings as suited his convenience, unless he interfered with the public right.</p> <p>Eminent Domain—Damages—Evidence.</p> <p>7. To recover loss of rentals from abutting property caused by the construction of a spur switch, plaintiff, in an action for injunction, and damages, must show whether general business depression or the construction work decreased the rental value.</p>

From Klamath: George Nolan, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is an action by Henry C. Lemler against Rex E. Bord to recover money.

<p>From Multnomah; Robert G. Morrow, Judge.</p> <p>Department 1. Statement "by Mr. Justice Benson.</p> <p>This is an action by Thomas J. Wilson against the Investment Company, a corporation, E. Quackenbush and Alfred H. Faber upon an account stated, in which the complaint alleges substantially that between September 24,1908, and February 5,1910, plaintiff, at the special instance and request of defendants, furnished material and performed labor in painting, burlapping, tinting and varnishing a certain dwelling-house in Portland; that on or about January 10, 1910, an accounting was had wherein it was found that defendants were indebted to plaintiff in the sum of $325, which defendants promised to pay, and that no part thereof has been paid.</p> <p>The defendants E. Quackenbush and Investment Company filed an answer denying the allegations of the complaint, and defendant Faber made default. A trial was had, resulting in a verdict which reads as follows:</p> <p>• “We, the jury in the above-entitled case, find for the plaintiff and against the defendant in the sum of $325.”</p> <p>Thereafter a judgment was entered upon such verdict against all the defendants in accordance with the prayer of the complaint. The answering defendants appeal.</p>

<p>Appeal and Error—Dismissal of Appeal—Acceptance of Terms of Decree.</p> <p>1. Where, pending an appeal by defendant from a deeree canceling a contract for the sale of land, defendant conveyed the land by a warranty deed, covenanting that it was lawfully seised thereof in fee simple, the appeal would be dismissed, as it used and dealt with the land as though intended fully to accept and accede to the terms of the deeree, and would not be permitted to change the position:, which it had voluntarily assumed.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. Statement by Mr. Justice Benson.

<p>Elections—Presidential Primary Law—Ballots—“Candidate.”</p> <p>1. Under the presidential primary law (Laws 1915, p. 348), providing that the name of any “candidate” for a party nomination for President shall be printed on the party nominating ballot "upon the written request of such candidate” or “upon the petition of one thousand of his supporters,” the name of one so petitioned for is required to be placed upon the ballot even contrary to his wishes; the word “candidate” not being construed to mean one who seeks or runs for office.</p>

From Multnomah: John P. Kavanaugh, Judge. This is an action hy G. F. Tucker against I. G. Davidson, in which plaintiff recovered judgment and defendant appeals. Respondent moves to dismiss the appeal. In Banc.

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

<p>Estoppel—Of Depositor.</p> <p>1. Where the president of a bank made an unauthorized loan of the funds of a depositor, and the bank examiner wrote the depositor, asking her to sign and return the .inclosed release of liability to the bank, if she had authorized the president to withdraw her funds, the depositor’s failure to reply to such letter raised no estoppel against her relative to her claim against the bank.</p> <p>Banks and Banking—Action for Deposits—Evidence—Materiality.</p> <p>2. In a depositor’s action against her bank to recover funds, which the bank claimed she had authorized its president to lend for her, which he did, evidence of two witnesses that the depositor had had conversations with them in which she expressed a wish to dispose of the note representing the loan, and said she was willing to discount it, was admissible as tending to show ratification of the bank president’s action.</p>

From Douglas: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice Burnett. The plaintiff, S. A. Sanford, as the owner and holder thereof, brings this action in the usual form to recover upon a promissory note given by the defendant to the First National Bank of Roseburg.

From Multnomah.: George N. Davis, Judge. In Banc. Statement by Mr. Justice Harris. The plaintiff City of Portland, a municipal corporation, will be called the city, or the plaintiff, and the defendant Portland Railway, Light & Power Company, a private corporation, will be referred to as the company, or the defendant. All the facts appear in a complaint and answer.

From Marion: Percy R. Kelly, Judge. Department No. 2. Statement by Mr. Justice Bean. This is an action by the Vermont Farm Machine Company, a corporation, against Frank W. Hall, on a promissory note. The cause was tried before the court and a jury, and a general verdict rendered in favor of defendant. A judgment was entered accordingly, from which plaintiff appeals. The following is shown by the record: The note in suit bears date, January 2, 1913.

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Benson. This is an action by H. C. Gilbert and Arthur W. Fisher, partners, doing business under the firm name and style of Gilbert & Fisher, against John P. Sharkey. Plaintiffs base this action upon an express contract for the payment of money. The terms of the contract are of no importance in the discussion of the questions involved.

From Douglas: George F. Skipworth, Judge. In Bano. Statement by Mr. Justice Bean. This is an action by Mary T. Wells and Flora Wells for money deposited in the First National Bank of Boseburg, Oregon, a corporation. ' Plaintiffs had a verdict, and from a consequent judgment, defendant appeals.

From Douglas: James W. Hamilton, Judge. Department 2. Statement by Mr. Justice Bean. This is an action brought by J. D. Zurcher, plaintiff, against J. H. Booth for services performed in the capacity of a broker in selling for the defendant a tract of land in Douglas County, Oregon, known as the Alley tract. The cause was tried to the court and jury, and a verdict rendered in favor of plaintiff for $1,250, with interest which was remitted.

From Wallowa: John W. Knowles, Judge. In Banc. Statement by Mr. Justice Burnett. This is an action by C. R. Fones against C. Murdock to recover damages for malicious prosecution.

<p>Principal and Surety—Actions on Bonds—Limitation.</p> <p>1. Under an indemnity policy requiring immediate notice of aets of the employee probably involving loss-, elaim for loss immediately after discovery of loss, and any action within six months after presentation of elaim, where the company was advised by telegram of suicide of employee, and later advised by letter of amount of loss, the six months began to run from the date of the letter, not the telegram.</p> <p>Principal and Surety—Indemnity—Embezzlement—“Fraud.”</p> <p>2. In suit against a surety company on bond of city treasurer, who, the complaint charges, embezzled and stole city money, it is error to give the instruction, “Fraud is not pleaded by the plaintiff, and therefore you must disregard the same in the trial of this ease,” since fraud and dishonesty are synonymous terms.</p> <p>Principal and Surety—Bonds—Larceny or Embezzlement.</p> <p>3. Under Section 1957, L. O. L., as to conversion oí public moneys, the burden is upon an officer to account for such money in his care, and if he fails to do so, the animus fwrandi is inferable, and his acts are covered by a bond against his larceny or embezzlement.</p> <p>[As to acts for which sureties on bond of public officers are liable, see note in 91 Am. St. Rep. 497.]</p>

From Clatsop: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Burnett. The Bertin & Lepori corporation declares against N. Mattison, Martin Franciscovich and Paul Bakotich to the effect that they executed their promissory note whereby they agreed to pay the plaintiff a certain amount of money with interest and attorney’s fee; that the note has not been paid, and so much is due; and that a specified amount is a reasonable attorney’s fee.

<p>Subrogation—Principal and Surety.</p> <p>1. Where the surety pays a liability on the bond, it becomes subrogated to all the rights of the person indemnified.</p> <p>Banks and Banking—Duties of Bank—Wrongful Payment.</p> <p>2. Where a bank received deposits from one individual in his capacity as an individual and in his capacity as a guardian, it engaged to pay his checks only from the proper fund, and not indiscriminately from either.</p> <p>[As to deposits in bank in name of “trustee,” see note in 82 Am. St. Rep. 520.]</p> <p>Banks and Banking—Wrongful Payment—Liability.</p> <p>3. Since a bank must respond to the cheeks of the party with whom it contracts acting in the character he stipulates, it will be protected if it honors his cheek properly drawn, though it be on a trust fund, and he squanders the money, if it has no knowledge or notice of the character of the fund.</p> <p>Banks and Banking—Wrongful Payment—Liability.</p> <p>4. Where a bank received deposits from one man as an individual and as guardian, and he later closed his individual account, and the bank thereafter honored his individual checks, charging them against the guardianship fund, it was liable to the surety on his bond which paid the amount of the defalcation for the amount of the fund paid out on individual cheeks.</p>

From Jackson: Frank M. Calkins, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by John Minter against R. R. Minter to establish, settle and dissolve a partnership. The parties are brothers. It is stated in the complaint and admitted by the answer that their uncle devised to them, as tenants in common, about 200 acres of land in Jackson County and certain personal property.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Burnett.

From Multnomah: Robert G. Morrow, Judge. Department 1. Statement by Mr. Justice Benson. This is an action by George Hinkel against the Oregon Chair Company, a Corporation, to recover damages for the loss of the sight of an eye.

From Multnomah: John P. Kavanaugh, Judge. In Banc. Statement by Mr. Justice Harris. Elizabeth French is prosecuting this action in an attempt to recover on two life insurance policies which had been issued to her husband, James M. French, now deceased, by Columbia Life & Trust Company, a life insurance company. The first policy is dated March 11, 1912. The insured is James M. French.

From Multnomah: Robert Gr. Morrow, Judge. Department 2. Statement by Mr. Justice Harris. L. L. Paulson commenced this action to recover $6,500 which he paid to F. 0. Weeks for 11,250 shares of the capital stock of the Big Hill Coal Mining Company, an Oregon corporation. The plaintiff has appealed from a judgment which was entered for the defendant after a demurrer to the amended complaint had been sustained and the plaintiff had refused to plead further.

<p>Quieting Title—Complaint—Sufficiency.</p> <p>1. In a suit to quiet title, it is sufficient to allege that the defendant claims an estate or interest in the property adverse to the plaintiff, and call upon him to assert the nature and character of such estate or interest.</p> <p>Courts—“Record.”—V erity.</p> <p>2. The “records” of a court of justice import absolute verity and cannot be eontradieted.</p> <p>[As to levy of attachment as subject to collateral attack, see note in Ann. Cas. 1913C, 146.]</p> <p>Attachment—Affidavit—Sufficiency.</p> <p>3. An affidavit for attachment, which states the ultimate faets required by statute is sufficient, and need not allege the probative facts out of which the indebtedness arose.</p> <p>Attachment—Affidavit—Sufficiency.</p> <p>4. An affidavit for attachment, stating that the indebtedness arose upon express contracts for the direct payment of money, that the contracts were promissory notes for definite amounts, that the said sums are an actual, bona fide, existing debt due and owing from defendants to plaintiffs, held sufficient.</p> <p>Attachment—Writ—Time of Issuance.</p> <p>5. Under Section 295, L. O. L., providing that “the plaintiff at the time of issuing the summons or any time afterward may have the property of the defendant attached,” a writ of attachment issued before issuance of the summons is a nullity.</p> <p>Attachment—“Issued.”</p> <p>6. A writ of attachment is not “issued” until plaeed in the hands of the officer for execution.</p> <p>Attachment—Writ—Time of Issuance.</p> <p>7. A writ of attachment was signed by the clerk, but not delivered to the sheriff until the following day at which time the summons was also placed in the sheriff’s hands. Held, that the writ was valid against the objection that it issued prior to issuance of the summons.</p> <p>Quieting Title—Answer—Description of Property.</p> <p>8. In an action to quiet title, an answer, setting forth any description by which the property may be identified by a competent surveyor with reasonable certainty, either with or without extrinsie evidence, is sufficient.</p> <p>Quieting Title—Answer—Description of Property.</p> <p>9. In an action to quiet title, the complaint described the land as “the south half of block one. * * ” The answer alleged that this description covered the same land which defendant had attached and which in the writ was described as “lots 3, 4, 5, and 6, in block 1. * * ” Eeld, that the answer was good on demurrer.</p>

<p>Evidence—Judicial Notice—Initiative Charters.</p> <p>1. Courts will not judicially notiee initiative charters of cities and towns1.</p> <p>[As to judicial notice of municipal ordinances, see note in Ann. Cas. 1914C, 1232.]</p> <p>Appeal and Error—Scope of Review—Presumptions.</p> <p>2. Although the record does not affirmatively show an amended city charter to have been introduced in evidence, the cause will be reviewed on the theory that it was introduced, where the ease was so tried below.</p> <p>Appeal and Error—Scope of Review—Presumptions.</p> <p>3. Where no motion for nonsuit was made on account of lack of proof, it will be presumed on appeal that an objection to evidence ran to the character, and not the guantvm thereof.</p> <p>Municitsal Corporations — Streets — Public Improvements — Notice — Adequacy.</p> <p>4. A notice of proposed paving particularly describing the improvement and informing all persons interested that the cost would be assessed against abutting property is adequate.</p> <p>Municipal Corporations — Streets — Public Improvements — Notice — Adequacy.</p> <p>5. Evidence held to show due publication of an adequate notice of a proposed street improvement.</p> <p>Municipal Corporations—Streets—Public Improvements—Ordinances —Adequacy.</p> <p>6. Since Willamina Charter, Section 65, provides that each abutting lot shall be assessed a full half of the cost of street improvements, an ordinance for paving is valid, though its body does not state that,the cost will be assessed against the property benefited; the owners having been notified thereof by the improvement notice and being presumed to know the charter provisions.</p> <p>Municipal Corporations—Public Improvements—Be Facto Engineer— Reports.</p> <p>7. Where the city and the paving contractor selected a de facto city engineer as arbitrator in their contract, his reports were admissible in suit for work performed, though they were signed as city engineer, and the city was without power to appoint an engineer.</p> <p>Municipal Corporations—Public Improvements—Duties of Council.</p> <p>8. Since by Willamina Charter, Section 39, the city recorder is clerk of the council and must file all papers presented to him for that purpose, where contractors presented reports showing completion of work, and they were filed, the duty of the council was to act thereon, and neglect to act for seven months rendered the city liable for the contract price of the work.</p> <p>Municipal Corporations—Public Improvements—Payment.</p> <p>9. When the expense incurred for the improvement of a city street is to be paid from a special fund to be obtained by an assessment on the property benefited, a neglect of the municipality to comply with any requirements of the charter, essential to secure such fund, or any unreasonable delay in enforcing such provisions of the fundamental law of the city, or a failure to collect or pay over the money within a reasonable time, renders the municipality liable in damages for the cost of the improvement.</p> <p>Municipal Corporations—Public Improvements—Actions—Pleading —Sufficiency.</p> <p>10. Where an improvement contract made an engineer sole arbiter as to completion, and his reports showing completion were not assailed by the city, its answer denying liability failed to state a defense, and verdict for the contractor might be directed and the city’s evidence rejected.</p> <p>Appeal and Error—Mandate on Appeal—Restitution.</p> <p>11. Where a contractor held dishonored city warrants for an improvement, he could be required to return them as a condition precedent to entry of mandate affirming a judgment in his favor for damages for failure to assess the cost and provide a fund to pay the warrants.</p>

<p>Appeal and Error—Decisions Appealable.</p> <p>1. As a general rule, an order setting aside a default is of an intermediate character and not appealable, though it may be reviewed on appeal from the final judgment or decree.</p> <p>[As to what judgments and orders may be appealed from, see note in 20 Am. St. Rep. 173.]</p> <p>Appeal and Error—Motion to Dismiss.</p> <p>2. On motion to dismiss an appeal from an order opening a default, the merits of the order cannot be considered, therefore, where appellant, conceding, the general rule that such orders are not appealable, contended that the order was a nullity and appealable, a motion to dismiss the appeal will be denied, with permission to renew on final hearing, nothing remaining to be done except for respondent to file a brief.</p> <p>Appeal and Error—Abstract of Record—Dismissal.</p> <p>• 3. Where, through an honest mistake in calculating the time, appellant failed to file an abstract of the record within 20 days after transcript was filed, as required , by court Rule VI (56 Or. 616, 117 Pac. ix), the appeal will not be dismissed; the hearing not being delayed.</p> <p>Appeal and Error—Decisions Reviewable—“Final Order.”</p> <p>4. Under Section 548, L. O. L., providing that appeals may be had from an order affecting a substantial right, and which in effect determines the action or a final order affecting a substantial right, an order of the court under Section 3710, L. O. L., providing that any defendant against whom judgment h'as been rendered, and who has not been personally served, and who has not appeared therein, may, upon good cause shown, be allowed to defend and file his objections within one year after the entry thereof, vacating a final decree of foreclosure in a suit to foreclose a certificate of delinquency of taxes in which service was had on the plaintiff by publication and permitting him to answer, was an intermediate order, and not appealable unless void.</p> <p>Judgment—Parties—-Subject Matter—“Void Judgment.”</p> <p>5. In a suit to foreclose a certificate of delinquency of taxes, an order vacating a final decree of foreclosure against the defendant after service by publication and permitting him to answer, the court having jurisdiction of the parties and subject matter, is not void, although it may be erroneous.</p>

From Lane: James W. Hamilton, Judge. Department 2. Statement by Mr. Justice Benson. This is an action by Luther B. Hudson against the Brown Lumber Company, a corporation, for damages for personal injuries.

<p>Divorce—Grounds—Sufficiency.</p> <p>1. Where the plaintiff husband’s conduct toward his wife is insufficient to justify her separation from him, and her conduct is insufficient to justify his separation from and refusal to live with her, but merely showed that by childish and inconsiderate bickering they had become mutually estranged and preferred not to live together, a decree of divorce will not be granted.</p> <p>[As to cruelty as ground for divorce, see notes in 51 Am. Bep. 736; 65 Am. St. Bep. 69.]</p>

<p>Corporations—Agents—Authority.</p> <p>1. Where a corporation did not clothe its agent with the written authority required by Section 808, subdivision 7, L. 0. L., declaring that a contract by an agent for the sale of land shall be void unless in writing, and did not grant the agent permission in any way to contract for the sale of its land, one contracting for purchase of land from the corporate agent is bound at his peril to ascertain the agent’s authority.</p> <p>[As to necessity that agent have written authority to make memorandum required by statute of frauds, see note in Ann. Cas. 1912B, 1295.]</p> <p>Corporations—Agents—Authority.</p> <p>2. One contracting to purchase land with a corporate agent with knowledge that the agent was not authorized to sell, cannot enforce the contract against the corporation.</p> <p>Corporations—Agents—Ratification, of Contract.</p> <p>3. Where a corporate agent without authority attempted to contract to sell land belonging to the corporation, and when notified the officers of the corporation disavowed the unauthorized sale, the fact that the purchaser allowed the corporation to retain the money, though the agent offered to return it, did not effect a ratification of the contract.</p>

From Union: John W. Knowles, Judge. In Banc. Statement by Mr. Justice Bean. This is an action by O. P. Dahlstrom, as administrator of the estate of John A. Landberg, deceased, for money had and received.

From Malheur: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Benson.

<p>Contracts—Actions for Breach—Pleading—Complaint.</p> <p>1. Where a contract is definite, certain, free from ambiguity, it is to be construed according to the common meaning of the words used.</p> <p>Customs and Usages—Varying Contract.</p> <p>2. Where a contract is free from ambiguity, a custom or usage inconsistent with its terms cannot be interposed to contradict or qualify its provisions, the terms of the contract being evidence of an intention to avoid the effect of such usage or custom.</p> <p>[As to admissibility of evidence of peculiar significance of word in locality where instrument was executed, see note in Ann. Cas. 1916C, 655.]</p> <p>Customs and Usages—Effect on Contracts.</p> <p>3. It is for the court to determine to what extent, if any, a custom or usage relied upon shall modify or control a contract.</p> <p>Customs and Usages—Varying Sale Contract.</p> <p>4. In an action on a contract for sale of wheat, it not being alleged that there was an agreement that the plaintiff would not enforce the contract, but merely that there was a false representation by its agent that it would not exact the delivery, all oral negotiations or stipulations preceding or accompanying the execution of written agreement being merely merged in it, no contradiction of its legal effeet by parol stipulations, preceding or accompanying its execution, are admissible.</p> <p>Pleading—Admissions—Effect.</p> <p>5. In an action on a contract for the sale of wheat, where the answer affirmatively admits the execution of the instrument set forth, it is not a mere admission of the signing of the paper, but that such an agreement as the plaintiff alleges to have been made was in fact executed.</p> <p>Contracts—Actions for Breach—Grounds—Fraud.</p> <p>6. A written agreement, based on a consideration, cannot be questioned in a law action for alleged fraud or deceit affecting its execution, except upon a denial of its execution amounting to a plea of non est factxim, or, if it is an unsealed instrument, non assumpsit, since the admission by the plaintiff of the execution of the instrument will bind him.</p> <p>Evidence—Fraud—Specialty.</p> <p>7. It is not competent for a defendant, in an action at law on a specialty, to plead that the instrument was obtained by false representations.</p> <p>Evidence—Fraud—Execution of Contract.</p> <p>8. Where a defendant’s signature was obtained to an instrument he did not intend to sign, and the fraud or deeeit affects the execution thereof, the fraud can be alleged at law.</p> <p>Evidence—Admissions—Effect.</p> <p>9. In an action on a contract for the sale of wheat, where the defendant alleged fraud in obtaining the instrument, and that he relied on a representation of the plaintiff’s agent that the terms of the writing would not be enforced, his statement that, prior to the signing of the alleged agreement, the agent falsely represented that if the defendant did not raise the 3,000 sacks stated, the plaintiff would not exact the delivery amounts to an admission that he knew the provision binding him to deliver 3,000 saeks was embraced in the agreement..</p> <p>Pleading—Construction—Ambiguity.</p> <p>10. In construing a pleading in a case of doubt, when considered on demurrer, that construction should be given to the language which is most favorable to the opposite party and against the pleader.</p> <p>Pleading—Fraud—Showing Facts.</p> <p>11. When fraud is relied upon, facts showing it must he clearly alleged.</p> <p>Sales—Actions for Breach—Pleading Defenses.</p> <p>12. In an aetion at law on a contract for the sale of wheat, where the defendant admitted the execution of the instrument, and alleged fraud in reducing the contract to writing, in that he agreed to deliver all wheat grown with certain deductions for feed and seed, while plaintiff’s agent secured his signature to an agreement to deliver a stated amount, telling him that the plaintiff would not exact delivery of the full amount if he did not raise it, the answer did not contain sufficient facts to constitute a defense to the action of law, or justify a conclusion of fraud on the part of the plaintiff.</p> <p>Reformation of Instruments—Mutual Mistake—Remedy.</p> <p>13. Where mutual mistake is made in the framing of a contract, and no fraud appears, the remedy, if any, is by a suit to reform the written instrument.</p> <p>Principal and Agent—Pleading—Contract by Agent.</p> <p>14. In an action on a contract for the sale of wheat, an answer, setting up a release or modification of the contract made by certain persons alleged to have been agents of the plaintiff, which contained no allegation that they were general agents of the plaintiff, or that they had authority to make such release or modification, or that the plaintiff knew of the proceeding, was insufficient.</p> <p>Principal and Agent—Action—Pleading.</p> <p>15. In an action by or against a principal, on contracts executed through his agent, the contract may be declared on, either as having been made by the principal or by him through an agent.</p> <p>Sales—Actions for Breach—Defenses.</p> <p>16. In an action on a contract for the sale of wheat, an answer, alleging a release or modification of the contract made by persons alleged to have been agents of the plaintiff, being in the nature of an accentuation of another claim that the contract was other than as written, was not sufficient as a defense in itself.</p>

From Douglas: James W. Hamilton, Judge. • In Bane. Statement by Mr. Justice McBride. . This is an action by William J. Carlon against the First National Bank of Rosebnrg, Oregon, a corporation, to recover the sum of $1,350, which the complainant claims as the balance of a deposit made by him in the defendant bank.

From Douglas: James W. Hamilton, Judge. In Banc. Statement by Mr. Justice Harris. This action is prosecuted, by Laura M. Yerrell for the purpose of recovering $5,000, which, she deposited with the First National Bank of Roseburg. The verdict of the jury was for the plaintiff, and the defendant appealed from the resultant judgment.

From Union: John W. Knowles, Judge. In Bane. Statement by Mr. Justice Benson. In February, 1916, Will Hamilton was indicted upon a charge of illegally selling intoxicating liquor on January 24,1916. On February 14,1916, he was tried by a jury, who returned a verdict of acquittal. Under the provisions of Section 34, Chapter 141, of the Laws of 1915, plaintiff appeals. No Final Order Made.

From Hood Biver: William L. Bradshaw, Judge. 1? In Banc. Statement Per Curiam. This is a suit by the Oregon Lumber Company, a corporation, against the East Fork Irrigation District, a corporation. The facts are as follows: The plaintiff is a corporation doing business in this state in the manufacture of lumber at its sawmill in Hood Biver County. The defendant is an irrigation district organized under Title XLI, Chapter 7, L. 0.

From Baker: Gustav Anderson, Judge. In Banc. Statement by Mr. Justice McBride.

<p>Judgment—Conelusiveness—Identity of Questions Involved.</p> <p>1. The decree in a suit to test the validity of a city election, at which the city charter was amended to authorize the common council to construct a railroad from the city to a specified point, and to contract for the construction thereof, was not res adjudicata in a subsequent suit to caneel contracts entered into by the city which were not executed until after the first suit was instituted and were mentioned therein only in a general way.</p> <p>Judgment—Conclusiveness—Matters Concluded.</p> <p>2. Where a ease was decided upon demurrer to the complaint, the decree was not res adjudicaba in a subsequent suit wherein different facts were alleged, issues made up, and testimony taken.</p> <p>Municipal Corporations—Powers of Common Council—Construction of Charter.</p> <p>3. An amendment to a city charter authorized the common council to construct a standard gauge “railroad” from the city to a specified point which should be a common carrier for both freight and passenger service, and for that purpose, to issue and sell bonds, and directed the council to contract for the construction thereof, and to lease the railroad upon such terms and for such periods as to it might seem for the best interests of the city. Held, that this contemplated a public utility, or a complete railroad to be owned by the city, and did not contemplate the owning or leasing by the city of a part of a railroad for the whole distance, or all of it for a portion of the distance.</p> <p>Municipal Corporations—Fiscal Management—Loaning Credit to Private Parties.</p> <p>4. Article XI, Section 9, of the Constitution, provides that no municipal corporation shall become a stockholder or raise money for, or loan its credit to or in aid of any company, corporation or association. An amendment to a city’s charter authorized the council to construct a railroad which should be a common carrier, and for that purpose to issue and sell bonds in a sum not exceeding $300,000, and directed the council to contract for the construction of the railroad and to lease it. The council made a contract with a railroad company and a lumber company whereby, in consideration of the construction of the railroad by the railroad company, the city agreed to pay $300,000 in money or bonds, procure the right of way, and lease the road to the railroad company. The contract provided for payment for each mile of road completed and bound the railroad company to furnish all material for operation, maintenance and repair. The lumber corporation agreed to equip a sawmill for operation. The railroad company was given the option to purchase the city’s interest subject to the city’s right, on notice, to sell to other parties, in which case, any sum realized above the cost, and any deficit in operating or maintaining the road was to be divided, and the lumber company’s rights were to be guarded, and it was to have the right to use the railroad. Held, that the transaction violated the Constitution and was not authorized by the charter.</p> <p>Municipal Corporations—Fiscal Management—Loaning Credit to Private Parties.</p> <p>5. The option given the railroad company to purchase the eity’s interest for $300,000 at any time within sixty years, though the interest for 60 years would be treble that amount, showed that the city was attempting to raise money for, or loan its credit to or in aid of the corporations.</p> <p>Municipal Corporations—Fiscal Management—Loaning Credit to Private Parties.</p> <p>6. The funds of a municipality are for public purposes, and there is an inherent condition attached to all publie utilities constructed at the expense or on the credit of a municipality that they shall be public in their character.</p> <p>Municipal Corporations—Constitutionality of Contracts—Favor • of Electorate.</p> <p>7. In determining the constitutionality of contracts made by a eity for the construction of a railroad, the court cannot notice the fact that many of the voters of the eity are for, and only a few against, the contracts; the Constitution being a shield with which any citizen may ward off any attempted invasion of his rights, regardless of the numbers interested.</p> <p>[As to remedies of taxpayer for illegal corporate acts, see note in 2 Am. St. Rep. 92.]</p>

Original proceeding in Supreme Court. In Banc. Statement by Mr. Justice Burnett. It seems from tbe petition that tbe Central Oregon Irrigation Company Water Users’ Association has preferred a complaint of some sort to the Public Service Commission against tbe petitioner.

From Coos: John S. Coke, Judge. In Banc. Statement by Mb. Chief Justice Mooee. This is a civil contempt proceeding instituted in the Circuit Court for Coos County by the State of Oregon, upon the relation of Bertha 0. Stillwell, against John B. Stillwell, to punish him for an alleged disobedience of a decree of that court.

<p>Wills—Probate—Sufficiency of Evidence—Unsound of Mind.</p> <p>1. Evidence on a proceeding for the probate of a will contested by the surviving husband of the decedent on the ground that she was not of sound mind when it was executed, held to show that the will was the product of disease and delusion, and not the deliberate act of a person capable of intelligently selecting the objects of her bounty.</p> <p>[As to insane delusion with respect to relative as affecting testamentary capacity, see note in Ann. Cas. 1916C, 4.]</p>

From G-rant: Dalton Biggs, Judge. In Banc. Statement by Mr. Chief Justice Moore. This is a suit by B. Danby, Albert Harper and A. J. Fletcher to enjoin the Starlight Irrigation District and others from the assignment and payments of warrants issued by the district to Michael Spears, and to cancel such orders. Decree for defendants dismissing the suit, and plaintiffs appeal. Reversed, and decree entered canceling all of the warrants given in evidence.

<p>Witnesses—Examination—Refreshing Memory—Memoranda.</p> <p>1. Plaintiff, who sued for work and labor performed and goods furnished, should have been permitted to refresh his memory as to the value thereof .by reference to memoranda on which totals of the amounts were entered by his wife at his direction at the time itemized statements were rendered defendant, under Section 859, L. O. L., providing that a witness may refresh his memory by anything written by himself or at his direction at the time when the fact oeeurred, or immediately thereafter, or when the fact was fresh in his memory and he knew the writing' to be correct, and that the writing be produced for inspection and cross-examination.</p> <p>Appeal and Error—Scope of Review—Harmless Error.</p> <p>2. Where the eourt admitted such memoranda as original evidence instead of íot the purpose of refreshing witness’ memory, such admission was technical error without prejudice to defendant, where plaintiff was cross-examined as to them and they accomplished only the purpose of refreshing his memory.</p> <p>Frauds, Statute of—What Contracts must be Written—Leaseholds— Less Than Year.</p> <p>3. Under the statute of frauds (Section 808, subd. 6, L. O. L.), making void unless in writing leaseholds in realty for periods longer than one year, relinquishment of leaseholds for the period of one year need not be in writing.</p> <p>Frauds, Statute of—What Contracts must be Written—Executed Contract.</p> <p>i. Where a contract to relinquish a leasehold for the period of one year, though not in writing, was wholly executed, defendant could not rely on the statute of frauds to defeat payment he agreed to make for the relinquishment; the statute seldom being applied to executed contracts.</p> <p>Contracts—-Impossibility of Performance—Liability.</p> <p>5. Where defendant employed plaintiff to do certain work for a stipulated sum, and, when the work was partially done, sold the land on which it was to be performed and rendered it impossible to complete the contract, he was liable for the reasonable value of the work already done.</p> <p>Work and Labor—-Compensation—Reasonable Value—Burden of Proof.</p> <p>6. In such case, where plaintiff elected to sue for such reasonable value, the burden was on him to introduce testimony tending to show what the reasonable value was.</p> <p>Appeal and Error—Scope of Review—Modification of Verdict.</p> <p>7. Under amended Constitution, Artiele VII, Section 3, providing what judgments may be rendered on appeal, and authorizing retrial on appeal under certain circumstances according to the rules of equity and rendition of the judgment which should have been rendered below, where recovery was had at a stipulated sum without reference or proof as to its reasonable value for work and labor performed when it should have been the reasonable value, and defendant claims an agreement to pay a lump sum for the work performed, the recovery will be reduced to the amount of the claimed agreement, the case being small, all the evidence being before the court.</p> <p>Trial—Instructions—Details of Accounts.</p> <p>8. It is not necessary for the court to instruct that certain items of a long account were admitted, where it would require perusal of the testimony to verify the instruction, the jury being presumed to be as capable of remembering and understanding the testimony as the judge.</p>

From Lane: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit by Samuel L. Bond and others against James Ellison to cancel a conveyance of a quarter-section of timber land from plaintiff to tbe Bellingham Development Company, and a mortgage executed by the last-named company to James Ellison.

<p>Fraudulent Conveyances—Sales in Bulk—Waiver of Eight to Void Sale—Statute.</p> <p>1. Where the creditor of sellers of a drug-store, the bulk sales statute (Section 6069, L. O. L.), not having been strictly complied with because the statement furnished the purchaser was not under oath and not given at least five days before the purchase, when notified of the sale in effect consented by saying he would look wholly to the sellers for payment of his account, and waited for two years before making any move to repudiate such approval and void sale, such creditor waived the right to elaim the benefits of the statute.</p> <p>Fraudulent Conveyances—Sales in Bulk—Liability of Buyer.</p> <p>2. The creditor of the sellers of a drug-store, entitled to the benefit of the bulk sales statute, can hold the buyer liable only for such property as was embraced by the statute at the time of the sale.</p> <p>Fraudulent Conveyances—Sales in Bulk—Garnishment—Burden of Proof—Judgment.</p> <p>3. Under Section 320, L. O. L., limiting the liability of a garnishee to money, value of the property of the debtor in his hands, in garnishment proceedings against the buyer by the creditor of the sellers of a drug-store, where it was admitted that the buyer paid $1,600 for fixtures and stock, but there was nothing to indicate the value of either, so that the value of the stoek could not be determined, but the Bulk Sales Act, under which the creditor claimed, did not apply at the time of the sale to fixtures, but only to stock, judgment for the creditor for $224.05 could not stand.</p> <p>[As to remedies of creditor for violation of bulk sales law, see note in Ann. Cas. 1916C, 928.]</p>

From Multnomah: Calvin IT. Gantenbein, Judge. Department 2. Statement by Mr. Justice Bean. The defendant, J. C. Jacobson, was prosecuted and convicted for a violation of Section 6 of Chapter 272 of the General Laws of Oregon for 1915, and appeals.

<p>Appeal and Error—Restitution Undertaking—Premature Filing-Statute.</p> <p>1. An undertaking for restitution on appeal, under Section 553, L. O. L., must be filed within ten days from the time the appeal is perfected by giving or service of notice of appeal, and is prematurely filed before beginning of the ten-day period.</p> <p>Appeal and Error—Scheme of Appeals—Compliance With Statute.</p> <p>2. One who would avail himself of the provisions of the statutory scheme of appeals, undertakings, counter undertakings, justification of sureties and the like, must comply with its terms.</p> <p>Appeal and Error—Undertakings on Appeal—Operation—Statutes.</p> <p>3. An undertaking on appeal, or counter undertaking for restitution, under Sections 550, 553, L. O. L., filed in time, operates from the day of its filing, subject to the condition that it may be defeated on failure of the sureties to justify as against exception to their sufficiency, the obligation being only provisionally effective for the designed purpose until the question raised to the financial ability of the sureties is settled.</p> <p>Appeal and Error—Restitution Undertaking—Filing of Supersedeas Bond—Statute.</p> <p>4. A restitution undertaking on appeal, filed by plaintiff respondent under Section 553, L. O. L., at the time he issued execution and before appellant’s supersedeas bond had been filed,.was ineffective as not filed within the prescribed time and because there was nothing calling for its issue.</p> <p>Appeal and Error—Supersedeas Bond—Effect.</p> <p>5. In the absence of objections to a supersedeas bond, filed after entry of decree foreclosing a title bond given by plaintiff to defendant, it was effective at the time of sale of the property, and operated to prevent it.</p> <p>Appeal and Error—Restitution Bond—Time—Statute.</p> <p>6. Plaintiff brought action to foreclose a title bond, and the land was sold with direction for the application of the proceeds, and defendant appealed and filed a supersedeas bond. Plaintiff, without waiting for the lapse of time for excepting to the surety, filed a purported restitution bond under Section 553, L. O. L., and, tbougb defendant excepted to tbe sufficiency of the sureties, plaintiff at once directed tbe sale of the property, and, after confirmation, was put in possession by a writ of assistance, but on appeal it was held that the restitution bond had been prematurely filed. Section 550, subdivison 4, L. O. L., provides that after the time allowed to except to sureties in the supersedeas bond expires the appeal shall be deemed perfected, and Section 553 provides for the filing of a restitution bond within ten days after the appeal is perfected. Reid, that after the expiration of the time for resisting the supersedeas bond, plaintiff could not be allowed to file a substituted restitution bond.</p>

<p>Pleading—Admissions—Failure to Deny.</p> <p>1. A failure to deny can be held as an admission only of such matter as is well pleaded.</p> <p>Ejectment—Pleading—Sufficiency.</p> <p>2. In ejectment for property sold under execution to wbicb plaintiff had received a sheriff’s deed, an answer to a cross-complaint alleging that plaintiff commenced an action against a third person, but not alleging any service of summons or other means of acquiring jurisdiction, or whether the judgment was obtained in that action or another, or that judgment was duly given or made in that proceeding, 'or whether the execution issued upon a judgment in favor of the plaintiff or against the defendant therein, whether the sheriff’s sale was by virtue of that execution or another, or by some different precept, and not alleging a confirmation of the sale, and alleging that the intervener claiming to be the beneficial owner knew that the defendant therein had represented that she was the owner of the property, and so obtained a credit upon her note to the plaintiff, but not showing whether intervener acquired such knowledge before or after the loan was made, was insufficient to show in detail all the steps in plaintiff’s acquisition of title to the land.</p> <p>Pleading—Fact or Conclusion.</p> <p>3. In such answer an allegation that defendants and the intervener “have fraudulently conspired to divest plaintiff of her rights in and to said property” was only a conclusion of law; there being no facts stated upon which a charge of fraud could be based.</p> <p>Execution—Sale—Confirmation.</p> <p>4. An execution sale must be confirmed before a deed can issue. Execution—Property Subject.</p> <p>5. Where intervener in ejectment showed that he had paid all the purchase price for the property and that the execution debtor had only the bare title without any beneficial interest, there was no interest of the defendant liable to the satisfaction of the judgment, since it is only the actual interest of a judgment debtor in realty that is liable thereto.</p> <p>Appeal and Error—Review—Questions of Fact.</p> <p>6. In the absence of any testimony in the record before it, the Supreme Court on appeal cannot overturn the trial court’s findings upon controverted facts, but must accept them as a correct determination of the dispute to which they refer.</p> <p>Parties—Defect of Parties—Demurrer—Waiver.</p> <p>7. Defect, if any, in not making a party the execution debtor under sale against whom the plaintiff in ejectment claimed, appearing on the face of the pleadings, could have been presented by demurrer in default of which it was waived.</p> <p>Estoppel—Claim Under Execution Sale—Defect of Parties.</p> <p>8. In such action plaintiff could not raise the objection that the execution debtor was not made a party, where plaintiff was before the court claiming to have succeeded to all the rights of such parties in the premises by virtue of the execution.</p> <p>[As to right of purchaser at execution sale, when land is claimed to have been conveyed in fraud of creditors, to recover possession in ejectment, see note in Ann. Cas. 1914C, 975.]</p>