Volume 84 — Oregon Reports

<p>Landlord and Tenant — Rent—Holding Over.</p> <p>1. Where a lessee held over after expiration of a five year lease, he was liable for rent as a tenant from year to year, in absence of proof that such holding over was merely pending negotiations for readjustment of the rent.</p> <p>[As to when tenant is guilty of holding over, see note in 70 Am. St. Rep. 533.]</p> <p>ON PETITION POE REHEARING.</p> <p>Appeal and Error — Findings—Relnanding Cause for New Trial.</p> <p>2. Where some of the findings made by the Circuit Court were indefinite and a failure to make any findings on other issues involved will preclude the appellate court from entering a judgment, the cause win be remanded for a new trial.</p>

<p>From Linn: William Galloway, Judge.</p> <p>Department 1. Statement by Mr. Justice Harris.</p> <p>The plaintiff Alfred Todd appealed from a judgment quashing an alternative writ of mandamus wbicb directed tbe defendant Dennis Cormier as mayor of the City of Lebanon either to sign a warrant for $75 on the city treasurer or to show cause for not signing it. Alfred Todd, who was city attorney, rendered legal services to the City of Lebanon in connection with the issuance of $10,000 of street improvement bonds and $42,000 of refunding bonds; and he also advised and assisted in the preparation of certain necessary transcripts of the proceedings authorizing the bonds. In April, 1915, the plaintiff presented a bill to the city council containing a charge of $25 for “extra services” rendered in the issuance of the street improvement bonds and another item of $50 for “extra services in refunding bond matter.” The bill was allowed by the council and the recorder then drew, signed and delivered to the plaintiff, a warrant on the city treasurer for the sum of $75 payable to the order of Alfred Todd. The plaintiff then presented the warrant to the defendant and requested that he sign it as mayor, but the latter refused to do so, and this proceeding was then commenced for the purpose of compelling the defendant to sign the warrant.</p> <p>The answer to the writ contains two defenses: (1) That the mayor is not required to sign warrants on the city treasurer; and (2) that the warrant was illegal for the reason that the annual salary paid to the city attorney was full payment for the services rendered by the plaintiff and the council was without authority to allow any compensation in addition to the amount of the annual salary.</p>

<p>Shipping — Loss of Goods by Carrier — Trial—Election Between Defenses.</p> <p>1. In action against a carrier by water for loss of goods, refusal to require defendant’s election between defenses that damage was caused by negligence of colliding dredge and by dangers of navigation, etc., is not erroneous, where motion was made after jury had been impaneled.</p> <p>Shipping — Liability of Carrier — Limitation—Dangers of Navigation and Unavoidable Accident.</p> <p>2. A carrier by water may, by contract, exempt itself from liability for loss occurring from “dangers of navigation” or “unavoidable accident.”</p> <p>Shipping — Liability of Carrier — Limitation—Construction—“Act of God.”</p> <p>3. Provisions in a carrier’s contract, exempting it from loss to goods due to “dangers of navigation” and “unavoidable accident,” are broader than term “act of God,” and excuse it where a collision occurred without its fault.</p> <p>Shipping — Carriers—Loss of Goods — Jury Question.</p> <p>4. Where a carrier’s contract exempted it from loss due to “dangers of navigation” and “unavoidable accident,” it is a jury question whether the loss so occurred without negligence on the carrier’s part.</p> <p>Shipping — Carriers—Loss of Goods — Burden of Proof.</p> <p>5. A defendant carrier by water whose contract exempted it from loss due to dangers of navigation or unavoidable accident has the burden of showing the loss so occurred without negligence on its part.</p> <p>Shipping — Carriers—Loss of Goods — Admissibility of Evidence.</p> <p>6. Where defendant carrier claimed goods intrusted to it were lost by dangers of navigation or unavoidable accident, evidence regarding a recent change in the position of a dredge it collided with and an unexpected rise in the river, was admissible.</p> <p>Shipping — Carriers—Loss of Goods — Instructions.</p> <p>7. In action against a carrier by water for loss of goods, requested instructions that defendant was not excused if loss was caused by certain water conditions were* properly refused because not including defense based upon negligence of a colliding dredge.</p> <p>Shipping — Carriers—Loss of Goods — Instructions.</p> <p>8. In action against a carrier by water for loss of goods, an instruction that defendant was not liable -for loss caused by an unexpected rise in the river, ete., is erroneous, where there was no evidence to support such theory.</p> <p>Appeal and Error — Harmless Error — Instructions.</p> <p>9. An erroneous instruction that defendant carrier by water was not liable for loss occasioned by sudden change in water conditions is harmless, where plaintiff’s failure of proof prevented recovery in any event.</p> <p>[As to liability of carrier for loss of goods occasioned partly iby act of God, and partly by other means, see note in 97 Am. Dec. 409.]</p> <p>Shipping — Carriers—Loss of Goods — Failure of Proof.</p> <p>10. Where plaintiff declares upon the common-law liability of defendant common carrier, but the shipment was made under a written contract containing material restrictions upon its liability, there is a failure of proof preventing recovery.</p> <p>Appeal and Error — Necessity of Decision.</p> <p>11. It is unnecessary to consider plaintiff’s assignment of error concerning a restriction on argument of counsel, where plaintiff’s failure of proof prevented recovery in any event.</p> <p>ON PETITION EOB REHEABING.</p> <p>Appeal and Error — Determination—Bemand for Amendment — Failure of Proof.</p> <p>12. Sections 97-99, L. O. L., relating to curing variances by amendment, but providing that failure of proof is not a variance, does not authorize remanding a ease with permission to amend, where plaintiff entirely failed to prove his allegations.</p> <p>Appeal and Error — Modification of Judgment — Failure of Proof.</p> <p>13. Where plaintiff’s failure of proof merited a nonsuit below, a judgment for defendant will be modified to one of nonsuit, although plaintiff resisted a nonsuit motion in the court below.</p>

From Multnomah: Calvin U, G-antenbein, Judge. Department 1. Statement by Mb. Justice Habéis. This is an action to recover part of a deposit given by a lessee to a lessor as security for the payment of rent.

From Multnomah: .Calvin U. Gantenbein, Judge. Action by Bertha M. Crowder against Yanto Y. Yovovich. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded. Department 2. Statement by Mb. Chief Justice McBbide. This is a suit to recover damages for deceit in the sale of lands.

<p>Schools and School Districts — District Expenses — Statutory Construction.</p> <p>1. Under General Laws 1915, page 331, Section 4, providing that cost of educating a high school pupil be fixed by dividing the cost of maintaining the schools by the average daily attendance, etc., interest items paid on debt incurred for construction of the sehool cannot be included in the maintenance charges.</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>Edward Eeimers and Eva Eeimers, his wife, commenced this action against T. F. Brennan and Blanche Brennan, his wife, to recover damages. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>•This is an action to recover damages for alleged fraudulent representations in an exchange of real properties. The jury returned a verdict in favor of the defendants upon which a judgment of dismissal was entered, and plaintiffs appeal.</p> <p>It appears that in August, 1913, the plaintiffs were the owners of a 200-acre ranch in Douglas County, Oregon, worth $9,000 they claim, which they traded to the defendants for lot 22, block L, Greenway’s Addition to Portland, Oregon, facing on two streets, upon which was situated a double flat building and a bungalow. They claim that the defendants’ property was not worth over $5,355.55, and that it was traded to them on the basis of a valuation of $13,000, while their real estate was taken in exchange at $9,000, leaving a difference of $4,000, for which they executed to defendants a mortgage upon the Portland realty. The evidence shows that after some preliminary negotiations conducted by correspondence, plaintiff Eeimers went to Portland and made a careful examination of the Brennan property. He also called upon a Mr. Meves, a restaurant-man of his acquaintance, and discussed with him the desirability and value of defendants’ premises. Mr. Meves referred him to a Mr. Lofgren, an attorney, whom he consulted with reference to Portland values, and particularly in regard to the worth of the defendants’ property. He also investigated one or two other propositions offered in exchange for his farm. He informed the Brennans that Mrs. Eeimers would come to Portland in a few days and inspect the premises, which she did. In the meantime Mr. Brennan visited the Eoseburg ranch and an exchange as stated was thereupon effected upon the basis mentioned. After the exchange the Brennans went into possession of- the farm and the Eeimers took possession of the city property. No complaint was made by the plaintiffs to the defendants for nearly a year after the deal, when this action was filed.</p>

<p>Reformation of Instruments — Complaint.</p> <p>1. In action to reform an instrument, the complaint must distinctly allege what the original agreement of the parties was, and clearly and precisely point out wherein there was a misunderstanding, that the mistake was mutual and did not arise from the gross negligence of the plaintiff, or that his misconception originated in the fraud of the defendant.</p> <p>Reformation of Instruments — Mutuality of Mistake.</p> <p>2. That an instrument does not express the intent of one of the parties, but does conform to that of the other, does not warrant its reformation, since a contrary rule would destroy the principle of mutuality of contract.</p> <p>Reformation of Instruments — Evidence—Sufficiency.</p> <p>3. In an action for reformation of an instrument, the testimony as to the real contract intended between parties must be clear and convincing, and, if it is at an equal balance either as to what the agreement was or as to the mutuality of the mistake, reformation will not be allowed.</p> <p>Reformation of Instruments — Evidence — Sufficiency—Insurance Policy.</p> <p>4. In suit to reform and recover upon an insurance policy, evidence held not sufficient to show mistake by the insurance company in writing the policy.</p> <p>Reformation of Instruments — Grounds—Waiver of Policy Conditions.</p> <p>5. In suit to reform an insurance policy, waiver of the conditions of the policy as to change of ownership by failure of the company to inquire about the ownership was not available; such ground of recovery being available only in an action at law on the policy.</p> <p>[As to causes and proceedings for reformation of instruments, see note in 65 Am. St. Rep. 481.]</p> <p>Insurance — Conditions—W aiver.</p> <p>6. Under Standard Policy Law (Title XXXIV, Chapter 6, L. O. L.), Sections 4666, 4668, as amended by Laws of 1911, page 279, the statutory conditions as to ownership of insured property cannot be waived except in the manner provided in statute itself, which must be in writing attached to or upon the faee of the policy.</p>

<p>From Multnomah: Lawrence T. Harris, Judge.</p> <p>Action by H. D. Hamilton against the North Pacific Steamship Company, a corporation. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.</p> <p>Department 1. Statement by Mr. Justice MoCamant.</p> <p>This is an action brought to recover damages for a personal injury sustained by plaintiff on June 21,1912. Plaintiff suffered the injuries complained of while working for the defendant on the steamship “Roanoke” and while the steamship was on the high seas. The pleadings admit that the “Roanoke” at the time in question was owned and operated by the defendant, and that the defendant is a corporation organized and existing under the laws of the State of California. This action was brought on the twenty-second day of November, 1913, more than one year after, plaintiff sustained his injuries. The defendant pleads the statute of limitations of the State of California as a defense, and offered to prove on the trial that under the California Code such an action as this must be brought within one year from the accrual of the cause of action. The offer of proof was excluded by the lower court. The Oregon statute of limitations permits such an action as this to be brought at any time within two years after the accrual of the cause of action : Section 8, L. O. L. A verdict was rendered for plaintiff, on which judgment was entered, and the defendant appeals. Reversed and Remanded.</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 2. Statement by Mr. Justice Harris.</p> <p>This is a suit to foreclose a claim of lien for labor and material. H. W. Hegele was a doctor and occupied office rooms over a theatre in a building in Portland known as the Empress Theatre Building and owned by the Empress Theatre Company. Hegele caused the Oregon Art Tile Company, a corporation, to place tiling on the floors and a part way up tbe partitions of some of tbe rooms so that they could be used for different kinds of baths employed by Hegele in his practice. Most of the work was done pursuant to a contract which fixed $830 as the price to be paid, but in addition to this the Oregon Art Tile Company performed extra work which the plaintiff claims was reasonably worth $95.75. Hegele paid only $350, and on September 10, 1914, the Oregon Art Tile Company filed a claim of lien for $575.75 on the “Empress Theatre Building constructed upon lots three (3) and four (4) and the east half of lots five (5) and six (6) and the west half of lot six (6), block two hundred and eleven (211)” in Portland.</p> <p>The complaint in this suit alleges' that the Oregon Art Tile Company contracted with H. W. Hegele “for doing the repair and construction work and furnishing the material therefor in and to a certain portion” of the Empress Theatre Building “which said portion is more particularly known and described as the offices of the said H. W. Hegele”; and, further, that “at the special instance and request of the said defendant, H. W. Hegele, during the progress of said work, plaintiff performed extra labor in and upon the said Empress Theatre Building and more particularly in the defendant, H. W. Hegele’s, offices within the said building, and furnished extra material not called for in said contract, to be used in and which was used in the alteration, repair and construction of the said offices of defendant, H. W. Hegele, within the said building”; that “the contract price for said alteration, repair and construction work” upon the offices was $830 and that the “reasonable value of said extra material and labor” is $95.75; that no payments except $350 have been made and that a balance of $575.75 is due; that “on the 10th day of September, 1914, and within sixty days from the completion of the said work, labor and material performed in and upon said Empress Theatre Building” the plaintiff filed a claim of lien, a copy of which was attached to and made a part of the complaint.</p> <p>The defendants H. W. Hegele and the Empress Theatre Company filed a joint demurrer alleging that the complaint did not state facts sufficient to constitute a cause of suit. The demurrer was overruled and the defendants then filed a joint answer denying “every allegation” of the complaint and averring, as a separate defense, that the labor performed and materials furnished by plaintiff “are of such inferior character and so carelessly and negligently performed that the same were and are worthless, and plaintiff is not entitled to recover compensation therefor. ’ ’</p> <p>At the ensuing trial which occurred on October 14, 1915, the defendants declined to offer any evidence, but, when the plaintiff rested, the defendants contented themselves by orally moving for a dismissal of the suit for certain specified reasons. This oral motion was supplemented on October 23, 1915, by a written motion to dismiss which sets forth in detail all the reasons then assigned and now relied upon by the defendants for a dismissal. Subsequently on December 9, 1915, the court signed a judgment “against H. W. Hegele and the Empress Theatre Company” for a specified sum and a decree foreclosing the lien “upon the real property” already described “including the building situated thereon.” Both defendants appealed.</p>

<p>Death — Actions for Death — Right of Administrator to Sue.</p> <p>1. Employers’ Liability Aet (Laws 1911, p. 17), Seetion 4, provides that, on loss of life by negligence, the widow of the person killed, Ms lineal heirs or adopted children, or the husband, mother or father, as the case may be, shall have a right of action. Seetion 380, L. O. L., provides that in case of wrongful death the personal representatives of decedent may maintain an action at law therefor. Held, that where an employee, having no kin as named in Section 4 of Employers’ Liability Act, is billed, though the administrator cannot recover under such section, he can recover under Section 380, L. O. L.</p> <p>[As to actions for causing death, see note in 70 Am. St. Rep. 669.]</p> <p>Master and Servant — Employers’ Liability Act — When Operative.</p> <p>2. The Employers’ Liability Act is not applicable to eases wherein the rights of the parties are determinable by maritime law.</p>

<p>Courts — Appeal from County Court to Circuit Court — Time for Filing Transcript.</p> <p>1. Section 554, L. O. L., requiring filing of transcript within 30 days after perfecting appeal, is mandatory, and, on appeal from the County to the Circuit Court, all opportunity to confer jurisdiction upon the Circuit Court passes with the lapse of this 30 days without any extension of time granted before its end.</p> <p>Courts — Time of Appeal — County Court to Circuit Court — Nunc Pro Tunc Order.</p> <p>2. Where on appeal from County to Circuit Court transcript is not filed, as required by Section 554, L. O. L., within 30 days from perfecting appeal, the Circuit Court has no power to order that the transcript be filed as of a date within the expired 30 days; the sole purpose of nunc pro tunc order being to make the record speak the truth, never to falsify it.</p> <p>Courts — Appeal from County Court to Circuit Court — Vacation of Judgment.</p> <p>3. An appeal from the County to the Circuit Court having been dismissed for failure to file transcript in time, the Circuit Court could not at a subsequent term, without showing of appellant’s mistake, inadvertence or excusable neglect, reinstate the cause for trial, for no court has appellate jurisdiction over its own decrees, and after the term at which a decree is entered the court’s power over the decree is restricted to making the record conform to. the actual truth of what was done at term time.</p>

<p>Master and Servant — Negligence—Injuries to Servant — Employers’ Liability Act — Contributory Negligence.</p> <p>1. In a servant’s action for injuries, a complaint, alleging that.defendant employed plaintiff as a farm laborer and directed him to go to the second story of a barn for the purpose of assisting in throwing down hay, negligently failing to warn him that there was a hole in the floor of the second story or to guard such hole, and that owing to darkness and insufficiency of lantern light the plaintiff fell through such hole and was injured, stated a cause of action within the purview of the Employers’ Liability Act (Laws 1911, p. 16); and hence, under the direct provisions of Section 6 of the act, contributory negligence of plaintiff was not a defense, but could only be taken into account by the jury in fixing the amount of damages.</p> <p>Master and Servant — Injuries to Servant — Employers? liability Act— Question for Jury.</p> <p>2. Tbe question whether plaintiff’s employment was one of risk or danger, and henee under the Employers’ Liability Act, which involves the consideration of the conditions under which the work was to be performed as well as the class of employment, held for the jury under proper instructions.</p> <p>Master and Servant — Injury to Servant — Employers’ liability Act— Sufficiency of Evidence.</p> <p>3. Evidence held sufficient to go to the jury on the hypothesis that plaintiff was in the loft pursuant to the direction of the defendant, that he was ignorant of the hole, and that he could not see it owing to the darkness and insufficiency of the lantern light.</p> <p>[As to what statutes are impliedly repealed by State Employers’ Liability Act, see note in Ann. Cas. 1916E, 773.]</p>

<p>Appeal and Error — Review—Findings.</p> <p>1. On appeal in a proceeding at law, the findings of the trial court as to the facts are conclusive.</p> <p>Statutes — Construction—Adoption of Statute.</p> <p>2. When a statute of another state is adopted and enacted, it must he deemed to have been passed subject to the interpretation given it by the courts of the state of its origin.</p> <p>Trusts — Bond of Trustee — Relief from Liability — Showing of Misconduct — Statute.</p> <p>3. Under Section 685, L. O. L., providing that a surety upon the bond of any executor or other fiduciary may apply by petition to the court wherein the bond is directed to be filed, etc., praying to be relieved from further liability as surety, etc., the surety on the bond of trustees under a will was not entitled to be relieved of further liability upon its arbitrary demand to be relieved, without showing any fault, dereliction or misconduct on the part of its principals.</p> <p>[As to discharge of surety for causes existing prior to his entering upon contract of suretyship, see note in 63 Am. St. Rep. 327.]</p>

From Multnomah.: George N. Davis, Judge. Emma G. Robinson commenced this suit against Grant Phegley and from a decree rendered in favor of defendant dismissing the suit on demurrer, the plaintiff appeals. Reversed with directions. In Banc. Statement by Me. Justice McCamant. This is a suit brought to rescind two contracts entered into between the parties in the year 1907, under which plaintiff alleges that she paid the defendant $9,600.

From Multnomah: Henry E. McGinn, Judge. This is a suit against the Gerlinger Motor Oar Company, a corporation, brought by M. Hetrick and W. M. Cline, copartners in business under the firm name and style of Hetrick & Cline, and heard by the lower court sitting in equity to a jury that returned a verdict in favor of plaintiffs, and defendant appeals. Affirmed. Rehearing denied Department 1. Statement by Mr. Justice McCamant.

From Marion: William Galloway, Judge. Department 1. Statement by Me. Justice Haréis. Alice McCoy is prosecuting this suit in an attempt to enjoin E. A. Thompson from inclosing and occupying a strip of land 40 feet in width, which the latter claims to own and the former asserts is a street. The controversy arises out of the platting of an addition to the unincorporated town of Mill City.

From Marion: William Galloway, Judge. Department 2. Statement by Mr. Justice Moore. This is a suit by Leila Knighton against Joseph W. Chamberlin and Rose W. Chamberlin, his mother, L. 0.

From Multnomah: George N. Davis, Judge. Action by W. I. Swank against A. Battaglia, in which plaintiff obtained a judgment and defendant appeals. Reversed. Judgment rendered. In Banc. Statement by Mr. Chief Justice McBride. This is an action to recover the purchase price of 100 sacks of potatoes sold to the defendant at the agreed price of $1.13 a sack.

From Columbia: James A. Eakin, Judge. This is an action by James L. Sumpter against the St. Helens Creosoting Company, a corporation, for labor. From a directed verdict in favor of plaintiff, defendant appeals. Reversed. Judgment entered for defendant. In Banc. Statement by Mr. Justice Benson. In the month of April, 1915, plaintiff began this action to recover the sum of $163.12% claimed to be due for labor.

<p>Schools and School Districts — Contract With Teacher — Transfer— Authority of Board — Statute.</p> <p>1. Laws of 1913, page 69, Section 1, empowers the board of directors of every school district to hire and discharge teachers and to fix their compensation. Section 2 provides that the word “teacher” shall include supervisors and principals and instructors who are in the employ of the school district. Section 4 provides that teachers who have been regularly employed for not less than two successive annual terms shall be placed on the list of permanently employed teachers. Section 5 provides that permanently employed teachers shall not be subject to annual appointment, but shall continue to serve until dismissed in the manner therein provided, and that they shall serve in such positions and be subject to such assignments and transfer as the board may from time to time determine. Section 6 provides that before any permanently employed teacher can be dismissed notice must be given containing the charges against the teacher and a hearing had thereon if the teacher so requests. Held, that the transfer of a teacher who had been acting as principal to another school where she was an instructor merely was not a dismissal of the teacher, and was within the discretion of the board without a necessity for notiee and hearing on charges.</p> <p>Officers — Employment of Teacher — “Office.”</p> <p>2. A teacher permanently employed under Laws 1913, page 70, Section 4, does not hold an office, since the statute refers to it as an employment, and Article XV, Section 2, of the Constitution, prohibits the legislature from creating any office the tenure of which shall be longer than four years.</p> <p>[As to school officer or teacher as municipal officer, see note in Ann. Cas. 1914D, 1236.]</p> <p>Mandamus — Subjects of Relief — Restoration to Office.</p> <p>3. Where an officer has been removed and another appointed to perform the work, mandamus is not the proper remedy of the discharged officer, since quo warranto is the proper method for trying title to an office.</p> <p>Mandamus — Issues—Competency of Teacher — Transfer.</p> <p>4. In mandamus proceedings to compel a school board to restore a teacher to her former position as principal, where the transfer of the teacher was within the board’s discretion, the court cannot consider whether her services as principal were satisfactory.</p>

Prom Multnomah: Robert Gr. Morrow, Judge. Suit by Albert Courts, doing business as the Peerless Tire & Rubber Company, against T. E. Clark and Mitchell, Lewis & Staver Company, a corporation, to foreclose a lien for repair work performed upon an automobile. There was a decree in accordance with the prayer of the complaint and defendants appeal. Department 2. Statement by Mr. Justice Moore. This is a suit to foreclose an alleged automobile repairer’s lien.

<p>From Marion: William Galloway, Judge.</p> <p>This is a suit by Daniel J. Fry and Nettie E. Fry to quiet title against the City of Salem, and to free plaintiff’s property from an alleged illegal assessment and lien for a street improvement. From a decree in favor of plaintiffs, the city appeals.</p> <p>Department 1. Statement by Mr. Justice Bean.</p> <p>This is a suit to quiet title involving the validity of an assessment upon the plaintiffs’ property for a street improvement. From a decree in favor of plaintiffs, defendant city appeals.</p> <p>The following proceedings appear from the record: On April 1, 1912, the common council of the City of Salem, Oregon, a municipal corporation, adopted resolution No. 781, directing the city engineer to prepare plans, specifications and estimates for the improvement of South High Street from the south line of Mill Street to the south line of Bush Street, for more than two kinds of appropriate improvements, at least one of which was to be of a nonpatentable kind; and to estimate the probable cost of each class of improvement. On the same date the city engineer as directed filed with the city recorder plans, specifications and estimates for the improvement mentioned, which were approved by the city council by resolution No. 805, adopted by it on April 8,1912, in which it declared its purpose and intention of making the said improvement, determined the portion of the street to be improved, and authorized and directed the recorder to give notice by publication for not less than five successive days in a daily newspaper published in the city, inviting bids for making the improvement. About April 12,1912, the city recorder caused a notice as directed by the council to be published for six successive days in the “Daily Oregon Statesman,” a daily newspaper of general circulation, published in the City of Salem. The notice is set forth in the record. On April 22d, bids were received by the city and filed with the recorder, among which was one by Montague-0 ’Reilly Company proposing to make the improvement according to the plans and specifications adopted and on file, for the total estimated sum of $18,746.95. On April 29th the council adopted resolution No. 828, which in so far as deemed material to the issues is here set down:</p> <p>“Be it Resolved by the Mayor and Common Council of the City of Salem, Oregon. * * Section 2. That the council deems it expedient and proposes to improve South High Street from the south line of Mill Street to the south line of Bush Street with El Oso pavement, at the expense of the abutting and adjacent property within the said limits, said improvement to be made in ' accordance with • the plans and specifications adopted for such improvement and on file in the office of the city recorder. Section 3. That the recorder be and he is hereby authorized and directed to publish for ten (10) days in some daily newspaper published in the city of Salem, Oregon, the. following notice:</p> <p>“ ‘Notice is hereby given that the common council of the city of Salem, Oregon, deems it expedient and proposes to improve South High Street from the south line of Mill Street to the south line of Bush Street with El Oso pavement at the expense of the adjacent and abutting property within said limits, in accordance with the plans, specifications and estimates for the improvement of said South High Street from the south line of Mill Street to the south line of Bush Street as heretofore adopted by the common council and on file in the office of the city recorder which are hereby referred to for a more particular and detailed description of said improvement, and are hereby made a part of this notice. Written remonstrances against the improvement proposed herein may be made at any time within ten (10) days from the final publication of this notice in the manner provided by the city charter. This notice is published for ten (10) days pursuant to a resolution of the common council and the date of the first publication thereof is the-day of-, 1912, and the date of the final publication will be the-day of-, 1912. * *</p> <p>About the 1st of May the recorder caused a certain notice of intention to improve a portion of South High Street to be published in the “Daily Oregon Statesman,” reading thus:</p> <p>“Defendant’s Exhibit ‘C.’ Notice is hereby given that the common council of the city of Salem, Oregon, deems it expedient and proposes to improve South High Street from the south line of Mill Greek to the south line of Bush Street with El Oso pavement at the expense of the adjacent and abutting property within said limits, in accordance with the plans, * * [the remainder of the notice being in conformance with the resolution of the council].</p> <p>“Chas. F. Elgin, City Recorder.”</p> <p>Thereafter a contract was entered into between the city and the Montague-0’Reilly Company for making the improvement and the work was commenced and prosecuted to completion. After the required notice the council adopted Ordinance No. 1306, assessing the share of the cost of the improvement against adjacent property, which assessment was docketed as a Ken upon the respective abutting lots.</p>

From Marion: William Galloway, Judge. This is a suit by Juliet Lord and Montague Lord against the City of Salem, Chas. F. Elgin, City Recorder, and Frank Shedeck to remove a penumbra from plaintiff’s title caused by the levying of an alleged illegal assessment for certain street improvements against their property. From a decree favoring plaintiffs, the defendants appeal. Department 1.

From Marion: William: Galloway, Judge. This is a suit in which Helen F. Carson, administratrix of the estate of John A. Carson, deceased, was substituted as plaintiff instead of John A. Carson against the City of Salem to quiet title. From a decree in favor of plaintiff, defendant city appeals. Department 1.

<p>From Polk: Harry H. Belt, Judge.</p> <p>Suit to enjoin the improvement of Main Street in the City of Independence, a municipal corporation, in which James S. Hart and others, as plaintiffs, were successful and the city appeals.</p> <p>Department 1. Statement by Mr. Chief Justice McBride.</p> <p>This is a suit to enjoin the defendant from improving Main Street in the City of Independence, which street is also sometimes called the Salem-Independence County road, in accordance with a recent resurvey of said street by which defendant claims that it runs over and includes portions of certain lots owned and occupied by plaintiffs.</p> <p>The complaint alleges that the highway has been used and traveled by the public in its present location for more than forty years; that it is a legal county road under the exclusive jurisdiction of the County Court of Polk County, and never has been a street within the jurisdiction of the municipality of the City of Independence; that plaintiffs are the owners of certain lots abutting on said highway and that they and their grantors have been in the peaceable, undisturbed, continuous and adverse possession of these said premises for more than forty years; that they have been using said premises for residence purposes only for more than twenty years last past, and that there are now standing thereon dwelling-houses and many fruit and ornamental trees which greatly enhance the value of their property; that upon the line between their lots and said highway as it has been used for more than twenty years last past there have been fences erected and maintained thereon for that length of time, and that said fences and residences have been constructed with reference to the county road and highway as it is now traveled and used. Then follow allegations that the city threatens to improve said highway as a street by assuming that the street line extends over and upon the premises of plaintiff to their great and irreparable damage, the nature of which is fully set forth.</p> <p>The defendants after formal denials of the existence of the highway as claimed by plaintiffs answered alleging the dedication of the town plat by one E. A. Thorp in November, 1850, and the recording of said plat in 1879, and the incorporation of the City of Independence. It was then alleged that Main Street in the City of Independence was one of the streets shown on said plat and included the lands claimed by plaintiffs; that by virtue of certain ordinances passed by the city it was proceeding to improve said Main Street, that the defendants were wrongfully maintaining fences therein, and that the lands claimed by plaintiffs were a part of said street.</p> <p>The plaintiffs in their reply pleaded as matter in estoppel that Charles Dick was the owner of certain described lots and that he and his predecessors have been in exclusive possession of the land in dispute for more than forty years and have built fences and buildings and planted useful and ornamental trees with reference to the present location of the fence and county road which the proposed change in the street line would destroy if the same were carried out. There were similar pleas as to the other plaintiffs. Thorp’s dedication of his plat reads as follows:</p> <p>“This indenture witnesseth, that for the purpose of laying out and establishing a town within the county of Polk, and state of Oregon, to be known and designated as the town of Independence and in consideration of the location and establishment of said town and of the benefits to thereby accrue to me, I, E. A. Thorp, hereby signify my approval of the location of said town, or so much thereof as may be upon my land, and do hereby grant, dedicate, and quitclaim unto the inhabitants of said town, all and singular of the lands hereinafter described, laid ont, and designated as streets and alleys, the plat and description of said town of Independence being as follows, to wit: The same being in the northeast end of my donation land claim. ’ ’</p>

<p>From Marion: Percy R. Kelly, Judge.</p> <p>Action by J. C. Gregory against the Oregon Fruit Juice Company, a corporation, for damages for conversion. From a verdict and judgment in favor of plaintiff, defendant appeals. Reversed with directions.</p> <p>Department 1. Statement by Mb. Justice Mc-Camant.</p> <p>This is an action to recover damages for the conversion of a hydraulic pressing machine and equipment. It appears that plaintiff installed his machine in the defendant’s place of business at Salem for use during the berry season of 1915. The machine was incomplete when installed and plaintiff was unable to purchase the parts needed to equip it for the work contemplated. The defendant agreed to advance the necessary funds for this purpose, taking a lien on the machine for its security. The advances of the defendant aggregated about $400. On June 11, 1915, the parties entered into a written contract whereby defendant agreed to pay plaintiff thirty cents an hour for his services and the use of the machine. Plaintiff agreed “to give his interest-bearing note for the sums of money advanced, same to be payable on or before June 1,1916,” and to give a bill of sale or chattel mortgage to secure the note. The agreement provides: “it is further understood and agreed that said moneys so advanced acts as a lien upon said hydraulic pressing machine.” The machine was used in defendant’s plant during the berry season of 1915 and plaintiff ceased working therein about the end of July. He had made arrangements to press apples at Lebanon and desired to take the machine there for that purpose. He admits that defendant was not repaid its advances and makes no claim that it waived its lien. Plaintiff does contend that subsequent to June 11, 1915, an agreement was entered into whereby defendant consented to accept a chattel mortgage for the amount of its debt and to permit plaintiff to remove the press out of the county, to Lebanon. Defendant refused to surrender the machine and plaintiff brought this action, claiming damages in the sum of $2,054.93. Of this sum $564.93 is alleged as the value of the machine; the remainder of the damage is predicated on the interference with plaintiff’s plans to use the machine at Lebanon. The jury rendered a verdict for plaintiff in the sum of $225, on which judgment was entered. Defendant appeals.</p>

<p>Appeal and Error — Assignment of Error — Sufficiency.</p> <p>1. Under the rule of the Supreme Court requiring that appellant set put briefly and concisely the errors relied on, where the bill of exceptions shows that plaintiffs-appellants pointed out to the lower court with precision and great detail what their contentions were, and such contentions are presented in the Supreme Court in plaintiff’s briefs with the same clearness, the assignment of error that the trial court erred in not rendering judgment for plaintiffs in a larger amount is sufficient, since the rule should be construed reasonably and liberally to promote justice, and not so as to embarrass suitors by unnecessary restrictions.</p> <p>Municipal Corporations — Improvement Contracts — Delaying Contractors — Recovery on Quantum Meruit.</p> <p>2. Where a city, by enlarging the excavation and by imposing burdensome methods of doing the work, delayed its contractors for a dam so that they could not begin the laying of concrete until the fall, and the most burdensome portion of the work had to be done in the winter season under most disadvantageous conditions, the contractors were entitled to recover on a quantum meruit for the excess cost incurred by them.</p> <p>Municipal Corporations — Improvements — Rights of Contractors — Quantum Meruit — Evidence.</p> <p>3. In an action against a city by its contractors to erect a dam to recover on a quantum meruit for work without the contract, the contract was admissible as establishing the standard of value.</p> <p>Municipal Corporations — Improvements—Extra Work — Recovery.</p> <p>4. So far as work done without their contract by contractors with a city to erect a dam conforms to the contract in character and in the conditions under whieh it is done, the contract price will govern the contractors’ extra recovery on a quantum meruit against the city.</p> <p>Municipal Corporations — Extra Work — Recovery on Quantum Meruit.</p> <p>5. When contractors with a city to erect a dam did extra work under burdensome conditions not within the contemplation of the parties when the contract was made, the deviations from the contract being so material as to entitle the contractors to recover on a quantum meruit, the recovery allowed should take the form of damages adequate to compensate for the additional burdens, whieh damages should be added to the contract price.</p> <p>Appeal and Error — Review—Findings of Court Without Jury.</p> <p>6. In trying a ease without a jury, the Circuit Court exercised the functions of a jury, and its findings, having the force and effect of a special verdict, and entitling plaintiffs, in whose favor they were, to the benefit of any conclusions of law arising from them, are binding on the Supreme Court, unless wholly without support in evidence.</p> <p>Appeal and Error — Review—Finding on Conflicting Testimony.</p> <p>7. A finding on conflicting testimony made by the Circuit Court trying a case without a jury is binding on the Supreme Court.</p> <p>Pleading — Bill of Particulars — Limitation of Proof.</p> <p>8. When a bill of particulars is furnished as required by statute or by the order of a court of competent jurisdiction, the party furnishing it is confined in his proof to the items alleged therein, though he may offer proof of the value of the items along other lines than those alleged in the bill.</p> <p>Pleading — Bill of Particulars — Statute.</p> <p>9. Under Oregon law, a bill of particulars is demandable only under the provisions of Section 84, I>. O. L., and, unless the complaint alleges an account, a bill of particulars is not demandable under the section.</p> <p>Account, Action on — Contractors’ Action.</p> <p>10. An action against a city by its contractors to erect a dam to recover on a quantum meruit for the excess cost of doing the work incurred on account of the city’s increasing the amount of excavation and delaying the work, was not an action on an account.</p> <p>Pleading — Bill of Particulars — Limitation of Testimony — Statute.</p> <p>11. In an action against a city by its contractors to erect a dam to recover the reasonable cost of extra work, where the contractors furnished an account on demand of the city, the action not being on an account, so that a bill of particulars was not demandable under Section 84, L. O. L., the account furnished could not be used to shut out testimony otherwise competent in the absence of showing that the city had been misled.</p> <p>Account Stated — Accounting Month by Month.</p> <p>12. Where contractors with a city to erect a dam frequently complained to the city’s representatives that much more excavation was demanded of them than they were required by the contract to render, and notified the eity’s representatives several times that they would expect additional compensation, there was not an accounting month by month as matter of law because the contractors in a number of cases marked monthly estimates of their work O. K. over their signature and accepted 90'per cent of the contract price therefor in accordance with the contract, the elements of estoppel being lacking.</p> <p>[As to the rule that receipt of a statement of account without protest amounts to an admission of its correctness, see note in Ann. Cas. 1915A, 694.] .</p> <p>Evidence — Expert Evidence — Qualification of Witness.</p> <p>13. In an action against a city by its contractors to erect a dam to recover on a quantum meruit for extra work, a plaintiff, who had been in the contracting business for 12 years, the excavation of material having been part of the work in whieh he had been engaged, was qualified to testify as to what is the usual and ordinary way of making an excavation.</p> <p>Evidence — Expert Evidence — Qualification of Witness.</p> <p>14. Another witness, who had been in charge of construction work for 10 years or more up to the time of the trial, and who had built 40 miles of railroad, excavation being one of the lines in whieh he had had large experience, was also qualified.</p> <p>Municipal Corporations — Improvement Contract — Extra Work — Evidence.</p> <p>15. In an action against a eity by its contractors to build a dam to recover on a quantum meruit for extra work and delay caused by the city, where a ground alleged by the contractors for their right to recover was the increased burden of the work during the winter season, their testimony tending to show that the road into the works was a good road in summer, but that it would have been impassable in winter but for the work they did on it, was competent.</p> <p>Municipal Corporations — Extra Work — Evidence.</p> <p>16. It was also competent for the contractors to prove that their labor was less efficient in the winter season, and that the burden of operating the rock quarry was greater in the winter.</p> <p>Municipal Corporations — Improvements—Extra Work — Evidence.</p> <p>17. The contractors were properly permitted to show that but for the deviations from the contract complained of they could have completed the work during the summer.</p> <p>Interest — Allowance to Contractors.</p> <p>18. In such action, the trial court improperly allowed interest on the contractors’ recovery from the date of the completion of the dam, they being entitled to interest only from the date of the judgment on the amounts recovered.</p> <p>Appeal and Error — Eemand for Correction — Necessity.</p> <p>19. Under Article YU, Section 3, of the Constitution, as amended in 1910, the Supreme Court need not remand the cause for new trial to correct numerical errors in the judgment, one caused by a mistake in addition, the other by mistranscribing an item in a finding of fact, the Supreme Court being entitled to direct the trial court to correct the judgment.</p>

<p>Appeal and Error — Record—Failure to File Transcript — Motion to Dismiss — Affidavits.</p> <p>1. The recitals of a nunc pro tunc order as to an oral order previously made extending the time for filing transcript on appeal imports absolute verity, and cannot be contradicted, on motion to dismiss the appeal for .failure to file transcript, by affidavits of counsel as to what actually occurred at the time of the previous order.</p> <p>Appeal and Error — Transcript—Time for Filing — Extension.</p> <p>2. Under Act Feb. 28, 1913 (Laws 1913, p. 619), providing that the trial court or Supreme Court may enlarge the time for filing the transcript, but that such order shall be made within the time allowed to file the transcript, an order extending the time for filing the transcript may be entered before appeal has been perfected.</p> <p>Appeal and Error — Order Extending Time to File Transcript — “From Day to Day.”</p> <p>3. An order extending time for filing transeript “from day to day” is self-executing to extend the time from one day to another until the next term of the appellate court, and gives the court making it jurisdiction to make further order limiting the time for such filing.</p> <p>Courts — Record—“Journal Entry.”</p> <p>4. A “journal entry” is the prescribed memorial of what the court actually did, and must speak the real truth; so that, if the court did not in fact make an order on a certain date, one cannot be supplied by any subsequent journal entry.</p> <p>Motions — Nunc Pro Tunc Order.</p> <p>5. The authority to make an order nunc pro tunc cannot be used to amend or change an order actually made.</p> <p>Appeal and Error — Transcript—Time to File — Extension—Nunc Pro Tunc Order.</p> <p>6. An order reciting that the court previously orally ordered that time for filing transeript on appeal be extended from day to day and ordering that appellant have an extension of ten days after the date when the court reporter should file a typewritten transcript of his stenographic notes of the testimony, operated not only as a nunc pro tunc order, but also as a new order further declaring the limits of time within which the transeript might be filed.</p> <p>Appeal and Error — Record—Time to File Transcript — Extension.</p> <p>7. Under Laws 1913, page 619, as to extension of time for filing transeript, providing that no such order shall extend it beyond the next term of the appellate court, the expiration of such term automatically ends the right of defendant to file his transeript, whether or not specified by order.</p> <p>Appeal and Error — Rights on Appeal — Liberal Construction.</p> <p>8. An appeal being a remedy, the laws and actions of courts in respect thereto should be liberally construed with a view to make the remedy effective.</p> <p>ON THE MERITS.</p> <p>Appeal and Error — Right of Appeal — Payment of Costs.</p> <p>9. The mere fact that costs on former appeal have not been paid does not 'entitle the defendant to dismissal of the appeal in the absence of showing that the costs cannot be collected.</p> <p>Evidence — Crossing Accidents — Admissibility.</p> <p>10. In action for death of traffic officer when struck by auto truck, it was not error to admit statement of witness as to what seemed to him to have been the circumstances where he used the expression as the equivalent of “as I saw it.”</p> <p>[As to admission of opinion evidence of witness as to whether a person’s conduct was “eareless,” “negligent,” or “reckless,” see note in Ann. Cas. 1913C, 1077.]</p> <p>Appeal and Error — Scope of Review — Preservation of Exceptions.</p> <p>11. A party who fails to move to strike out an answer to a question has no cause for complaint that the testimony was admitted.</p> <p>Evidence — Crossing Accidents — Admissibility.</p> <p>12. While, as a genera] rule, a witness must testify to facts and not conclusions or opinions, yet, in action for death of traffic officer when struck by auto truck whose tires were of peculiar make and the tracks of which could not be reproduced, a witness could say that the tracks found fitted the tires of defendant’s automobile.</p> <p>Evidence — Province of Jury — Disregarding Testimony.</p> <p>13. The jury need not aecept as conclusive uncontradicted statements of any witness, and it may disregard undisputed testimony if unsatisfactory.</p> <p>Municipal Corporations — Crossing Accidents — Questions for Jury— Evidence.</p> <p>14. Evidence held to present a jury question whether driver of defendant’s automobile truck was negligent in turning to the left before crossing an intersection, and in so doing killing the traffic officer stationed at sueh intersection.</p> <p>Municipal Corporations — Injuries to Persons — Instructions — Care Required.</p> <p>15. In action for death of traffic polieeman when struck by auto truck, instruction precluding recovery if the polieeman was negligent, and that the jury could consider that he had duties to perform, and could not look after himself as an ordinary pedestrian, is not objectionable as imposing less than the ordinary degree of care upon the officer, where the court further instructed the jury to consider all the circumstances.</p> <p>Trial — Instructions.</p> <p>16. Instruction that the jury is supreme in the realm of fact, and that the court is supreme in the realm of law, whether it correctly states it or not, is proper.</p> <p>Trial — Instructions—Repetition.</p> <p>17. Refusal of requested instructions which, in so far as they conform to the law, were covered by charges given, was not error.</p> <p>Costs — Dilatory Appeal — Damages.</p> <p>18. Where an appeal was taken in good faith and with probable cause, the respondent is not entitled to 10 per cent of the judgment as damages for delay.</p>

Prom Multnomah: William N. Gatens, Judge. The plaintiff, Mary H. Evans, commenced a suit to quiet title against the Meridian Investment & Trust Company, now known as the Meridianal Company, a corporation, and the City of Portland. Prom a decree in favor of plaintiff, defendants appeal. Affirmed. Rehearing denied. Department 2. Statement by Mr. Chief Justice McBride.

From Josephine: Frank M. Calkins, Judge. This is an action by W. A. Hinderliter against W. L. McDonald in which plaintiff was the prevailing party and defendant appealed. Beversed, remanded and rehearing denied. In Banc. Statement by Mr. Justice Burnett.

From Multnomah: George R. Bagley, Judge. Action by Isabella Cauldwell against the Bingham & Shelley Company, a corporation, Thomas Muir and Joseph Clossett, in which a judgment was rendered in favor of defendants, and plaintiff appeals. Respondent, Bingham & Shelley Company, files motion to dismiss the appeal. In Banc. Statement by Mr. Justice Harris. The defendant Bingham & Shelley Company, a private corporation, moves to dismiss the appeal prosecuted by plaintiff.

From Malheur: Dalton Biggs, Judge. A foreclosure suit by Douglas Smith, Albert Gr. Lester and William Butterworth, trustees, against S. M. Willis and L. Gr. Willis. Plaintiffs being dissatisfied with the decree rendered in the lower court, prosecutes this appeal. Affirmed as modified. Department 1. Statement by Me. Chief Justice McBeide. This is a suit to foreclose two mortgages upon separate parcels of land, hereinafter called for convenience tracts No. 1 and No. 2.

From Multnomah: T. E. J. Duffy, Judge. Action by Frank L. Waller against tke City of New York Insurance Company, a corporation, to recover for loss by fire of a building occupied as a dwelling, that was insured in the defendant company. From the verdict of a jury in favor of plaintiff, defendant appeals. Reversed and remanded. Department 1. Statement by Mr. Justice Burnett.

<p>From Multnomah: Robert Gr. Morrow, Judge.</p> <p>This is a suit by Fred West against the Scott-McClure'Land Company, a corporation, to quiet title. From a decree in favor of plaintiff, defendant appealed. Reversed.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>This is a suit to quiet title to real property in the City of Portland. The complaint is in the usual form and calls upon the defendant to set forth its estate in the land to the end that the plaintiff’s title may be declared paramount to and exclusive of the claims of the adverse party. There are two defenses, one in abatement and the other to the merits. The first gives a brief history of the action of the city council of Portland under its ordinance No. 24,280, entitled “An Ordinance making a reassessment for the construction of a sewer system known as Riverside District Sewer,” culminating in a sale of the realty in question on May 14, 1914, by the treasurer of the City of Portland who is ex officio collector of delinquent assessments. The defendant bought the tract thus offered for $100.65, and received a certificate from the treasurer to that effect. The plea in abatement closes with the declaration :</p> <p>“That the plaintiff has not tendered or paid into court the said sum of money for which said property was sold or any part thereof, or any interest or penalty thereon as provided in said certificate of sale and as provided in the charter of the City of Portland.”</p> <p>The defense to the merits gives a more detailed history of the proceedings of the city under the ordinance mentioned, including an appeal by the plaintiff here to the Circuit Court of Multnomah County on the amount of benefits to be assessed against tbe land, tbe result of which was that the original apportionment as declared by the ordinance was in all things affirmed. It is said that the judgment of the Circuit Court therein has never been vacated nor set aside and the assessment has never been paid. Then follow allegations respecting the further action of the city treasurer terminating in a sale by that officer to the defendant and an issuance to it of the treasurer’s certificate of which it is still the holder whereby the defendant claims a lien was created upon the premises in its favor. The Circuit Court sustained a general demurrer to both defenses. The defendant declined further to plead and there followed a decree quieting the title of the plaintiff and awarding him costs and disbursements. The defendant appeals.</p>

<p>Costs — Payment—Stay of Subsequent Suit.</p> <p>1. It is within the discretionary power of a court to stay proceedings in a suit until the plaintiff therein shall have paid the costs assessed against him in a prior suit between the same parties, involving substantially the same matter and praying for the same relief.</p> <p>Appeal and Error — Decisions- Appealable — Stay of Proceedings— Costs.</p> <p>2. An order providing that plaintiff shall pay the costs of prior suit within 90 days, and in default thereof his suit shall be dismissed, is interlocutory and not appealable pending expiration of the 90 days.</p> <p>Costs — Payment—Stay of Proceedings — Discretion.</p> <p>3. Where a decree was entered enjoining a judgment creditor from setting up, prosecuting or attempting to proceed on the judgments, and such decree was not set aside or any attempt made to set aside same, the entry of an order in a subsequent suit between the same parties, involving the same subject matter and the same relief, requiring that 'plaintiff pay the costs of the prior suit within 90‘ days and in default thereof his suit be dismissed, was not an abuse of discretion, where it was not denied that the judgments had been satisfied, though it was alleged that false testimony was introduced in the former case.</p> <p>Judgment — Res Judicata.</p> <p>4. Until the first decree has been set aside, a suit will not lie to retry a case between the same parties, involving the same subject matter and the same relief.</p> <p>Judgment — Impeachment—Perjured Testimony.</p> <p>5. A decree cannot be impeached in a suit in equity merely on allegations that it was procured by perjured testimony.</p>

<p>Disbarment proceedings in the Supreme Court.</p> <p>In Banc. Statement by Mr. Chiee Justice McBride.</p> <p>This is a disbarment proceeding instituted by the state upon relation of the grievance committee of the Oregon bar association. The complaint charges, in substance:</p> <p>“5. That on, to wit, the last day of July, 1916, a Grand Jury, duly empaneled in the District Court of the United States for the District of Oregon, returned an indictment against the said Wm. J. Prendergast for violation of Section 215 of the Federal Penal Code; that in the said indictment it was charged that Wm. J. Prendergast on, to wit, the 9th day of February, 1916, in the City of Portland, in the State and District of Oregon, having devised and intending to devise a scheme and artifice to defraud various and sundry persons named in said indictment, and for the purpose of furthering and executing said scheme and artifice to defraud, and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises, did knowingly, willfully, unlawfully, and feloniously place and cause to be placed in the postoffice at Portland, Oregon, certain letters and other mailable matter to the said various and sundry persons therein named, contrary to the form of statute in such case made and provided and against the peace and dignity of the United States of America; and that by means of said scheme and artifice so contrived and conceived the said ¥m. J. Prendergast did defraud various and sundry individuals out of money, all contrary to the form of statute in such case made and provided.</p> <p>“6. That on, to wit, July 6, 1916, ¥m. J. Prendergast was arrested on said charge, and at a regular term of the District Court of the United States, for the District of Oregon, held at the Federal Court House in Portland, Oregon, on the 17th day of November, 1916, the said ¥m. J. Prendergast was duly and legally tried and convicted of the crime charged in said indictment, to wit, using the mails of the United States to defraud; that judgment was by the said District Court of the United States, for the District of Oregon, prononneed against ¥m. J. Prendergast and he was sentenced and ordered to pay a fine of $800; and that on, to wit, the 5th day of February, 1917, the said ¥m. J. Prendergast did pay said fine, whereby, and by reason whereof, said judgment of conviction became and is final against the said ¥m. J. Prendergast.</p> <p>‘' 7. That ¥m. J. Prendergast has been, by reason of the proceedings herein referred to, convicted of a felony and a crime involving moral turpitude; that by reason of the said conviction the said ¥m. J. Prendergast has forfeited all rights to practice in or appear before this or any other court of the State of Oregon; and that the said ¥m. J. Prendergast should be required and cited to show cause why he should not be disbarred from further practice before the courts of the State of Oregon, and this court’s records purged of his name.”</p> <p>The statute applicable to this subject is found in Section 1092, subd. 1, L. O. L., and provides that an attorney may be removed or suspended from practice “upon Ms being convicted of any felony or of a misdemeanor involving moral turpitude, in either of which cases the record of his conviction is conclusive evidence.”</p> <p>The defendant demurs generally to the complaint.</p>

From Baker: Gustav Anderson, Judge. TMs is a suit by Jesse D. Toney against Alta E. Toney and another to set aside a deed. From a decree in favor of plaintiff, defendant Alta E. Toney appeals. Affirmed. In Banc. Statement by Mr. Justice McCamant.

Prom Wallowa: John W. Knowles, Judge. This is an action in replevin by the Enterprise Mercantile & Milling Company, a corporation, against D. M. Cunningham. From a verdict and judgment in favor of plaintiff, defendant appeals. Reversed and remanded with directions to enter judgment for the defendant. Reversed and remanded. In Banc. Statement by Mr. Justice Benson.

<p>Intoxicating Liquors — Sufficiency of Indictment — Statute.</p> <p>1. Under the direct provisions of Laws 1915, page 166, Section 33, it is not necessary that an indictment should disclose that a party charged with the illegal sale of intoxicating liquor did not have legal authority to' sell such liquor, or that he was not within any of the exceptions provided for by the act.</p> <p>Intoxicating Liquors — Pleading—Proof.</p> <p>2. In a prosecution for the illegal sale of intoxicating liquors, designated in the indictment as “ethyl alcohol,” as “alcohol” and “ethyl alcohol” are practically synonymous, there is no merit in the contention that in disclosing merely a sale of alcohol there was a failure of proof, and that the court erred in instructing the jury that “ethyl alcohol is, as a matter of law, intoxieating liquor.”</p> <p>Witnesses — Impeachment—Prior Convictions.</p> <p>3. In view of statutory provision that to impeach a witness it may be shown by examination of the witness that he has been convicted either of a felony or misdemeanor, in a prosecution for the illegal sale of intoxieating liquors, where defendant testified that he had been convicted but once, the state was properly permitted to show in rebuttal that there were five prior convictions of defendant.</p> <p>[As to violation of liquor law as “crime” for conviction of which witness may be impeached, see note in Ann. Cas. 1916A, 276.]</p> <p>Intoxicating Liquors — Instructions.</p> <p>4. In a prosecution for the illegal sale of intoxieating liquors, where there was evidence that a witness for the state and another went to a point near defendant’s place on the day that this sale was alleged to have been made, and that such other went into the defendant’s store and came out in a short time with a bottle of alcohol, •from which the witness drank, the court properly refused to instruct that there was no evidence that defendant on the day stated made a sale to such person.</p>

<p>Heading — Demurrer—Admission.</p> <p>1. For purposes of an appeal, demurrers to the complaint admit the facts pleaded.</p> <p>Fish — Ownership in State.</p> <p>2. Fish are ferae naturae, and while in a state of freedom their ownership, so far as a right of property can be asserted, is in the state, not as a proprietor, but in its sovereign capacity for the benefit of and in trust for its people in common.</p> <p>[As to ownership of or property in fish, see note in 131 Am. St. Rep., 751.]</p> <p>Navigable Waters — Title of State to Land Under Navigable Water — > Admission of Territory.</p> <p>3. On its admission to the Union, Oregon was vested with title to the land under the navigable waters within the state, subject to the public right of navigation, and to the common right of citizens of the state to fish.</p> <p>Fish — Regulation by State.</p> <p>4. In the exercise of its police power, and for the welfare of all its citizens, the state can regulate or even prohibit the catching of fish.</p> <p>Fish — Master Fish Warden — Power.</p> <p>5. The master fish warden of the state, holding a position created and exercising an authority defined by the legislature, cannot do what the legislature cannot empower him to do.</p> <p>Constitutional Law — Privileges and Immunities — Exclusive Right to Catch Salmon — Monopolies.</p> <p>6. In Oregon, the legislature cannot grant to one person an exclusive right to catch salmon at a place and in waters where all eitizens have the right to fish, because, when that which belongs equally to all the citizens of the state is taken from all and vested in only one citizen, it is equivalent to transforming a public right into a monopoly, exercisable by only one citizen, and therefore violative of Article I, Section 20, of the Constitution, providing that no law shall be passed granting to any citizen or class of citizens privileges or immunties, which, on the same terms, shall not equally belong to all citizens.</p> <p>Constitutional Law — Separation of Powers — Delegation of Legislative Power.</p> <p>7. There is a large class of cases where the legislature may vest in administrative officers power to determine when particular cases do or do not fall within a competent rule established by the legislature.</p> <p>ConsHtutinnai Law — Separation of Powers — Delegation of Legislative Power.</p> <p>8. The legislature may delegate to a board the power to stock a stream with fish and close it against fishing, providing the order is not discriminatory.</p> <p>Constitutional Law — Delegation of Legislative Power to Board — Interference by Court.</p> <p>9. In cases where the legislature may delegate to and vest in an administrative board a power, the courts will not attempt to control or interfere with the judgment and discretion of the administrative officers.</p> <p>Constitutional Law — Legislative Power — Delegation.</p> <p>10. The legislature can neither directly nor indirectly empower a mere administrative board to do that which the legislature itself cannot do.</p> <p>Fish — License to Build Fish-traps — Prior Eights — Statute.</p> <p>11. Under' Laws 1913, page 225, providing that it shall be unlawful for the master fish warden or board of fish commissioners to grant a license to any person to build fish-traps in any locality in the Columbia Biver. when in their judgment the same interfere with a prior right of fishing, etc., the mere issuance by the master fish warden to defendant of licenses to build fish-traps in the Columbia Biver did not foreclose inquiry into the existence of prior fishing rights at the locality involved in suit by aggrieved persons to prevent the construction of the traps, since the statute makes no provision for a notiee or hearing, and makes no attempt to vest the warden with judicial authority, so that the doctrine that courts cannot interfere with the judgment and discretion of administrative officers has no application.</p> <p>Constitutional Law — Adjudication of Eights by Officer or Board— Statute.</p> <p>12. LawB 1913, page 225, construed as an attempt to vest the master fish warden or board of fish commissioners with judicial power to adjudicate constitutional rights, would be unconstitutional to the extent of such an attempt.</p> <p>Fislh — Fish-traps—Confiscation of Piling — Statute.</p> <p>13. Though a person licensed to do so by the master fish warden is not entitled to construct salmon traps in the Columbia River or to maintain the piling driven at each of three places, it would be inequitable to command the warden and board of fish commissioners to remove and confiscate the pilings under the provisions of Laws 1913, page 226, Section 2, when they were driven pursuant to licenses presumably issued in good faith.</p>

From Multnomah: William N. Gatens, Judge. In Bane. Statement by Me. Justice Mooee. This is a suit by the Baggage and Omnibus Transfer Company, a corporation, against the City of Portland, a municipal corporation, and its- directing executive officers, to enjoin the threatened enforcement of a city ordinance.

From Hood River: William L. Bbadshaw, Judge. Action by John R. Johnson against the Pacific Land Company. From a judgment for .plaintiff, defendant appeals. Department 2. Statement by Mr. Justice Bean. This is an action for the possession of personal property. The cause was tried before a jury and a verdict rendered in favor of plaintiff. From a consequent judgment defendant appeals.

From Multnomah: Robert Gr. Morrow, Judge. Department 2. Statement by Mr. Justice Moore. This is a suit to set aside a bill of sale, to cancel a promissory note and a chattel mortgage, and to re-' cover the consideration given for personal property and the assignment of a lease.

Original proceedings by quo warranto in Supreme Court. Action instituted in the name of the State of Oregon ex inf. T. H. Groyne, District Attorney, for Tillamook County, Oregon, against John 0. Bozorth, J. C. McClure, Theodore Jacoby, W. C. Hawk, George James, J. T. Nevins and Henry Butler, comprising the city officers of Bay City, a municipal corporation. In Banc.

<p>Vendor and Purchaser — Rescission hy Purchaser — Tender of Purchase Price.</p> <p>1. Under an agreement providing for a deed after payment of purchase price, the purchaser cannot rescind for failure to deliver deed where he has not tendered or paid purchase price.</p> <p>Vendor and Purchaser — Assignment hy Purchaser — Status of Vendor.</p> <p>2. An assignment, or arraignment for an assignment, of a contract for the purchase of land, does not change status of vendor; the assignee standing in no better position than assignor.</p> <p>Vendor and Purchaser — Strict Foreclosure — Defense—Defective Title.</p> <p>3. In an action against a purchaser in possession for strict foreclosure of a contract for the sale of land by vendor before the time when he is required to pass title, the purchaser cannot defend on the ground that title is defective, since vendor may acquire title, before the specified time.</p> <p>Vendor and Purchaser — Strict Foreclosure — Defective Title — Estoppel.</p> <p>4. In such ease the vendor and vendee stand in relation of landlord and tenant, and the purchaser, or his assignee, in possession is estopped from denying title of vendor.</p> <p>Vendor and Purchaser — Strict Foreclosure — Tender of Title — Concurrent Acts.</p> <p>5. The rule that before vendor can foreclose a sale contract he must tender title according to contract is not applicable, where payment of purchase price is a condition precedent to execution of deed; payment and making conveyance not being concurrent acts.</p> <p>ON PETITION EOR REHEARING.</p> <p>Vendor and Purchaser — Rescission by Purchaser — Default in Payment of Interest.</p> <p>6. Under an agreement providing for a deed after payment of purchase price, the purchaser cannot rescind for defects in vendor’s title, where, after allowing purchaser all credits to which he is entitled, he is still in default in payment of interest at the time vendor brings suit to foreclose the contract.</p> <p>Vendor and Purchaser — Rescission by Vendor — Conditions Precedent.</p> <p>7. In order to put the vendor in default and claim a rescission of the contract, the purchaser must be ready to pay the entire purchase price, must offer' to do so and demand a deed.</p> <p>Vendor and Purchaser — Rescission—Grounds—Defects in Title.</p> <p>8. Under a contract providing for a deed after payment of purchase price, payable a long time subsequent to date of contract, a defect in vendor’s title does not call for rescission, provided sale is in good faith, and vendor has not by some affirmative act put it out of his power to perform; it being sufficient that he have title when purchaser has a right to a deed.</p> <p>Vendor and Purchaser — Strict Foreclosure— “Good Commercial Title” —Necessity.</p> <p>9. Although' contract did not require delivery of a good and sufficient deed free from all legal encumbrances until payment of purchase price, vendor must, where he seeks a strict foreclosure, require purchaser to pay within a limited time a large sum of money due on purchase priee, or lose his interest in property, be able to furnish a good commercial title, a title such as attorney for purchaser should advise his client to accept.</p> <p>Vendor and Purchaser — Rescission by Purchaser — Failure to Furnish Abstract — Estoppel.</p> <p>10. Granting that contract should be reformed, so as to require vendor to furnish an abstract of title, purchaser, who purchased an abstract and made payment on purchase priee after vendor’s alleged failure, was not entitled to rescind for vendor’s failure to furnish an abstract.</p>

From Columbia: James A. Eakin, Judge. Suit on cross-bill in equity by the Noyes-Holland Logging Company, a corporation, and the Portland Lumber Company, a corporation, are plaintiffs-appellants, against tbe Pacific Live Stock & Lumber Company, a corporation, and M. T. 0 ’Connell are defendants-respondents, in -wbicb suit tbe appellants prayed for and obtained, ex parte, a temporary restraining order, pendente lite. Respondents move to dissolve the injunction.

From Baker: Gustav Anderson, Judge. Suit to foreclose mining liens by F. W. Bishop against Susie Norwood Henry, Steve Chaplin, Grace Carmalt, A. W. Eastham, George W. Paris, George Hansell, Joe Kingsbury and E. C. Crawford, for materials, supplies and labor upon a certain mill and •mining claims. The court below decreed a lien upon the mill and the real property but refused any lien as to the mining claims. Plaintiff and defendant, Kings-bury, appeal. Modified. In Banc.

<p>From Baker: Gustav Anderson, Judge.</p> <p>Action for damages by tbe Stoddard Lumber Company, a corporation, against the Oregon-Washington Railroad & Navigation Company, a corporation. From a judgment entered on a verdict of a jury in favor of plaintiff, defendant appeals.</p> <p>In Banc. Statement by Mr. Justice McCamant.</p> <p>This is an action brought to recover damages sustained by plaintiff’s assignors, Stoddard Lumber Company, a Utah corporation, and Shockley & McMurren Lumber Company, by reason of the alleged failure of a connecting carrier of the defendant to notify plaintiff’s assignors of the nondelivery of shipments of box shooks carried over the lines of defendant and its connecting carriers, in the year 1912. The complaint sets up five causes of action. It appears that plaintiff’s assignors had received orders from Pierce & Maternes, of Hotchkiss, Colorado, for the shooks in question and that pursuant to these orders the first carload was shipped from Baker, Oregon, July 29, 1912, reaching Hotchkiss on August 12th. The car mentioned in the second count of the complaint left Baker August 2d and reached Hotchkiss August 14th; that mentioned in the third count left Baker August 17th, arriving at Hotchkiss September 7th; that in the fourth count left Baker August 19th and reached Hotchkiss September 4th; that mentioned in the fifth count, being the car sold by Shockley & MeMurren Lumber Company, left Baker August 10th and reached Hotchkiss August 23d. The shipments were in each case consigned to the order of the shipper and a direction was written on the bill of lading requiring the carrier to notify Pierce & Maternes. The bill of lading in each case was handed by plaintiff’s assignors to the Baker Loan & Trust Company, by which course it was transmitted to the Bank of North Fork at Hotchkiss, Colorado. A draft for the purchase price accompanied the bill of lading, and the instructions given to the Hotchkiss bank required it to insist upon payment of the draft before surrender of the bill of lading.</p> <p>The goods in each case reached Hotchkiss over the lines of the Denver & Bio Grande Bailroad Company. It is conceded that this carrier notified Pierce & Maternes and that Pierce & Maternes failed to take up the bills of lading. The defendant alleges in its answer that these purchasers promised from day to day that they would secure the bills of lading and accept delivery of the goods, but no evidence was offered in support of this allegation. No notice was given plaintiff’s assignors of the nondelivery of the goods, and on September 26th they applied to the defendant at Baker to send a tracer after the shipments. On the following day, September 27th, they were notified that the box shooks were still undelivered at Hotchkiss. The shooks were suitable for the making of peach boxes and for no other purpose. At the time when they reached Hotchkiss the evidence satisfactorily shows an active market for peach boxes, justifying the conclusion that if plaintiff’s assignors had been promptly notified they could have disposed of the goods. About September 15th the peach crop in that part of Colorado was destroyed by frost and thereafter the box shooks were unsalable. By the time plaintiff’s assignors were notified of the nondelivery of the goods considerable charges had accumulated against them for freight and demurrage. Plaintiff’s assignors refused to pay these charges. The railroad company thereupon stored the goods in the vicinity and sold them during the following season, accounting to plaintiff’s assignors for the net proceeds,- which were received under a stipulation that plaintiff should not be prejudiced thereby in this litigation.</p> <p>Plaintiff claims the right to charge the defendant with the dereliction of its connecting carrier, under the Carmack Amendment to the Interstate Commerce Law. The jury found for plaintiff in the invoice value of the shipments, less the sums which had been paid plaintiff’s assignors on the sale of the box shooks in 1913. The defendant appeals.</p>

From Washington: Henry L. Benson, Judge. Suit by H. E. Noble, against J. Arthur Watrous and -Watrous, his wife, Sherman Bacon and -- Bacon, his wife, to quiet title. From a decree in favor of defendants, plaintiff appealed. Reversed. Department 2. Statement by Mr. Justice Mc-Camant. This is a suit brought to quiet the title to the west half of the northeast quarter of section 13, T. 3 N., R. 4 W., in Washington County.

From Malheur: Dalton Biggs, Judge. Action by Arthur S. King against the Oregon Short Line Railroad Company, a corporation. From a judgment in favor of plaintiff, defendant appealed. Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi). In Banc. Statement by Mr. Justice McCamant. This is an action brought to recover the value of a cow alleged to have been killed by the defendant’s negligence.

<p>Limitation of Actions — Statutes—Applicability to State.</p> <p>1. It is a rule that the government is not included in a general statute of limitations unless expressly or by necessary implication included.</p> <p>Limitation of Actions — Statutes—Applicability to State.</p> <p>2. Although the state is not named, if it appears that it is the real party in interest, a limitation statute which does not expressly or by necessary implication include the state will not be permitted to operate.</p> <p>Constitutional Law — Obligation of Contracts — State.</p> <p>3. The state, like a private person, is prohibited from impairing the obligation of a contract entered into by it.</p> <p>Constitutional Law — Impairing Obligation of Contracts — Statute of Limitation.</p> <p>4. A pure statute of limitation affects the remedy, and not the debt, and does not impair any obligation imposed by contract.</p> <p>[As to the general theory and policy of the statute of limitation, see note in 95 Am. St. Rep. 656.]</p> <p>Limitation of Actions — Statutes—Applicability to State — “Real Party in Interest.”</p> <p>5. Under Laws 1913, pages 580, 581, Sections 1, 2, 3, providing that no mortgage upon real estate heretofore or hereafter given shall be a lien' or encumbrance after the expiration of ten years, etc., does not apply to the foreclosure by state land board of a mortgage given to secure moneys borrowed from the irreducible school fund; the state being the real party in interest, although proceedings are in the name of the state land board.</p>

From Baker: Gustav Anderson, Judge. In Banc., Statement by Mr. Justice Bean. Tkis is a proceeding for a writ of review to set aside the judgment of the Justice’s Court in an action wherein H. J. Cummings was plaintiff and Amos Roethler and David Lee were defendants. The writ was sustained by the Circuit Court and defendant Cummings appeals. Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).

Original proceeding in Supreme Court in mandamus. Proceeding in mandamus by tbe State of Oregon, upon tlie relation of James Withycombe, Governor, against J. E. Stannard, county clerk of Curry County, Oregon; William Tollman, sheriff of Curry County, Oregon; W. A. Wood, county judge of Curry County, Oregon, and G. J. Heiberger and E. B. Sypher, county commissioners, the three last-named parties constituting the County Court of Curry County, Oregon, to require said defendants…

From Multnomah.: George N. Davis, Judge. Department 1. Statement by Mr. Justice Mc-Camant. This is an interpleader suit brought by Wakefield, Fries & Company, a corporation, to determine the ownership of a fund in its hands. The right of inter-pleader is admitted by the defendants. The controversy is between the appellant, Alfred L. Parkhurst, and the respondents, Chamberlain, Thomas & Kraemer.

From YamMll: Harry H. Belt, Judge. This is an action by the firm of Wigan, Richardson & Company, a partnership, against C. M. La Follett and J. D. Isham to recover the advances made by plaintiffs to the defendants under a contract for the sale and purchase of a certain grade and amount of hops: The plaintiffs being dissatisfied with the amount of the judgment they recovered in the lower court, have appealed. Department 2. Statement by Mb. Justice Bean.

From Multnomah: Robert G-. Morrow, Judge. Proceedings by George Miller for workman’s compensation before the State Industrial Accident Commission. From a judgment reversing the order of the commission, the commission appealed. On motion to dismiss the appeal.

From Marion: George G. Bingham, Judge. The State of Oregon ex rel. Max Gehlhar, as district attorney of the State of Oregon for Marion County, brought this suit against U. G. Boyer, county clerk of the county of Marion, enjoining him as such official from placing a certain measure upon the ballot for the special election to he held on June 4, 1917.

<p>From Multnomah.: Calvin U. G-antenbein, Judge.</p> <p>Action by the Corvallis & Alsea River Railroad Company against the Portland, Eugene & Eastern Railway Company. Judgment for the plaintiff, and defendant appeals.</p> <p>In Banc. Statement by Mr. Justice Bean.</p> <p>This is an action brought by the plaintiff against the defendant to recover damages for the breach of a contract. The cause was tried to the court and jury and a verdict rendered in favor of plaintiff for $19,809, and $500 attorney’s fees. From a resulting judgment defendant appeals.</p> <p>Plaintiff alleges in effect that on April 17,1911, and for some time prior thereto, it owned and operated a railroad line from Corvallis to Monroe and also owned certain railway equipment, rolling stock, real and personal property, rights of way, contracts and franchises; that among the contracts was one made during the year 1909 between the plaintiff and the Corvallis Lumber Manufacturing Company, hereafter to be designated as the Lumber Company, by the terms of which plaintiff agreed to construct a branch line from its main track on or before May 15, 1910, extending into section 16, and also to extend that spur to a point within the boundary lines of the northwest quarter of section 20 on or before June 1, 1911, the Lumber Company to furnish logs from said timber for transportation to Corvallis over the branch line when constructed; that about March 1, 1911, by agreement between the plaintiff and the Lumber Company, the time for the construction of the branch line was extended until March 1, 1912; and that the plaintiff constructed the first portion of this line but never completed the remainder.</p> <p>Plaintiff further avers that prior to April 17, 1911, it had entered into negotiations with the defendant company^for the sale to the latter of its railway lines, equipment, etc., during which transactions plaintiff particularly called attention to its contract with the Lumber Company and to the modification thereof; that on April 17, 1911, a contract was entered into between the plaintiff and defendant whereby the former agreed to sell and the latter to purchase all plaintiff’s railway lines, equipment, rolling stock, rights of way, contracts and franchises; that thereafter in June, 1911, plaintiff conveyed its said properties to defendant and the latter accepted the same and entered into possession thereof.</p> <p>Plaintiff also asserts that it was the intention of the parties in making the conveyance of the railway property that the contract with the Lumber Company as modified should be transferred to the defendant and that the latter should have the benefit of it and assume the obligations incident thereto; but that the defendant refused to perform the contract with the Lumber Company or to construct the branch line. Plaintiff claims that the Lumber Company at the time knew of the negotiations looking to the sale to the defendant of plaintiff’s entire railway property and that it (the Lumber-Company) was at all times willing for the defendant to purchase plaintiff’s contract with it, carry out the terms thereof, and build the branch line, but that it never released the plaintiff from its obligation to build that line; that by reason of the defendant’s failure to comply with this contract and construct a branch line the Lumber Company instituted an action against the plaintiff in the Circuit Court of the State of Oregon for Benton County; and that such proceedings were had therein that a judgment was rendered against the plaintiff and in favor of the Lumber Company for the sum of $18,000, with interest at 6 per cent from the date of release (December 1, 1913) and costs and disbursements in the amount of $124. In the trial of this action it was also stipulated that $500 was a reasonable expenditure on the part of plaintiff in defending the case brought against it by the Lumber Company. By its answer the defendant admitted its corporate identity but denied all the remainder of the matters alleged in the complaint. Afterwards, at the trial of the cause defendant amended its answer by setting forth separately and affirmatively that on July 20, 1911, the plaintiff executed and delivered to it a certain warranty deed conveying to it, among other things, the then constructed portion of the railroad leading towards the Lumber Company’s timber; that the deed contained other covenants of warranty whereby plaintiff covenanted that it would “warrant and forever defend the said granted premises and every part and parcel thereof against all claims and demands of any person or persons whomsoever”; that by reason of these covenants of warranty plaintiff was estopped from alleging, asserting, proving or making any recovery upon the contract alleged in the complaint to have been in existence between the plaintiff and the Lumber Company.</p> <p>The record discloses substantially the following facts: During the year 1909 the Lumber Company which was then erecting a sawmill at Corvallis purchased a large amount of standing timber in sections 16 and 20, for the purpose of supplying its mill with sawlogs. Previous to such purchase there was a verbal agreement between it and the plaintiff to the effect that if it would purchase the timber and ship the logs therefrom over plaintiff’s railroad, the latter would construct the necessary branch line to reach the timber, there being no other means of transporting it. Before the Lumber Company completed such purchase it insisted on a writing from plaintiff embodying the verbal agreement binding the latter to construct the branch line. Such an instrument was executed by the plaintiff on November 4, 1909. It is in the form of a bond executed under seal and binds the plaintiff to-build a branch line into section 16 on or before May 15, 1910, and to a point within the boundary lines of the northwest quarter of section 20 on or before June 1, 1911, and to have the same in condition for the transportation of logs from each parcel of land within the time specified. The bond recited in effect that the condition of the obligation was that the Lumber Company was at present engaged in constructing and equipping a sawmill at the City of Corvallis and contemplated the purchase of certain timber lands in Benton County in sections 16 and 20 and that it desired plaintiff to construct a railroad or branch or spur line of railroad to its sawmill at Corvallis. It further recited, in substance, that plaintiff had before October 1, 1909, agreed with the Lumber Company that if it would purchase said timber it would construct this line of railroad into sections 16 and 20 along a certain route described in the bond and would construct and extend the line as therein indicated. After the execution and delivery of this bond to the Lumber Company it purchased the timber on sections 16 and 20, and in performance of its part of the contract the plaintiff built the branch line into section 16 and the Lumber Company cut a large part of the timber therefrom and shipped the same to Corvallis over plaintiff’s railroad. The bond was introduced in evidence. The agreement to extend the time for the building of the branch line into section 20 is as follows:</p> <p>“This memoranda agreement between Corvallis Lumber Manufacturing Company, and Corvallis & Alsea River Railroad Company, Witnesseth:</p> <p>“Whereas, heretofore and on or about October 1, 1909, Stephen Carver, the general manager of the above railroad company, entered into an agreement with the above named Manufacturing Company that the said railroad company would construct its line of railroad or branch or spur lines thereof across certain property purchased by the said Manufacturing Company from one J. L. Hartman and wife, and that they would extend the said line through the center of Section 16 of said property on or before May 15,1910, and a further extension to a point within the boundary lines of the northwest quarter of said Section 20 on or before June 1st, 1911; and</p> <p>“Whereas, said Manufacturing Company is not in the immediate need of said second extension, and will not need the same prior to March 1, 1912,</p> <p>“Now, therefore, in consideration of the premises, the said Manufacturing Company does hereby extend the period for the second extension from June 1,1911, to March 1, 1912.</p> <p>“Provided, however, that all other conditions, covenants and agreements mentioned in said original contract, to which this extension is to become attached and made a part thereof, shall remain in full force and effect, unaltered and unmodified, save and except that the time within which the second extension of the spur shall be completed shall be March 1, 1912, in lieu of June 1, 1911.</p> <p>“In witness whereof, the parties hereto have hereunto set their hands and seals this 1st day of March, 1911.”</p> <p>The bond and agreement of modification thereof, exhibits “C” and “D” herein, were introduced in evidence in the Circuit Court in the Benton County Case.</p> <p>After negotiations had been pending for some time, on April 17, 1911, the plaintiff and defendant entered into a contract for the sale of the former’s railroad, about thirty-one miles in length, with two branches known as the Grlenbrook and the Bellfontaine, together with the rolling stock, equipment, machinery, tools and supplies and “all other property, real and personal, contracts, rights, assets, and franchises of whatever description and wherever situated * * except its franchise to be a corporation.”</p> <p>The consideration was $410,000, $25,000 of which was to be paid in cash and the balance in deferred payments evidenced by notes of certain denominations to be secured by mortgage bonds pledged therefor as security which were to be placed in the hands of a trustee for that purpose. The contract provided for an issue of bonds by the purchaser in the principal sum of not less than $880,000 and not more than $1,200,000. It also provided that:</p> <p>“Provision shall be made so that bonds may be issued for extensions, additions, betterment's or improvements to such amount for each additional mile of single track railroad as the purchaser may elect, but not exceeding $25,000 for each such mile.”</p> <p>It was stipulated therein that the Corvallis & Alsea River Railroad Company should pay all claims against the road up to the date of the contract, April 17, 1911. On July 20,1911, a deed was executed by plaintiff conveying to defendant the property described in the contract. There were several details pertaining to the right of way, etc., which were not completed on the part of the plaintiff until about October of that year. About October 17th a copy of the bond with the Lumber Company was delivered to defendant. When the sale was made, according to the agreement with the Lumber Company there remained to be constructed an extension of about three fourths of a mile in a direct line, but on account of the contour of the land a construction of twice that distance or more was necessitated to reach the timber in section 20. Plaintiff asserts that the defendant accepted the contract to construct the extension and assumed and agreed to perform it. It appears that the Portland, Eugene & Eastern Railway Company, the defendant, did commence the performance of the contract by assembling men and materials on the right of way, making surveys, erecting bunk-houses, and doing some work clearing the right of way. It also constructed or changed a siding and hauled some of the timber for the Lumber Company from section 16. Thereafter it abandoned the work and refused to construct the line into section 20. During the negotiations for the sale of the road the officer of the plaintiff showed Mr. O’Connor, who was representing the defendant in the transactions, where the railroad extension was to be built and where they expected to build it to carry out the contract with the Lumber Company. The latter company was unsuccessful in attempting to get the defendant to complete the line and brought an action against the plaintiff in the Circuit Court of Benton County for damages for failure to construct the line into section 20, claiming that while it was willing for the defendant to build the line it had never released plaintiff from its contract to build the same. Immediately upon being sued plaintiff gave defendant notice to defend, and informed and advised it:</p> <p>“That in the event the Corvallis & Alsea River Railway Company suffers any damage by virtue of this suit we shall hold the Portland, Eugene & Eastern Railway Company responsible.”</p> <p>The notice was ignored by the defendant. Plaintiff engaged reputable counsel and defended the suit in good faith to the best of its ability with the result that the Lumber Company recovered a judgment against it for $18,124 for failure to build the branch line into section 20. Plaintiff paid the judgment and thereafter instituted this action. The record of the judgment in the Benton County Case was introduced in evidence.</p>

From Hood River: William Bradshaw, Judge. Suit by Martin Dragseth against A. I. Mason. From a decree denying relief,- plaintiff appeals. Department 2. Statement by Mr. Justice Bean. This is a suit to restrain the defendant from obstructing a stream so as to back water onto plaintiff’s land. From a decree denying relief to the latter, he appeals.

<p>From Multnomah: William Galloway, Judge.</p> <p>Suit by the Golden Rod Milling Company, a corporation, against Joseph Connell and Tom M. Word, as sheriff of Multnomah County, Oregon. From a judgment in favor of defendants, plaintiff appealed.</p> <p>Department 1. Statement by Me. Justice Benson.</p> <p>This is a suit to restrain proceedings under a writ of execution. The substance of the complaint is that on February 20, 1914, defendant Joseph Connell obtained a judgment against Acme Mills Company, Inc., a corporation, for a total of about $5,800, and on April 15,1914, the defendant sheriff attempted to levy upon certain tools and machinery in plaintiff’s mill and then used by it in the manufacture of cereal breakfast foods; that the sheriff placed a caretaker over such property and left the same in place as installed and operated in plaintiff’s mill, but that defendants now threaten to tear out such machinery and appliances and remove the same for sale under said execution. It is then alleged that the claim of defendant Connell is substantially to the effect that the property attempted to be levied upon was formerly a part of the plant and property operated by the Acme Mills Company which sold and transferred it to Acme Mills Company, Inc., some time in the year 1910; that thereafter in 1911, the latter sold the same to plaintiff and that he contends that it is the property of the Acme Mills Company and the Acme Mills Company, Inc. Then follow allegations of irreparable injury and of absolute ownership and possession in plaintiff for more than three years and a prayer for a perpetual injunction. After some admissions and denials, the defendants set up an affirmative answer wherein they plead the judgment of the defendant Connell against the Acme Mills Company and the Acme Mills Company, Inc., the issuance of the execution; and that the sheriff levied upon the property described in the complaint by taking it into his possession. It is then alleged that the sale of the property levied upon was made in violation of the bulk sales law, by reason of the fact that it was effected without notice to the defendant Connell, who was at the time a creditor of the Acme Mills Company to the extent of the judgment afterward obtained.</p> <p>On December 18, 1914, the cause was tried and on February 25,1915, the court made and filed findings of fact and conclusions of law and on the same day defendants filed an amended answer containing a second further and separate answer which alleged actual fraud in the transfer of the property from the Acme Mills Company, Inc., to the plaintiff. On March 25, 1915, a decree was entered in favor of defendants from which plaintiff appeals.</p>

From Lane: Jambs W. Hamilton, Judge. This is an action of replevin by A. J. Mishler against J. M. Edmunson, wherein the jury returned a verdict in favor of plaintiff, from which verdict and the judgment rendered thereon, the defendant appeals. Department 1. Statement by Mr. Justice Burnett.

<p>From Union: John W. Knowles, Judge.</p> <p>In Banc. Statement by Mr. Justice Burnett.</p> <p>This action is one in the usual form charging the defendant with the conversion of 15 shares of stock in the Union County Farm Company, a corporation, of the value of $9,812.50, the property of the plaintiff, to his damage in that sum.</p> <p>The answer denies the whole complaint, except as otherwise stated, and then in substance avers that the plaintiff being the owner of the stock mentioned, sold the same to a brother of the defendant taking from the vendee an option to repurchase it on a certain date at a stipulated price and that this transaction constitutes the conversion described as a cause of action.</p> <p>Substantially the reply controverts the defendant’s pleading so far as inconsistent with the complaint and in addition thereto declares:</p> <p>“That plaintiff at no time bargained and sold said certificate of stock to John Gr. Johns, and has never at any time seen said John Gr. Johns and did not know of said John Gr. Johns until about the 20th day of March, 1914; that no lien as claimed by said John Gr. Johns or by defendant has ever been foreclosed and on the 22d day of March, 1915, plaintiff, in writing offered to pay defendant and said John Gr. Johns the sum of $1,440.00, which is the sum of $1,382.73 with interest thereon from the said 10th day of December, 1913, until the date of said offer of payment. That the defendant thereupon refused to return the said certificate of stock upon demand by this plaintiff and still refuses so to do.”</p> <p>The outcome of a jury trial was a judgment for the plaintiff, from which the defendant appeals.</p>

From Multnomah: Thomas J. Oleeton, Judge. This is an action hy Max Holtz and Aaron Holtz against William P. Olds, Hardy 0. Wortman and Charles W. King. From a judgment for defendants, plaintiffs appealed. Department 1. Statement by Mr. Justice Burnett. Mentioned in this litigation is a corporation called Olds, Wortman & King. For convenience it will be styled the corporation.

<p>Chattel Mortgages — Priorities—Landlord’s Lien — Replevin.</p> <p>1. ■ Where a landlord had a lien on crops under the terms of the lease to secure promissory notes taken for rent, and gave such notes to a bank for collection, and the bank subsequently with notice of landlord’s claim took a chattel mortgage upon the crops, the landlord could have recovered the crops in replevin, alleging himself to be the owner and proving the averment by showing that he had a lien upon the property as against the chattel mortgagee who had actual notice of his claim, although the lien may not have been recorded.</p> <p>Landlord and Tenant — Lien for Rent — Proceeds of Property.</p> <p>2. By virtue of his qualified property in the crop, the landlord was authorized to follow it as far as he could trace it, and to sue at law for substituted property, and it having been converted into money, his right of property attached to the money at his option to the extent of his lien on the crop from which the cash was derived.</p> <p>[As to landlord’s lien on tenant’s property for rent, see note in 119 Am. St. Rep. 122.]</p> <p>Setoff and Counterclaim — Subject Matter — Claims Arising on Contract.</p> <p>3. Under Section 74, L. O. L., providing that a counterclaim authorized by Section 73 must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in an action arising on contract or any other cause of action arising also on contract, and existing at the commencement of the action, where a landlord took promissory notes from his tenant secured by the terms of the lease by a first lien on the crops and placed such notes with a bank for collection, and the bank with notice of sueh lien subsequently took a chattel mortgage on the crops, and when the crops were sold took the money and applied it to the payment of its mortgage instead of crediting it on the notes, in a suit by the bank against the landlord upon a note, the landlord was entitled to assert his claim to the proceeds by way of counterclaim upon an implied contract as for money had and received by the third person to the landlord’s use.</p> <p>Action — Waiver of Tort.</p> <p>4. The chattel mortgagee having been fully aware of the landlord’s property in the money, and having gained possession of the money which belonged to the landlord, although an action in tort for damages! would lie upon sueh transaction, the landlord had an election to proceed upon an implied contract as for money had and received to his use.</p>

<p>Insurance — Avoidance—Estoppel—Physician’s False Answers in Application.</p> <p>1. If an applicant for life insurance makes truthful statements to medical examiner, who, without applicant’s knowledge, changes answers to questions in application to make it appear that insured is a safe risk, insurer will be liable on the policy issued in consequence of the deceit of its agent.</p> <p>Insurance — Aetion on Policy — Reply—Knowledge of False Statements in Application — “Collusion.”</p> <p>2. In aetion on a life policy, reply stating that insured signed application without “collusion” with medical examiner did not allege insured’s lack of knowledge of physician’s statements therein, the word “collusion” meaning a secret agreement and co-operation for a fraudulent or deceitful purpose; a playing into each other’s hands; deceit; fraud.</p> <p>Insurance — Action on Policy — Sufficiency of Evidence — Knowledge of False Statements in Application.</p> <p>3. In an action on life policy, evidence held to justify inference that insured truthfully answered medical examiner’s questions, and the latter changed answers in application -without insured’s knowledge.</p> <p>[As to effect of insurer’s agent inserting in application false statements or answers by insured, see note in 9 Am. St. Rep. 229.]</p> <p>Pleading — “Aider by Verdict.”</p> <p>4. The absence from a written statement of facts constituting a cause of aetion or defense of a material averment will not be supplied by a verdict, but such finding will cure a defective statement in a pleading, the principle of the rule being that, where pleading is sufficiently general to comprehend matter so essential to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of the statement of such matter in express terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation is complete or imperfeet; but, where a material allegation is wholly omitted, it cannot be presumed that any evidence referring to it was offered on the trial.</p> <p>Pleading — Aider by Verdict — Action on Life Policy.</p> <p>5. In action on a life policy, where reply stated that medical examiner’s misstatements in application were made without “collusion” instead of that they were made without insured’s knowledge, a verdict for plaintiff cured the imperfection, since, if the matter had been called to the attention of the trial court, an amendment would probably have been allowed.</p> <p>Fraud — Allegations in General.</p> <p>6. A pleading alleging fraud must aver falsity of representations, defendant’s knowledge thereof, that they were made with intent to defraud, and that the party seeking relief relied thereon.</p> <p>Insurance — Action on Folicy — Sufficiency of Reply — Fraud Inducing Release.</p> <p>7. In action on life policy the reply was insufficient to show that beneficiary was fraudulently induced to execute alleged release, where it failed to charge that insurer knew falsity of representations, or that they were recklessly made, or that they were made with intent to deceive.</p>

From Douglas: George F. Skipworth, Judge. Action by H. P. Marks against the First National Bank of Roseburg, wherein a judgment was rendered on the verdict of a jury in favor of defendant, and plaintiff appealed. Department 1. Statement by Mr. Justice MoCamant. This is an action brought by plaintiff on his own behalf and as assignee of three of his relatives, to recover alleged balances of their deposits with the defendant.

<p>From Tillamook: George R. Bagley, Judge.</p> <p>This is an appeal from a judgment rendered in favor of plaintiffs, A. E. Holden and Ethel Holden, husband and wife, and against the defendants, A. F. Coats Lumber Company, a corporation, and the -Coats Driving and Boom Company, a corporation.</p> <p>In Banc. Statement by Mr. Justice Benson.</p> <p>Plaintiffs are the owners of 30 acres of farming land in Tillamook County through which the Tillamook River flows, and in its course through the land it makes what may he called a horseshoe bend. The substance of the complaint is that the two defendant corporations wrongfully and without plaintiffs’ consent entered upon their land and changed the channel of the river by digging a ditch across the open end of the horseshoe bend and dumping large quantities of earth and rock into the bed of the stream, thereby flooding their land and washing away the soil to their damage in the sum of $2,500.</p> <p>The A. F. Coats Lumber Company answering separately, denied the allegations of the complaint.</p> <p>The Coats Driving and Boom Company in its answer admits the digging of the ditch but denies that it acted wrongfully or without the consent of the plaintiffs, and denies that injury resulted therefrom. It then alleges that the ditch was dug with the consent and approval of plaintiffs and was, in fact, an actual benefit and protection to plaintiffs’ land; that the ditch was dug in a careful manner, of sufficient capacity to provide for carrying the ordinary flow of the river, but that during the winter seasons of 1915 and 1916, an unusual and extraordinary flow of water occurred in the river, and extraordinary storms and rainfall ensued raising the waters of the stream to an unusual height, and that if plaintiffs’ land was flooded and damaged it was not because of any act of defendants, but because of the unusual floods.</p> <p>A reply being filed a trial was had resulting in a verdict and judgment for plaintiffs in the sum of $585, from which defendants appeal.</p> <p>Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).</p>

<p>Prom Multnomah: Harry H. Belt, Judge.</p> <p>Suit by Eugene Marmeni against Henry J. Bellarts to rescind a sale of certain real property and praying for other equitable relief. The defendant obtained the decree in the lower court and plaintiff appeals.</p> <p>Department 1. Statement by Mr. Justice Harris.</p> <p>This is a suit to rescind a sale of real property, to cancel a mortgage and note and to recover the payments made on the purchase price. H. J. Bellarts owned land in the city of Portland upon which was located a large ten-room dwelling-house. The premises are described thus: Lot 6 in Block 4 in Beacon Heights and also a strip 30 feet in width along the eást end of lot 6. Bellarts conveyed by warranty deed lot 6 and the 30-foot strip along the east end of the lot “all according to the duly recorded map and plat thereof as the same appears of record in said Multnomah County, Oregon,” to Eugene Marmeni on March 15, 1912, for the agreed price of $3,750, of which $600 was paid in cash, and Marmeni paid the remainder of the purchase price by giving his promissory note for $3,150, and a mortgage on the realty as security. The principal sum' of the note with interest was made payable in monthly installments of not less than $25 commencing with April 15, 1912. Marmeni at once took possession, rented the premises and received the rents. He paid the monthly installments on the note until and including the month of June in 1914. In August, 1914, Marmeni tendered a deed together with the rentals collected by him and demanded that Bellarts cancel the note and mortgage and return the payments made by him. Upon the refusal of Bellarts to comply with the demand, Marmeni commenced this suit to rescind the sale, on the ground that he had been induced to purchase by misrepresentations concerning the location of the boundaries of the premises. The defendant denied the charge of fraud, alleged an affirmative defense and also prayed for a foreclosure of the mortgage. The decree of the trial court was for the defendant and the plaintiffs appealed.</p>

<p>From Marion: "William Galloway, Judge.</p> <p>Application of Grace E. Buster for the support of two minor children under the Mother’s Pension Act. From an allowance of $17.50 per month made by the Circuit Court, the defendant Marion County appealed.</p> <p>In Banc. Statement by Mr. Justice Benson.</p> <p>The Juvenile Court of Marion County made an order allowing plaintiff a pension of ten dollars a month for the support of herself and two children, both under the age of sixteen years, under the provisions of what is known as the Mothers’ Pension Act, Chapter 42, Laws 1913, as amended by Chapter 90, Laws 1915. Prom this order plaintiff appealed to the Circuit Court, contending that the Juvenile Court erred in finding that the children were not wholly dependent upon the labor of the mother for their support by reason of the fact that she owned a half-acre tract of land about three miles east of Salem with a dwelling-house and other buildings thereon and, in addition to a vegetable garden, kept chickens. Upon a trial in the Circuit Court, a decree was entered allowing plaintiff a pension of $17.50 per month, dating from May 4, 1916, the date of her first application, and the county appeals.</p> <p>Submitted on briefs under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi).</p>

<p>Mortgages — Agreement to Surrender Mortgage and Note — Sufficiency of Evidence.</p> <p>1. In suit to cancel a note and mortgage, evidence held sufficient to sustain finding that defendant agreed to surrender the note and mortgage.</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>On motion to dismiss appeal. Motion sustained and appeal dismissed.</p>

From Multnomah: Robert G. Morrow, Judge. Suit by the Portland Gas and Coke Company, a corporation, against A. Giebisch and F. Joplin, partners doing business under the firm name and style of Giebisch & Joplin, in which a decree was rendered in the Circuit Court dismissing the complaint and plaintiffs appealed. Decree reversed and judgment entered for $1,242.91 and costs and disbursements. Department 1. Statement by Mr. Justice Mc-Camant.

From Clackamas: James IT. Campbell, Judge. This is au action by William P. Roberts against Donald Bodley, originating in an alleged sale and purchase of a horse and culminating in a lawsuit. From a verdict in favor of defendant, plaintiff appealed. In Banc. Statement by Mr. Justice Burnett. The plaintiff sues to recover from the defendant $150 alleged to be the reasonable and agreed price to be paid for a mare which the plaintiff says he sold and delivered to the defendant.

From Clackamas: James H. Campbell, Judge. TMs is an action by M. L. White against the Portland Gas & Coke Company, a corporation, for an injury caused by defendant’s alleged negligence. There was a jury trial resulting in a verdict in favor of defendant, and from granting a new trial on motion of plaintiff, defendant appealed. Department 1. Statement by Mb. Justice Bubnett.

Original proceeding in Supreme Court. In Banc. Statement by Mr. Justice Moore. The plaintiffs, S. Benson, W. L. Thompson and E. J. Adams, as the State Highway Commission, instituted in this court a proceeding against the defendants, James Withycombe, Ben W. Olcott, and Thomas B. Kay, the Governor, Secretary of State, and State Treasurer, respectively, as the State Board of Control, to compel them to issue and sell state bonds.

From Marion: William Galloway, Judge. Department 2. Statement by Mb. Justice Habéis. This suit involves the validity of a local assessment for a street improvement. Notwithstanding a remonstrance filed by certain property owners the city entered into a contract for the paving of South 12th Street between Mission Street and the south city limits; and upon the completion of the improvement a special assessment was levied upon the abutting property for the cost of the pavement.

<p>From Marion: William Galloway, Judge.</p> <p>This is a suit by J. H. Albert against tbe City of Salem. From a decree in favor of plaintiff, the defendant appealed.</p>

<p>Mortgages — Foreclosure—Judgment—Conclusiveness.</p> <p>1. Where, in a suit to foreclose a conveyance treated as a mortgage, the Supreme Court decreed strict foreclosure, to be avoided upon payment of the amount due within 90 days, defendants did not lose their right to recover rents and profits collected by the mortgagee pending the appeal by failing to apply to the trial court when the mandate was sent down to have the amount of sueh rents and profits credited on the sum to be paid for redemption, as the determination-of that issue would have been equivalent to the institution of an action at law, and the defendants, having only 90 days within whieh to redeem, were not required to speculate upon the trial of sueh issue.</p> <p>Judgment — Pleading Former Adjudication — Sufficiency.</p> <p>2. In a suit to foreclose a conveyance treated as a mortgage, the judgment was modified on appeal so as to deny attorney’s fees. Thereafter the mortgagor’s assignee sued to recover rents and profits collected by the mortgagee pending the appeal, and the mortgagee pleaded the decree in the foreclosure suit in bar, setting forth copies of the pleadings, decree, mandate, ete., as exhibits. By way of recoupment and counterclaim the mortgagee sought to recover attorney’s fees and certain other expenses. The reply alleged that the question whether defendant was entitled to recover the sum so claimed ought to have been litigated in the former action, and referred to the exhibits attached to the answer, thereby making sueh exhibits a part thereof and alleged that by reason of such adjudication defendant was estopped from claiming such sums. Held, that the reply was sufficient in details to present the question of former adjudication.</p> <p>Judgment — Conclusiveness—Persons Concluded.</p> <p>3. A judgment or decree is conclusive, not only on those who are parties to the action or suit, but also on all persons in privity with them.</p> <p>[As to the conclusiveness of a judgment upon persons not parties to the action, see note in 2 Am. St. Rep. 876.]</p> <p>Judgment — Conclusiveness—Identity of Causes.</p> <p>4. The test of identity of causes as bearing upon the question of res judicata is the identity of the facts essential to their maintenance.</p> <p>Judgment — Conclusiveness—Parties Concluded.</p> <p>5. Where, in a mortgage foreclosure suit, attorney’s fees were denied on appeal, the judgment was conclusive in a subsequent action by the mortgagor’s assignee against the mortgagee in which the mortgagee counterclaimed for and sought to offset such attorney’s fees, and no sum could be allowed or offset for such fees.</p> <p>Pledges — Care of Property — Reimbursement.</p> <p>6. Mortgagees assigned the mortgage and secured notes to a bank as collateral security for a debt. The mortgagors were unable to pay and conveyed the land to the bank, taking an option to repurchase, which they did not exercise. The bank canceled the notes and mortgage and surrendered them. An option to repurchase was subsequently given the mortgagees, who failed -to exereise it, and the bank foreclosed, treating the conveyance to it as a mortgage. The bank had taken possession of the land and received the rents, issues, and profits, and the mortgagees sued to recover rents and profits received subsequent to the decree in the foreclosure suit. Seld, that the bank was entitled to an allowance of sums paid by it in earing for and superintending the management of the farm under the general rule that a trustee, though not entitled to compensation for services performed personally in discharging the trust, may recover the reasonable value of services of others employed by him.</p>

<p>From Union: John W. Knowles, Judge.</p> <p>In Banc. Statement 'by Mr. Justice Moore.</p> <p>This is a suit to enjoin trespasses upon real property. Tbe complaint states, in effect, tbat tbe plaintiff, Camp Carson Mining and Power Company, is an Oregon corporation and tbe owner and entitled to and in tbe possession of a group of placer mining claims, containing 1,440 acres of nnpatented land, in Union County, Oregon, commonly known as tbe Camp Carson Mines, of wbicb tract 290 acres are particularly described ; tbat it is tbe owner of tbe right to use all tbe water of tbe Grande Eonde Eiver, diverted at a point on tbe northwest quarter of tbe northwest quarter of section 23, in township 6 south of range 36 east of tbe Willamette Meridian, and conducted in a ditch and flume to a point near tbe center of section 15, in tbat township and range, where it is and for a long time has been used in operating mines; tbat tbe defendants, M. A'. Stephenson and H. W. EeDell, in tbe fall of 1914 unlawfully tore down a bouse belonging to tbe plaintiff and converted tbe lumber to their own use; tbat on April 15, 1915, they unlawfully cut tbe dam, whereby the water was diverted from the river into the ditch and flume referred to, and converted the lumber in the flume to their own use; that they unlawfully cut a ditch across a road owned by the plaintiff, and threaten to continue such trespasses.</p> <p>The answer controverts the material averments of the complaint, and alleges, in effect, that the house referred to stood on their mining ground; that they were the owners of the ditch and flume mentioned and had the legal right to intermeddle therewith and to remove the lumber therefrom; and that the ditch which interfered with the road was dug on their own mining land and the excavation was covered with a bridge.</p> <p>The reply put in issue the allegations of new matter in the answer, whereupon the 'cause was tried resulting in a decree dismissing the suit, and the plaintiff appeals.</p>

<p>From Union: John W. Knowles, Judge.</p> <p>This is a suit by E. J. Stuart against the Camp Carson Mining & Power Company, a private corporation, and others, to foreclose liens upon mining property of the defendant company. From a decree allowing a portion of plaintiff’s demand, the mining company and Turner Oliver have appealed.</p> <p>In Banc. Statement by Mr. Justice Burnett.</p> <p>The Camp Carson Mining & Power Company is a corporation said to have conducted a general mining and sawmill business on about 1,440 acres of unpatented placer mining ground in Union County, owning and possessing certain buildings thereon, together with ditches, flumes, and machinery used in operating the mines. For himself the plaintiff alleges in substance that he performed work and labor as a mechanic for the company upon the mining property at the agreed and contract price of $4 a day covering a certain number of days in April, May, and June, 1915, totaling $208.80, against which he allows a credit of $67.45 by supplies and cash, leaving a balance of $141.35. Then follows in the original complaint this allegation:</p> <p>‘ ‘ That plaintiff performed the last of said labor and ceased to work on said property on the said 8th day of June, 1915, and thereafter towit ou the 22d day of July, 1915, duly prepared and verified his notice and claim of lien for the whole of said sum of $141.35, upon the whole of said described property, in the form and manner provided by law; and thereafter, towit on the 23d day of July, 1915, duly filed said notice and claim of lien in the office of and with the county clerk of Union County, State of Oregon, who then and there duly recorded said notice and claim of lien in Book D, Record of Mechanics ’ Liens of said county, at page 428 thereof, where said claim and notice of lien ever since has remained, and still remains so of record, that said record was and is a record kept by said clerk for the purpose of recording therein such liens, and that said clerk then and there duly indexed the record of said notice and claim of lien, in the manner and as deeds and other conveyances are required by law to be indexed.”</p> <p>He avers that no part of the above-mentioned balance has been paid by the company or anyone else and that the whole thereof remains due, together with interest thereon at the rate of 6% per annum from June 8,1915, until paid; that he paid $4.20 for filing and recording the lien, and that the sum of $50 is a reasonable amount to be allowed him as attorney’s fee for foreclosing the lien. He also declares as assignee on twenty-one other lien claims for labor performed and materials furnished to the defendant mining company by other parties. The form of pleading is the same in each count.</p> <p>A general demurrer by the company and Turner Oliver, also defendant, against the original complaint having been overruled, they filed an answer denying all the allegations of each count except the corporate character of the company and its ownership of the property mentioned.</p> <p>After all the testimony was in and the case had been finally submitted the court permitted the plaintiff to file an amended complaint. The change consisted in adding to the quoted allegation above set out in each count these words:</p> <p>“A true copy of said notice of lien is hereunto attached, marked ‘Exhibit A’ and made a part of this amended complaint.”</p> <p>The answering defendants move to strike out the new pleading on the ground that it</p> <p>“does not purport to add any name or to strike out the name of any party from the pleading, and does not purport to correct any mistake in the name of any party or a mistake in any other respect, and does not purport to make the pleading conform to any facts proved, but substantially changes the cause of action after the case has been tried and submitted, * * and the court has no jurisdiction to consider such pretended amended complaint nor any discretion to permit the same to be filed, and no motion was attached to said pretended amended complaint asking permission of the court to file the same.”</p> <p>This motion was overruled and afterwards the defendants who appeared answered the amended complaint as before, traversing it and setting up the title of Turner Oliver to the property by virtue of a foreclosure of mortgage upon the property.</p> <p>The reply put in issue all the new matter. The court made findings of fact and conclusions of law followed by a decree which rejected the claims assigned to plaintiff by Rudolph F. Peterson, S. S. Somerville, Gordon Land, F. F. Turner (on his second claim), Mrs. J. R. Somerville, and Hans Olsen. It allowed a portion of the plaintiff’s claim and sustained the demands of Axel Wengren, O. J. Burnett, Charles Denny, J. A. Shira, F. F. Turner (on his first claim), Cecil Merrill, L. W. Becker, Christy Nelson, Earl Taylor, B. E. Bindley, Elmer Somerville, J. B. Somerville, W. W. Dill, La Grande Grocery Company, and Sawyer-Clark Company, some in full and others only in part. The mining company and Turner Oliver alone appealed, there being no complaint of the decree on the part of the plaintiff or the other defendants, the latter of whom defaulted.</p>