Volume 85 — Oregon Reports

From Jackson; George F. Skipworth, Judge. Department 1. Statement by Mr. Justice Harris. This is an action for damages. William Scott and A. B. Saling signed a writing for the sale of 1,365 acres of land owned by Scott. For the sake of convenience the writing will be designated as an option.

<p>Corporations — Subscription Agreement —■ Construction — “Denouncement.”</p> <p>1. An instrument, reciting that two persons have “denounced” ten mineral claims in the state of Panama, and stating that the owners of the oil field offer a one-third interest payable on receipt of a telegram from one of them that an opportunity is open to subscribe for stoek in the proposed company, and providing for a preliminary payment to be telegrahed to the order of such owner, the balance to be due and payable as soon as the first lease shall be drawn which would bind the lessee to drill and develop the land, and that as soon thereafter as the survey was completed' and titles obtained, there should be organized an ownership company to own and control the company, and stock issued to different subscribers in proportion to the amounts subscribed and paid in, and providing that the signer subscribes the amount set opposite his name to the Panama oil fund, amounted to a preliminary subscription to the stoek of a corporation to be organized as a holding company for the purpose of exploiting the oil property; a “denouncement” being a elaim to work an alleged abandoned mine, reported to the authorities or the report of the discovery and pre-emption of and claim to a new mine.</p> <p>Corporations — Eight of Stockholders — Action Against (Promoters.</p> <p>2. Where a person made a preliminary subscription to stock of a corporation to be organized and the money was applied to fully paying up the shares of stock which were issued, the money so paid became funds of the corporation in the hands of the promoters; and, in the absence of any showing that the corporation has been remiss in its duty, or its controlling officers have refused to act, such person has no cause of action against one of the promoters directly for a recovery of his money paid on the ground that such promoter has never caused land to be conveyed to the corporation as contemplated.</p> <p>[As to promoters and their relations with corporations, see notes in 17 Am. St. Eep. 161; 85 Am. St. Eep. 385.]</p> <p>Corporations — Stockholders — Action Against Promoter — Necessary Parties.</p> <p>3. In an action by one who subscribed for stock before the formation of a corporation, against one of the promoters who received the money, another promoter, who did not receive any of the money sought to be recovered, was not a neeessary party defendant merely because he has an interest in the embryo title to the land.</p> <p>Trusts — Trust Agreement Concerning Band — Statute of Prauds.</p> <p>4. In view of Section 804, L. O. L., providing that no estate or interest in real property other than a lease for a term not exceeding one year, nor any trust or power concerning such property can be created, transferred or declared otherwise than by operation of law or by a conveyance or other instrument in writing, etc., in an action by a subscriber to corporate stoek against a promoter to recover amount paid, the defendant could not rely upon a trust agreement regarding the property executed by other stockholders which the plaintiff did not sign.</p> <p>Corporations — Stockholders—Action Against (Promoters — Defense.</p> <p>5. In an action by a subscriber to stock against one of the promoters of the corporation to recover the money paid, on the ground that defendant had not secured title to oil lands and conveyed the same to the corporation as agreed, the fact that defendant and the other promoter had been diligent in their efforts to acquire title was not a defense, in the absence of a showing when they should have acquired title.</p>

From Jackson: Frank M. Calkins, Judge. Action by Charles F. Young against George F. King. Plaintiff filed demurrers to defendant’s pleas in abatement and same being sustained the defendant refused to amend, resulting in. a judgment as prayed for in the complaint and defendant appealed. Reversed and remanded. Department 1. Statement by Mr. Justice Burnett.

From Marion: William Galloway, Judge. In Banc. Statement by Ms. Justice Benson. Upon motion to dismiss appeal. Tbe defendant Davis obtained a judgment in an action for tbe recovery of money against John P. Ranzau and Dorothea V. Ranzau, Ms wife, and thereafter had an execution issue thereon with directions to the sheriff to levy upon and sell certain real property, in satisfaction of such judgment.

From Multnomah: Calvin U. G-antenbbin, Judge. Joe Marastoni was convicted and fined by the municipal court of the City of Portland for violating the law relating to the manufacture of intoxicating liquors and appealed. Affirmed. Department 2. Statement by Me. Chief Justice McBeidb. The defendant was complained against in the municipal court of the City of Portland for a violation of Chapter 141 of the General Laws of 1915, relating to the manufacture of intoxicating liquor.

From Multnomah: George N. Davis, Judge. The defendants, August Fetsch and T. F. Ward, were arrested, tried and convicted in the Justice’s Court of Portland of assault and battery and appealed to the Circuit Court, where they were again convicted, and again appeal. The facts and errors complained of are set forth in the opinion of the court.

From Multnomah: William N. Gatens, Judge. Action by W. C. Alvord, W. H. Beharrell and E. B. Corbett, trustees in bankruptcy of the estate of I. Gevurtz & Sons, against M. C. Banfield, to recover a deposit to secure the payment of rent. From an order dismissing the action, plaintiffs appeal. Beversed. Department 2. Statement by Mr. Justice Bean.

<p>Indians — Lease by Allottee — Approval—“Condition Precedent.”</p> <p>1. A provision in a lease by an Indian allottee that it should become binding only after approval by the Indian reservation superintendent, or Secretary of the Interior, is a “condition precedent.”</p> <p>Contracts — “Condition Precedent.”</p> <p>2. A “condition precedent” is a condition which calls for the performance of some act or the happening of some event after the terms of the contract have been agreed upon, and before the contract shall take effect.</p> <p>Frauds, Statute of — Parol—Modification.</p> <p>3. Ordinarily, an agreement within the statute of frauds cannot be varied by parol.</p> <p>Frauds, Statute of — Parol—Modification—Estoppel.</p> <p>4. Where a parol modification of a lease has been acted upon by a party to his disadvantage, the other party cannot set up the statute of frauds and stand on the original agreement.</p> <p>Indians — Lease—Approval—Conditions Precedent — Waiver.</p> <p>5. Where a lease by an Indian allottee provided that it should not beeome effective until approved, evidence that the lessee advanced the lessor money, furnished supplies, and did some work on the property, all in reliance upon the lease, makes the lessor’s waiver of the condition regarding approval, etc., a jury question.</p> <p>[As to waiver of forfeiture of lease, see note in 47 Am. St. Rep. 197.]</p>

<p>Contracts — Discharge by Bankruptcy.</p> <p>1. Where an orchard company, which had contracted to sell orchard lands, went into bankruptcy, the bankruptcy did not impair the obligations of the company’s contract with its vendee, nor lessen his privileges under it, and did not foreclose his interest in the land; he not being compelled to take title on less favorable terms than those for which he stipulated.</p> <p>Vendor and Purchaser — Assumption of Vendor’s Inabilities.</p> <p>2. Where an orchard company contracted to sell orchard lands the contract containing stipulations, and went into bankruptcy, and a third person purchased the lands of the orchard company subject to the liens and encumbrances of its prior contracts of sale, expressly agreeing to assume them as part of the purchase price, the third person placed himself precisely in the situation of the company at the outset of the transaction between it and its vendee, and was bound to perform the company’s covenants; if he desired to avoid such result, he should have foreclosed his contract with the party who with himself originally owned the land as tenants in common, whereby he might rid his own half of the land of the obligations of his agreement to sell his half to his cotenant, who organized the orchard company.</p> <p>Vendor and Purchaser — Breach of Contract l>y Vendor’s Successor.</p> <p>3. Where one cotenant agreed to sell orchard lands to another, and the latter organized an orchard company and conveyed the whole tract to it, and it contracted to sell to plaintiff on certain terms and became bankrupt, the first eotenant buying the lands at trustee’s sale subject to the company’s contracts of sale, expressly assuming them, and plaintiff vendee preferred a claim for damages for the neglect of the company and the first cotenant to cultivate the orchard lands as required by the orchard company’s contract to sell, and the first eotenant repudiated the obligations originally resting upon the company, his conduct constituted what plaintiff was entitled to consider a breach of the contract to sell the orchard lands.</p> <p>[As to estoppel on purchaser to impeach obligation of vendor that he has assumed, see note in Ann. Cas. 1914A, 185.]</p> <p>Vendor and Purchaser — Foreclosure of Vendee’s Lien.</p> <p>i. A vendee acquires an estate in land under an executory contract of sale in proportion as he pays the purchase price and is not in default in performance of his covenant; the vendor holding the legal title to such extent in trust for the vendee. When the seller repudiates or fails to perform, the vendee has the right to get out of the land what he put into it by foreclosing his vendee’s lien.</p> <p>Vendor and Purchaser — Rescission—Placing in Statu Quo.</p> <p>5. Where land was contracted to be sold, and, on the vendor corporation’s bankruptcy, an original owner of the lands as cotenant •bought at trustee’s sale, subject to the company’s contracts to sell, expressly assuming such liens and encumbrances, when sueh purchaser sought to rescind the company’s contract to sell, he should have put the buyer in statu quo.</p> <p>ON PETITION FOR REHEARING.</p> <p>Vendor and Purchaser — Foreclosure of Vendee’s Lien — Effect of Denial of Liability.</p> <p>6. Where vendor had absolutely denied any liability under and repudiated contract with vendee in proceedings for foreclosure of vendee’s lien, vendor could not claim vendee’s failure to cultivate premises as agreed upon.</p>

<p>Executors and Administrators — Action on Quantum Meruit — Evidence.</p> <p>1. In an action on a quantum meruit for services rendered a decedent as stenographer, testimony that an agreement was made between the decedent and plaintiff whereby he agreed to pay her $50 a month for her services, the entire payment to be made five years after she entered Ms service, was admissible as material to the measurement of damages.</p> <p>Evidence — Declarations of Decedent — Statute.</p> <p>2. Such testimony was admissible under Section 710, L. O. L., providing that the declaration, act or omission of a deceased person, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest.</p> <p>Witnesses — Declarations of Decedent — Plaintiff as Witness to Declarations — Statute.</p> <p>3. Plaintiff was entitled to testify to decedent’s declarations under Section 732, L. O. L., specifying persons who cannot testify.</p> <p>Witnesses — Action Against Administratrix — Declarations of Decedent —Admissibility.</p> <p>4. Plaintiff’s testimony as to decedent’s declarations made the declarations admissible on behalf of defendant administratrix.</p> <p>[As to waiver by personal representative of incompeteney of witness to testify as to transactions with the deceased, see note in Ann. Cas. 1913A, 682.]</p> <p>Executors and Administrators — Action for Services — Evidence.</p> <p>5. In the absence of evidence that all business transactions at decedent’s office were noted on certain calendars for the years 1909 to 1913, inclusive, the calendars, on which deeedent had made notations of the business transacted in his office from day to day, there being many days on which no notations were made, had no tendency to prove the small volume of work done at the office, and were properly excluded.</p> <p>Executors and Administrators — Action on Quantum Meruit — Evidence as to Value of Services.</p> <p>6. In an action on a quantum meruit against decedent’s administratrix for services rendered deeedent as stenographer, though evidence of a contract between plaintiff and deeedent was admissible, the agreement was not indispensable to recovery by plaintiff, and plaintiff was entitled to have the jury consider other testimony bearing on the reasonable value of her services.</p> <p>Limitation of Actions — Statute of Limitations — Deferred Payment.</p> <p>7. Where a stenographer agreed to work for decedent for $50 a month, payable at the end of five years, the payment did not become due until such time, and the statute of limitations did not run on the stenographer’s cause of action until six years thereafter.</p> <p>Executors and Administrators — Rendition of Services — Sufficiency of Evidence.</p> <p>8. In a stenographer’s action against an administratrix for services rendered deeedent, evidence held sufficient to sustain verdict for plaintiff.</p> <p>ON PETITION POE REHEARING.</p> <p>Executors and Administrators — Action on Claim — Condition Precedent —Presentation.</p> <p>9. An action at law on a claim against an estate must be based on the same claim as that presented to deceased’s personal representative.</p> <p>Executors and Administrators — Action on Claim — Previous Presentation.</p> <p>10. Where plaintiff’s action against an estate for personal services was for the same amount and services as her claim presented to the administratrix, it was not defeated by the fact that evidence on which she relied was not stated in the claim.</p>

<p>From Multnomah.: George N. Davis, Judge.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>This is an action broug-ht in the District Court of Multnomah County by plaintiff Ralph R. Duniway, an attorney at law, on an express contract entered into during the year 1903 between him and defendants Clarissa Wiley and Andrew C. Smith. He alleges in his complaint that defendants, in conjunction with numerous property owners similarly situated, at that time employed him to contest “all proceedings that were being taken and might he taken in the future by the City of Portland to levy and collect assessments” for a municipal improvement affecting certain property on Third Street, in Portland, Oregon; that he was to be paid for such services one third of whatever was saved on the principal of the assessment then proposed to be made, and thereafter on behalf of said property owners, he instituted suit in the Circuit Court of Multnomah County against the city, wherein, on June 28, 1907, a decree was entered canceling the assessment that had been levied against said property in the meantime and enjoining its collection. He further alleges that under its charter the City of Portland “had a right to attempt to make a reassesment at any time within ten years after instituting assessment proceedings”; that under said contract “the compensation of the plaintiff was not fully earned until ten years had expired,” namely, April 2, 1913; that the owners of the property were saved $368.53, and that under the contract plaintiff was entitled to $122.84. He admits the payment of $10 on February 29, 1904, and asks judgment for the balance of $112.84.</p> <p>In their answer defendants deny most of the material allegations of the complaint and set up a different special contract wherein, on behalf of the estate, they employed plaintiff to do the work performed at a stated price, namely, $20 if successful, and $10 if unsuccessful. The latter amount they paid and they plead the statute of limitations as to the other $10.</p> <p>The reply traverses the new matter in the answer. Upon a trial of the issues on appeal to the Circuit Court, at the conclusion of plaintiff’s evidence, a judgment of nonsuit was granted from which plaintiff appeals.</p>

From Multnomah: Calvin U. Gantenbein, Judge. This is an action by Franz H. Elling against BlakeMcFall Company, a corporation, for damages sustained by plaintiff by reason of an automobile collision. From the verdict of a jury'in favor of plaintiff, defendant appealed. Affirmed. Department 2. Statement by Mr. Justice Bean.

Prom Lane: George P. Skipwortb:, Judge. Suit by Jobn B. Coleman against Helen A. Coleman to declare void a marriage contract and to secure tbe cancellation of an assignment of a contract for tbe sale and purchase of real property made with a third party. The lower court found in favor of plaintiff and defendant appealed. Reversed and suit dismissed. Department 1. Statement by Mr. Justice Burnett.

From Jackson: Frank M. Calkins, Judge. In Banc. Statement by Mr. Justice Eakin. This is an action by the Rogue River Fruit & Produce Association against the G-illen-Chambers Company upon a contract for the erection of a building. The plaintiff alleged that by reason of the failure of the defendant to keep the terms of the contract it had been damaged in the sum of $2,000. On a trial it recovered judgment for $1,509.52.

From Multnomah: Calvin TJ. Gantenbein, Judge. Department 2. Statement by Mr. Justice Mc-Camant. This is an action for personal injuries, brought by Mary M. Houston against H. L. Keats and W. N. Jones, partners as H. L. Keats Auto Company. It appears from the evidence that on August 1, 1915, plaintiff got off a south-bound car at the intersection of Union Avenue and Broadway in the city of Portland, intending to transfer to a Broadway car.

From Multnomah: Calvin IT. Gantenbein, Judge. Action by Mollie Albright against H. L. Keats and W. N. Jones, a copartnership, doing business under the name and style of H. L. Keats Auto Company, in which plaintiff obtained a verdict in her favor and defendants appealed. Affirmed. Department 2. Statement by Mr. Justice Mc-Camant. This is an action brought to recover damages for a personal injury sustained August 1, 1915.

Department 1. Statement by Mr. Justice Benson. Suit by James A. Kelley against Oscar Anderson and Annette Anderson to foreclose an alleged mechanic’s lien. From a decree in favor of plaintiff, defendants appeal. Reversed and suit dismissed. Department 1. Statement by Mr. Justice Benson. ■ This is a suit for the foreclosure of a mechanic’s lien.

Prom Multnomali: Robert G. Morrow, Judge. Action by Sam H. Davis against tbe Liverpool & London & Globe Insurance Company, a corporation, to recover for work and labor and for alleged information furnished to tbe defendant. Prom a verdict in favor of plaintiff, defendant appealed. Reversed and remanded. ' Department 1. Statement by Mr. Chief Justice McBride. This is an action to recover tbe snm of $1,800 for services performed and information furnished to tbe defendant.

<p>Prom Multnomah: John P. Kavanaugh, Judge.</p> <p>Department 2. Statement by Mr. Justice Moore.</p> <p>This is an action to recover damages for the alleged use of slanderous words. The complaint alleges, in effect, that at Portland, Oregon, about January 16, 1915, the defendant, "William Isensee, wrongfully, maliciously, recklessly, and wantonly said in the presence of divers persons of and concerning the plaintiff, Lillie T. Webb, that she was of questionable character and repute and was conducting illicit sexual commerce with men; that between March 15th and 23d of that year the defendant, in the same manner, further said in the presence of several persons of and concerning the plaintiff that she was a “crook, perjurer, thief, and a bitch,” the meaning of which terms are undertaken to be explained; and that by reason of such statements the plaintiff has been damaged to the extent of $15,000, and is entitled to exemplary damages in the sum of $10,000, for the amount of which judgment is demanded.</p> <p>The answer denies each averment of the complaint. The cause was tried resulting in a judgment for plaintiff for $2,500, which determination was set aside and a new trial ordered.</p>

From Washington: James U. Campbell, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit for the dissolution of the marriage contract between the plaintiff and the defendant. The husband plaintiff founds his suit upon two counts.

From Marion: William Galloway, Judge. Department 2. Statement by Mr. Justice Harris. This is a suit to foreclose a purchase price mortgage. On November 23, 1912, Ferdinand M. Mickenham conveyed fifteen acres of his land to Henry H. Gralapp and his wife Amelia Gralapp for $3,375. Part of the purchase price was paid and the remainder, amounting to $1,575, was satisfied by the Gralapps giving their note secured by a mortgage on the land.

Fr,om Klamath: Delmon V. Kuykendall, Judge. In Banc. Statement by Mb. Justice Habbis. C. 0. Randolph was convicted of a violation of Section 1950, L. O. L., upon an indictment which charges that he stole a steer in Klamath County, on November 20, 1915, belonging to M. S. Mayfield. Randolph resided on a homestead in the forest reserve in Klamath County. On March 30, 1916, he was seen at his home shinning the right hind quarter of a beef.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>On motion to dismiss appeal.</p>

From Multnomah: George N. Davis, Judge. Action by H. E. Tabor against the Coin Machine Manufacturing Company, a corporation, to recover damages for an alleged personal injury. From a verdict and judgment in favor of plaintiff, defendant appealed. Reversed and remanded for a new trial. Department 1. Statement by Mr. Justice Benson.

From Tillamook: George E. Bagley, Judge. Department 2. Statement by Mr. Justice Moore. This is a proceeding by Wesley Eaney against tbe State Industrial Accident Commission and Wm. A. Marshall, Harvey Beckwitb, and Carl Abrams, tbe members thereof, to review their action in refusing to award to tbe plaintiff any compensation for the loss, by accident, of bis left band.

<p>Appeal and Error — Notice of Appeal — Necessary Party.</p> <p>1. In suit by surety on contractor’s bond to determine to whom it should pay, where judgment was rendered against the surety, and against one of the contractors and the administrator of the other contractor, the administrator was a neeessary party o,n appeal by written notice under Section 550, L. O. L., as amended by Laws of 1913, page 617; the judgment debtors presumably having the right of contribution.</p>

From Marion: William Galloway, Judge. In Banc. Statement by Mr. Justice Burnett. Toy brought an action against Gong to recover wages at $75 a month for services during a period of eight months and eighteen days as a farm laborer in raising hops.

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Bean. This suit is brought by W. E. Farrell, as assignee of the Hygienic Mattress Company, against A. E. Davis, H. H. McCarthy, R. E. Norton, Ú. A. Emery and S. B. Hendee, to recover from them as stockholders in the insolvent Mattress Company for alleged unpaid stock subscriptions. From a decree against defendant A. E. Davis for the sum of $8,945.88, he appeals.

Prom Josephine: Prank M. Calkins, Judge. Department 1. Statement hy Mr. Justice Harris. A petition for certain water users resulted in a determination made, pursuant to Sections 6635 to 6659, L. O. L., inclusive, by the state water board, formerly called the board of control, of the relative rights of the various claimants to the waters of Althouse Creek and certain of its tributaries.

From Multnomah: William N. G-atens, Judge. Action by S. E. Emerson against the Portland, Eugene & Eastern Railroad Company, a corporation, to recover damages for a personal injury. From a judgment in favor of plaintiff, defendant appealed. Affirmed. Department 2. Statement by Mr. Chief Justice McBride. This is an action to recover damages for a personal injury received by plaintiff and occasioned by a handcar upon which plaintiff was injured.

<p>Elections — Primary Election — Nature.</p> <p>1. Under the direet provisions of Section 3350, L. O. L., a primary election affords electors opportunity to express their choice of one or more candidates for an offiee to be voted for at an ensuing election.</p> <p>Elections — “General Election.”</p> <p>2. A general election is one that regularly recurs in each election precinct of the state on a day designated by law for the selection of officers, or is held in such entire territory pursuant to an enactment specifying a single day for the ratification or rejection of one or more measures submitted to the people by the legislative assembly, and not for the election of any officer.</p> <p>Elections — “General Election” — What Constitutes.</p> <p>3. An election for ratifying legislative enactments is a general election within Section 3322, L. O. L., as amended by Laws of 1917, Chapter 330, providing that, where a general election for both county and city is held on the same day, election clerks shall receive only one fee, although one of the measures submitted (Laws 1917, c. 422 § 1), pursuant to a phrase in Article IV, Section 1, of the Constitution, referred to such election as special.</p> <p>[As to constitutional or statutory provisions relating to elections as applicable to primary elections, see note in Ann. Cas. 1913A, 702.]</p>

From Jackson: Frank M. Calkins, Judge. Action by S. F. Reichert against Josephine SooySmith in which a judgment was entered on the verdict of a jury and defendant appealed. Reversed and remanded. Department 1. Statement by Mr. Justice Benson.

From Multnomah: Calvin U. Gantenbein, Judge. This is an action by the Oregon Investment and Mortgage Company, a corporation, against John Keller to recover judgment on money loaned the defendant. Defendant appealed from an order overruling motion to set aside default and judgment, unsupported by affidavit or tender of an answer. Affirmed. In Banc. Statement by Mr. Justice Burnett.

From Multnomah: Gilbert W. Phelps, Judge. Department 1. • Statement by Mr. Justice Burnett. A lengthy indictment in this case charges Joseph B. Keep jointly with William 0. Borchers with the crime of obtaining money from Frank Yan Stralen by false pretenses. Borchers was discharged from the indictment so that he could be used as a witness for the state. Keep appeals from a conviction on a verdict of guilty.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Benson. The district attorney for Multnomah County filed a complaint in the District Court for said county charging the defendant with ‘ ‘ unlawfully keeping and maintaining a place as a common nuisance,” by keeping for sale, barter and delivery, in violation of law, certain intoxicating liquors at number 890 East Yamhill Street, Portland.

From Josephine: Frank M. Calkins, Judge. In Banc. Statement by Mr. Justice Moore. This is a suit by Otis D. Leefeld against Elizabeth M. Leefeld to have a marriage declared void. The defendant, though personally served with summons and a certified copy of the complaint, failed to demur, plead or answer. Whereupon the district attorney of the proper county appeared on behalf of the state.

From Multnomah: Henry E. McGinn, Judge. In Bane. Statement by Mr. Justice Harris. This is an action on an indemnity insurance policy. The Southwestern Surety Insurance Company issued its policy to E. W. Riner and E. B. Hill, who were partners doing business under the firm name of Riner & Hill and were engaged in constructing a sewer for the City of Portland.

From Multnomah: Henry E. McGtnn, Judge. Action by the California Trojan Powder Company, a corporation, against Wadhams & Company, a corporation, in which plaintiff recovered judgment for the amount prayed for in the complaint and defendant appeals. Affirmed. Department 1. Statement by Mr. Justice Benson. This is an action for damages.

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Harris. William Henry Hollister died in January, 1912, in the State of New York, where he was domiciled, leaving a will which was admitted to probate on February 1, 1912, in the Surrogate’s Court of the County and State of New York.

In Banc. Statement by Mr. Justice Harris. J. I). Halsey brought this action to replevy an undivided one third of a crop of wheat grown and threshed on land which Halsey had verbally leased to J. D. Simmons for the year 1916. Simmons threshed and sacked the wheat, but by reason of the threshing-machine having been moved from place to place the sacks were placed in three piles on the land.

<p>Appeal and Error — Record—Transcript—Time of Filing — “Proceedings.”</p> <p>1. Where on appeal an order was made extending the time in which to file “a transcript of the testimony and proceeding” until July 10th, the word “proceedings” was broad enough to cover the entire transcript, and a filing on April 8th was sufficient.</p> <p>Note. — Appeal dismissed on stipulation September 4, 1917. Beporter.</p>

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Moore. This is an action by T. M. Askay against P. E. Maloney, T. Swennes, and the Southwestern Surety Insurance Company, a corporation, to recover damages for the death of plaintiff’s son, Walter E. Askay, which was caused by.a gunshot wound.

From Jackson: Frank M. Calkins, Judge. Department 2. Statement by Mr. Justice Moore. This is an action by F. H. Maxson against tbe Ash-land Iron Works, a corporation, to recover the possession of 1 planer, 1 resaw, 1 cut-off saw, 1 rip-saw, 30 feet of shafting, belting, and pulleys, or the sum of $500 as the alleged value thereof in case possession cannot be secured.

<p>Appeal and Error — Notice of Appeal — Parties to be Served — “Adverse Party.”</p> <p>1. In pedestrian’s action against city and its officers for injuries, where the city went out on nonsuit, failure of the other defendants to serve notice of appeal on the city was not ground for dismissal of the appeal, in that the city was an “adverse party,” within Section 550, L. O. L.</p> <p>Municipal Corporation — Streets—Failure to Repair — Liability.</p> <p>2. Under Portland city charter, empowering the council to make needful regulations to maintain public streets, it is the imperative duty of the city council to see that the streets are kept in good repair.</p> <p>Municipal Corporations — Streets—Failure to Repair — Liability.</p> <p>3. The duty of the city council of Portland to keep its streets in repair does not end with the passage of an ordinance requiring officers to examine into and report the condition of streets, but there must be some diligence to learn whether the officers perform the duties assigned.</p> <p>Municipal Corporations — Streets—Failure to Repair — Liability.</p> <p>4. The duty of a Portland councilman as to repair of streets, in the absence of actual knowledge of a defect, is performed when he has used his best efforts to provide means to keep streets in repair and to have a sufficient force of employees to report defects as they occur and to make the repairs.</p> <p>Municipal Corporations — Streets—Failure to Repair — Liability.</p> <p>5. The liability of each Portland officer for failure to make repairs to streets is personal, and depends upon the diligence which he himself exereises.</p> <p>Officers — Negligence of Inferior Officer — Liability.</p> <p>6. It is the universal rule that a public officer is not personally liable for the negligence of an inferior officer, unless he, having the power of selection, has failed to use ordinary care in the selection.</p> <p>Municipal Corporations — Streets—Failure to Repair — Liability.</p> <p>7. Section 281 of the charter of the City of Portland, which attempts to exempt the city from liability for injuries arising from defective streets and to place that liability, upon the officer by reason of whose negligence the injury occurred, does not create any new or additional obligation as against such officer, as a city official who personally neglects to perform a specific duty was always liable, irrespective of any statute prescribing such liability.</p> <p>[As to liability of municipal corporation for defects in, or failure to repair streets, see note in 103 Am. St. Rep. 257.]</p> <p>-Municipal Corporations — Streets—Failure to Repair — Liability.</p> <p>8. Regardless of charter provision exempting City of Portland from liability for injuries to pedestrians by reason of defects in streets, the city is liable on the doctrine of respondeat superior for a failure of a street inspector to repair a defeet which caused an accident.</p> <p>Municipal Corporations — Streets—Failure to Repair — Liability.</p> <p>9. While, before attempted exemption of City of Portland from liability for defects in streets, the negligence of its officers, either the council or subordinate officers, was imputable to it, sueh liability was not transferred to the shoulders of any city officer not actually or constructively negligent.</p> <p>Municipal Corporations — Streets—Failure to Repair — Liability—Notice of Defects.</p> <p>10. A defect in a street, which. was noticed by only a few residents of the immediate community, though it had existed for several weeks, was not so notorious as that the city or its officers should have known thereof, so as to charge them with negligence in failing to make repairs.</p> <p>Municipal Corporations — Streets—Failure to Maintain — Liability—■ Evidence — Admissibility.</p> <p>11. Sinee it is the Portland city engineer’s duty to inspect all streets and walks, in estimating his diligence, it is proper to show the mileage of streets in the city and the efforts made by him personally to secure a proper and complete inspection and repair.</p>

From Multnomah: Robert Gr. Morrow, Judge. Action in replevin by Oliver M. Hickey against John B. Coffey, as county clerk of Multnomah County, Oregon. From a judgment rendered upon a verdict in favor of defendant, plaintiff appeals. Reversed and remanded with directions. Department 2. Statement by Mr. Justice Moore. This action of claim and delivery was commenced in the District Court of Portland, Oregon.

From Multnomah: George N. Davis, Judge. Action by M. Kruse against H. P. Bush and A. E. Borthwick for money had and received as payments on contracts for the purchase of real property. Plaintiff elects to rescind on the ground of fraudulent representations made by the agent of defendant Borthwick. A verdict was returned and judgment entered thereon in favor of plaintiff and defendants appeal. Affirmed. Department 2. Statement by Mr. Justice Mc-Camant.

<p>Statutes — Special or Local Legislation — Punishment of Crime.</p> <p>1. General Laws of 1917, page 794, providing a license tax for dogs to be collected by the constables in the several counties declared to be subject to the law, etc., Section 10 providing that any person violating the act shall be deemed guilty of a misdemeanor, which excepts from its operation all of the territory east of the summit of the Cascade Mountains, and the counties of Josephine, Jackson, Coos, Curry, Lincoln, Tillamook, Clatsop and Columbia, is violative of Article IV, Section 23 of the Constitution, providing that the legislature shall not pass special or local laws for the punishment of misdemeanors.</p>

<p>Landlord and Tenant — Assignment of Lease — Effect.</p> <p>1. The liability of the assignee of the lessee arises out of privity of estate, and not of contract, and is confined to sueh covenants in the lease as run with the land.</p> <p>Covenants — Running With Land.</p> <p>2. Only real covenants run with the land.</p> <p>[As to what are covenants that run with the land, see note in 56- Am. Rep. 151.]</p> <p>Landlord and Tenant — Assignment of Lease — Effect.</p> <p>3. Under a lease of a creamery with which the parties attempted to include certain milk routes, covenants to keep up the milk routes did not run with the land and did not bind the assignee of the lessee.</p> <p>Landlord and Tenant — Assignment of Lease — Effect.</p> <p>4. A covenant that the lessee would operate the leased creamery plant as an independent creamery concerns the use to be made of the premises and runs with the land.</p> <p>Landlord and Tenant — Assignment of Lease — Breach of Covenant— Damages.</p> <p>5. Where the lessee of a creamery covenanted to keep up cream routes and to operate the premises as an independent creamery and damages by diminishing rental value of the premises were alleged due to his failure to operate as an independent creamery, but the witnesses ascribed the damage to the loss of the cream routes, the lessor could not recover from the lessee’s assignee.</p> <p>Landlord and Tenant — Injury to Property — Liability.</p> <p>6. Where the lessee’s assignee had possession of personalty connected with the premises, he was liable to account for it as bailee, or for its value when lost or converted.</p> <p>Landlord and Tenant — Personalty Connected With Premises — Loss— Damage — Evidence.</p> <p>• 7. Where a lessee’s assignee had possession of personalty connected with the leased premises and the same was lost, the value of the property at the inception of the lease was relevant in fixing the damage, which was the value of the property when lost.</p>

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement by Me. Justice Bean. This is an action to recover damages for the breach of a contract alleged to have been entered into by plaintiff, Oscar L. Smith, and defendant, Floyd J. Campbell, on March 6, 1914, for the sawing of the timber upon a certain forty-acre tract of land owned by defendant.

<p>Appeal and Error — Reversible Error — Admission of Incompetent Testimony.</p> <p>1. In an action for injuries alleged to have been caused by the failure of defendant railway’s servant to render suitable assistance to plaintiff disembarking from its car, permitting one familiar with the road in question to testify, over objection, that at some stations there would be good platforms and at others, used by a very small number, the platforms were rough, etc., was not reversible error; the evidence not being sufficiently material, although it may have been incompetent.</p> <p>Carriers — Safe Place to Disembark — Duty of Railway Company.</p> <p>2. It is the duty of a railway company to provide safe and convenient means for entering and leaving its vehicles, but it is not bound to exercise an infallible judgment in sueh matters.</p> <p>[As to duty of railroad companies to keep stations safe for passengers and others, see note in 29 Am. St. Rep. 55.]</p> <p>Carriers — Injuries to Passengers — Safe Place to Disembark — Questions for Jury.</p> <p>3. Whether the failure of defendant’s servants to furnish a stool for plaintiff to step on when she alighted from the car constituted negligence on the part of the railway, or whether the brakeman rendered proper and adequate support when she disembarked at the station, were questions for the jury.</p>

From Clackamas: James U. Campbell, Judge. Department 2. Statement by Me. Justice Bean. On September 19, 1914, tbe Weyerhaeuser Land Company filed with the board of equalization of Clackamas County, Oregon, its petition for the reduction of the assessment of certain lands for the purpose of taxation.

From Multnomah: John P. Kavanaugh, Judge. In Bane. Statement by Mr. Justice McBride. This is a suit to rescind a contract for the sale of timber, situated in the- State of Washington, on the ground of fraudulent representations as to the quantity of such timber and other alleged false representations materially affecting the contract.

<p>Department 1. Statement by Mr. Justice Harris.</p> <p>This suit was commenced against tbe City of Med-ford, its mayor, councilmen, recorder and treasurer, by Charles D. Colby, who is not only making certain contentions because of the methods previously pursued by the city in raising moneys with which to pay the interest on the bonded indebtedness for improvements, the expense of which had been charged to abutting property by levying special benefit assessments, but he is also attacking an alleged charter amendment known as the Hanson Plan, which was designed to enable the city to refund all its bonded and other indebtedness for paving, sewers and water-mains. After Colby had filed his complaint, and with the consent of all parties, William Stailey filed a separate complaint in this suit against the same parties who had been named as defendants in the Colby complaint; and, hence, this proceeding really involves two suits which, for convenience, have been consolidated into one suit. The assault made by tbe Stailey complaint is especially directed against the special benefit assessments which the city levied on abutting property, while the Colby complaint admits the regularity of all the improvement proceedings as well as the validity of all the original special benefit assessments. No evidence was offered by any of the parties in the Circuit Court, and the suit was tried and decided on such admissions as are found in the pleadings, together with certain admissions contained in a written stipulation entered into by the parties concerning the facts and the issues. While most of the facts are either admitted in the pleadings or agreed upon in the stipulation, there are yet some conflicting allegations which the parties were unable to reconcile.</p> <p>We can more readily understand the nature of this complicated controversy if we first look to the voluminous pleading’s and extract from them and the stipulation a condensed statement of the transactions which brought about the conditions existing in the latter part of 1916, at which time it was deemed advisable to submit some method to the legal voters for refunding part or all of the indebtedness of the city; and then it will be appropriate to notice the provisions of two different methods which were devised and submitted to the legal voters, one being known as the Medynski Plan and the other as the Hanson Plan. After referring to the causes which produced the conditions found to exist in 1916, and explaining the provisions of the Medynski and Hanson Plans, attention can be directed to such facts as particularly affect Colby and then to those facts which form the basis of the contentions made by Stailey.</p> <p>Commencing with the year 1907, and ending with the year 1913, the city of Medford made extensive ■ improvements. Streets were paved; sewers were constructed; and water-mains were laid. The city levied special benefit assessments against the abutting property for the purpose of raising funds to pay for these improvements. The expense of the pavement, sewers and water-mains aggregated a large sum; and the cost of the paving alone was approximately $1,000,000. After receiving notice of the special assessments levied against their property for paving and sewers, most of the abutting property owners made application under the statute, commonly known as the Bancroft Bonding Act, to pay their assessments in ten annual installments; and then the city issued bonds as provided by the Bancroft Bonding Act. The charter contains provisions which are modeled after the Bancroft Bonding Act and enable the owner of abutting property to pay an assessment, levied on his property for the laying of water-mains, in installments by filing an application with the city, and the city can then issue bonds in an amount equal to such an assessment; and although it is not in terms alleged in the pleadings that applications were so made under the charter, it is nevertheless a fair inference to say that many of the owners of property assessed for water-mains applied for and were granted the right to pay their water-main assessments in installments. While the parties were unable to agree upon the number, yet, they do agree that some of the abutting property owners neither paid their assessments nor brought themselves within the Bancroft Bonding Act. In some instances where the property owner had not applied for the right to pay his assessment in installments, the city continued the assessment on the lien docket without attempting to enforce collection. Some of the abutting property against which special assessments were levied was not worth as much as the amount of the assessment, either before or after the street improvement was completed, although the special benefit assessment was less than the valuation of the property as shown by the last tax-roll of the county. The assessed valuation appearing on the county tax-roll was always greater than the amount of the special assessment on a lot, but the real value of a given lot was in some instances less than the amount of the special assessment imposed upon such lot for a street improvement. "With the opening of the year 1914, many of the property owners began to discuss and question the validity and amount of the assessments levied against their property for the various improvements, with the result that, in addition to those who had neither paid their assessments in full when due nor applied for the privilege of paying in installments, many property owners who had brought themselves under the Bancroft Bonding Act refused to pay the installments that matured in the years 1914, 1915 and 1916. The bonds which the city had issued under the Bancroft Bonding Act carried interest and this interest was payable semi-annually. Because of the failure of some of those who had not brought themselves within the Bancroft Bonding Act to pay the whole of their assessments when due, and on account of the refusal of many of the property owners who had come under the Bancroft Bonding Act to pay the annual installments, principal and interest, there were no moneys in the treasury with which to pay the interest due each year on the bonds which had been issued under the Bancroft Bonding Act; and it therefore became necessary for the city to take some steps to raise enough money to satisfy the interest. Instead of exercising the power given to it by its charter and enforcing the collection of delinquent assessments by selling the property charged with the assessment, the city resorted to general taxation; and, in each of the years 1914, 1915 and 1916, a tax was levied on all the taxable property in Medford for the purpose of raising money with which to pay interest on the outstanding bonds. By October, 1916, the city had become indebted in large sums. A portion was for the general expenses of the city and was represented by outstanding warrants; a part was for water-mains and was represented by water-main bonds issued by authority of the charter; and the remainder of the indebtedness was for street improvements and sewers and in the main was represented by bonds issued under the provisions of the Bancroft Bonding Act. This was the condition of the finances of the city when on October 3, 1916, the Medynski Plan was submitted and on December 19, 1916, the Hanson Plan was submitted for approval or rejection by the voters at an election to be held on January 9,1917.</p> <p>Each .plan was a refunding plan, although one proposed to refund more of the indebtedness than the other. The Medynski Plan was designed to refund the paving indebtedness only, while the Hanson Plan proposes to refund all the existing indebtedness incurred in the improvement of streets and in laying sewers and water-mains. The two plans are different in other respects. The Medynski Plan relies entirely upon general taxation to pay the indebtedness; but the Hanson Plan looks primarily to the abutting property for the funds.</p> <p>The Medynski Plan : This plan proposed to declare street improvements public necessities, to release all property from the liens of assessments for street improvements, and to reimburse property owners who had made any payments on assessments for street improvements. It provides that the city shall assume all indebtedness for street improvements and refund the debt by the issuance of bonds; that the city shall pay the indebtedness for street improvements by levying a tax on all taxable property within the municipality; and that the time for the ultimate payment of the indebtedness shall be extended by dividing the debt into fifteen equal payments to run for a period of twenty years with interest, the interest to be paid annually during the first five years and the payments on the principal to commence in the 6th year.</p> <p>The Hanson Plan : This alleged charter amendment is entitled:</p> <p>“An Act to Amend the Charter of the City of Med-ford, by adding thereto a new chapter to be known as Chapter 14, consisting of Sections 139 to 170, both inclusive, relating to special assessments for local improvements for paving and otherwise including sewer and water-main heretofore levied and assessed, providing for the collection thereof and the enforcement of such liens and assessments and the issuance and sale of refunding bonds, therefore, to read as follows”:</p> <p>The opening section reads thus:</p> <p>“All unpaid assessments heretofore levied and assessed for street improvements by paving or otherwise, including sewers and water-mains, whether bonded under the provisions of the Laws of the State of Oregon or the city charter of the City of Medford, or not bonded, shall be collected and collections of such liens enforced as in this act provided. The city council shall by ordinance fix a date when all such unpaid assessments with interest thereon to such date may be paid in whole or in part, notice whereof shall be given as herein provided. The amount of principal and interest of such assessments remaining unpaid at the expiration of such date shall constitute an unpaid balance which, with interest thereon at the rate expressed in the refunding bonds in this act provided for, shall be payable in thirteen (13) years from and after such date during each of the first three years of which only interest upon such unpaid balance must be paid, and during each of the last ten years of which period there shall be payable one-tenth of such unpaid balance with interest at the bond rate upon the whole unpaid sum. In addition to the annual payments herein required, the option is accorded to pay at the time of each annual payment, one or more tenths of the unpaid balance, but any such optional payment shall he considered as payment of the last maturing installment or installments as the case may be: Provided, that the city council may by ordinance provide for semi-annual payments of interest and principal.”</p> <p>Subsequent sections provide for transferring all special assessments previously made to a lien docket which is called the “consolidated lien docket.” The city council is required by ordinance to create a consolidated improvement district comprising street, sewer and water-main improvements where any special assessments remain unpaid. The consolidated lien docket is placed in the hands of the city treasurer for collection, and he is directed to notify property owners that they may pay their unpaid assessments within the time specified in the notice. If a property owner fails to pay any such assessment within the period fixed by the notice given by the treasurer, then, upon the expiration of 20 additional days,</p> <p>‘ ‘ the city council shall by ordinance authorize the issue of the refunding improvement bonds of the city in an amount equal to the unpaid balance of such assessments, existing at the expiration of the date herein-above provided for, in convenient denominations not exceeding Five Hundred ($500) Hollars each; and such bonds shall by the terms thereof be payable on or before a date not to exceed fifteen (15) years from and after the date of such bonds which latter date may be fixed by resolution and be payable in their numerical order in gold coin of the United States and bear interest not to exceed six (6) per cent per annum interest payable semi-annually or annually, said interest to be evidenced by coupons attached to said bonds.”</p> <p>The city council is authorized to provide for the sale of the refunding bonds; and the money derived from the sale of these bonds</p> <p>“shall be applied to the redemption and payment of the outstanding and unpaid City of Medford Improvement Bonds and Warrants for paving, sewers, and water-mains, and to the redemption and payment of coupons of such bonds held by the city and representing moneys advanced by it from taxes and otherwise from its various funds by way of loans to meet, from time to time, maturing interest payments in bond fund districts hereinbefore consolidated.”</p> <p>If any installment of interest or principal is not paid when due it “shall thereupon become delinquent, and shall bear a penalty of five (5 per cent) per centum upon the amount of such delinquency, in addition to the bond rate upon the principal sum so delinquent.” The Hanson Plan also contains elaborate provisions for the sale of property where any installment is due or an assessment has become delinquent; it contains sections appertaining to the redemption of property sold for delinquent assessments; and it speaks of reassessments and other subjects not now necessary to notice.</p> <p>At the city election, held on January 9, 1917, the legal voters rejected the Medynski Plan and approved the Hanson Plan; and, unless the Hanson Plan is adjudged illegal, the city will at once proceed to execute all the powers specified in the measure, will enter unpaid assessments in the consolidated lien docket, give notices, sell bonds and refund all the existing indebtedness for sewers, pavement and water-mains, as provided for by the Hanson Plan.</p> <p>Charles D. Colby is a legal voter and taxpayer of Medford. In 1916, he became the owner of lot 3 in block 59 abutting on North Grape Street. Pavement was laid on this street and the cost of the improvement, including street intersections, was assessed, according to the front foot rule, against the abutting property. John M. Deward owned lot 3 at the time the pavement was laid; and, when notified that an assessment of $284.50 had been levied against his property, he filed an application on November 17, 1911, for the privilege of paying the assessment in installments as provided by the Bancroft Bonding Act. The installments were regularly paid until 1914. After having paid all the taxes levied against his property, including the general tax which the city had levied in 1914 for the purpose of raising funds to pay the interest on the outstanding bonds which had been issued under the Bancroft Bonding Act, Colby tendered to the city the installment due on the street assessment against his property, less the interest. The city declined to accept the tender, claiming that Colby was obliged to pay interest as well as principal. Colby refused to pay more than the installment due on the principal, claiming that he had already paid the interest by paying his general taxes. Colby paid the taxes levied against his property during each of the years 1914,1915 and 1916, but he did not pay any installments on the principal of the street assessment levied on his lot.</p> <p>William Stailey has been a taxpayer of Medford since 1909. He owns six lots abutting on South Grape Street. Lot 6 is a corner lot and abuts on Sixteenth Street as well as on South Grape Street. Pavement was laid on South Grape Street and in 1911 the cost of the improvement, including street intersections, was assessed according, to the front-foot rule against the abutting property. An assessment of $256 was levied on each of the six lots on account of the South Grape Street pavement, and, in 1912, an additional $444 was charged against lot 6 for its share of the expense incurred in paving Sixteenth Street. Although each lot was assessed by the county assessor for more than the amount of the special assessment levied against it, nevertheless, in truth, both before and after the completion of the improvements, each lot was and now is worth less than the special assessment charged against it. Stailey did not make application for the privilege of paying his assessments in installments and consequently the full amount of the assessments for South Grape Street became due in 1911 and for Sixteenth Street in 1912.</p> <p>Based upon grounds which will he stated and considered hereafter, Colby prays for a decree adjudging the Hanson Plan void and enjoining the sale of bonds under it; and, further, that the city be required to accept the principal of the unpaid assessments less-the interest collected by general taxation, or else that the city be enjoined from collecting any of the special assessments for street improvements and that the municipality be compelled each year to levy a sufficient millage tax on all the taxable property to meet the maturing indebtedness.</p> <p>The prayer of the Stailey complaint is for an annulment of the special assessments imposed upon his property and that the city be required to levy a sufficient millage tax against all the taxable property to pay the outstanding indebtedness.</p> <p>The trial court rendered a decree adverse to the contentions made by Stailey, and also decreed that the Hanson Plan -was invulnerable to attack, and that it is a valid amendment to the city charter. The plaintiffs appealed.</p>

From Tillamook: George E. Bagley, Judge. Department 2. Statement by Mr. Justice Burnett. After stating tbe corporate cbaracter of tbe parties the complaint avers that the plaintiff and defendant entered into a contract, a copy of which is attached to the complaint, whereby the former agreed to purchase from the latter who promised to deliver to the former a certain amount of spruce lumber within ninety days from-the date of the order at a fixed price mentioned.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action to recover damages from the defendants on account of fraud which plaintiff alleges they perpetrated upon her, whereby they induced her to purchase the lease and furniture of an apartment house in Portland at much more than its real value. The separate answers of the defendants traverse all the averments of the complaint charging fraud.

From Marion: William Galloway, Judge J. 0. Jones filed in the Circuit Court of Marion County, Oregon, Department No. 2, a cross-bill in equity against G. W. Skiles and M. N. Lewis. Defendants interposed a demurrer and tbe same having been sustained, plaintiff appeals. Reversed and remanded. Department 1. Statement by Mr. Justice Benson. This is an appeal from the order of the trial court sustaining a demurrer to a cross-bill in equity.

From Multnomah: Henry E. McGinn, Judge. This is a suit by D. J. Dempsey against B>. L. Ball, Henrietta Ball, George C. Engelke and Henry Zorn in which the trial court made findings and entered a decree in favor of plaintiff, from which the defendant Zorn appealed. Affirmed. Department 2. Statement by Mr. Chief Justice McBride.

From Clackamas: James U. Campbell, Judge. Department 2. Statement by Mr. Justice Moore.

<p>Dedication — Evidence—Weight and Sufficiency.</p> <p>1. Evidence held not to establish dedication of a street by user.</p> <p>Dedication — Acquiescence in Public Use.</p> <p>2. The permission by the owner of spasmodic or occasional use by the traveling public of uninclosed land is not sufficient to indicate an intent to dedicate the property to public use.</p> <p>Dedication — Acts Constituting.</p> <p>3. That a city has passed ordinances referring to land that would be part of street, if extended, as part of that street, and that conveyances of property adjoining such land have been executed, designating it as part of street, cannot deprive owner of premises of his property without his- consent.</p> <p>Dedication — Acts Constituting — Intent.</p> <p>4. To establish a dedication, owner’s aets and declarations should be deliberate, unequivocal and decisive, and manifest a positive and unmistakable intention to permanently abandon his property to the specific public use.</p> <p>[As to what amounts to a dedication of a highway, see note in 57 Am. St. Rep. 749.]</p> <p>Dedication — Acts Constituting — Intent.</p> <p>5. To a common-law dedication it is necessary that there be an appropriation of land by the owner to the public, either by express manifestation of purpose to devote land to public use or by aets or course of conduct from which law would imply such an intent.</p> <p>Dedication — Acquiescence in Public Use — Intent.</p> <p>6. If the open and known aets of the donor are sueh as to induce the belief that he intended to dedicate the way to public use, and the publie and individuals act upon such conduct and acquire rights, whieh would be lost if the owner were allowed to reclaim the land, the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.</p> <p>Dedication — Estoppel to Deny.</p> <p>7. Where settler on land, whose heirs subsequently become owners, files a map designating premises as part of a street, he and his successors in interest are estopped to deny that premises were dedicated as a street.</p> <p>Dedication’ — Acts Constituting — Plats.</p> <p>8. Piling of plat, showing that premises in question are reserved as private property, shows that there was no express dedication of lands to public use by virtue of map.</p> <p>Dedication — Capacity to Dedicate.</p> <p>9. An oral dedication of premises as a street cannot be shown by minutes of a city council reciting declarations of one who was not the owner at the time.</p>

<p>Municipal Corporations — Public Improvements — Delegation of Powers.</p> <p>1. The power of the council of a city to “determine the character, kind and extent of improvements” .to be made cannot be delegated to the city engineer.</p> <p>Municipal Corporations — Public Improvements — Delegation of Powers.</p> <p>2. Where a city council ordered the city engineer to submit plans for two kinds of paving, and he complied, and thereafter the council called for bids, accepted the lowest hid and by ordinance determined the character, kind and extent of the improvements, the council did not delegate its functions to the city engineer.</p> <p>[As to delegation by municipal corporation of powers involving exercise of discretion, see note in 29 Am. Rep. 108.]</p> <p>Municipal Corporations — Public Improvements — Notice—Requisites.</p> <p>- 3. Under Portland City Charter, Section 376, the notice of the resolution of an improvement need not be printed in letters not less than one inch in length, but only the title, “Notice of Street Work,” need be of such size.</p> <p>Municipal Corporations — Public Improvements — Double Improvement.</p> <p>4. The paving of a street, whose continuity was interrupted by a small park, does not constitute two improvements, so as to require their separation, in view of Portland City Charter, Section 37á, as to public improvements.</p> <p>Municipal Corporations — Public Improvements — Exaction of Guaranty —Powers of Council.</p> <p>5. The requirement in a contract for paving a street that the contractor shall make good any defects in materials or workmanship occurring within five years does not so increase the burden or the cost of the improvement as to vitiate the assessments therefor.</p> <p>Municipal Corporations — Public Improvements — Performance of Contract — Powers of Council.</p> <p>6. The determination made by the council that the specifications and the contract of a paving contractor have been fulfilled and completed is conclusive.</p>

Prom Multnomah: Henry E. McGinn, Judge. Action by Joseph McPheeters against Dr. N. L. Smith, in which findings were made and a judgment rendered thereon in favor of defendant, and plaintiff appeals. Reversed and remanded. Department 1. Statement by Mr. Chief Justice McBride. This is an action to recover upon a conditional sale, note, and contract for the purchase of a piano.

Department 1. Statement by Mr. Justice Burnett. Tbe defendant issued an indemnity policy insuring tbe plaintiff against liability for accident happening in connection with the operation of the latter’s elevator. The complaint alleges an injury to one of the plaintiff’s employees for which it was compelled to respond to him in damages recovered by an action at law which the defendant here was called upon to defend, but refused.

From Multnomah: George R. Bagley, Judge. In Banc. Statement by Mr. Justice Bean.

<p>Costs — Cost Bill — Objections.</p> <p>1. Sections 569, 570, L. O. L., providing for the taxing of costs and disbursements, declare that no disbursements shall be allowed to any party, unless he shall serve upon such adverse party or parties as are entitled to notice by law, and file with the clerk five days after rendition of judgment, his statement, with • proof of service, if notice to the adverse party is required, showing with reasonable certainty the items of all disbursements, that the statement of disbursements thus filed and costs shall be entered as of course by the clerk as part of the judgment or decree, unless the adverse party, within five days from the expiration of the time allowed to file such statement, shall file his objections thereto, and that, as soon as convenient after objections are filed, the court or judge thereof shall proceed to hear and determine all the issues involved. Defendants served on plaintiff a bill of eosts and disbursements, and on the following day plaintiff filed its objections. Several days thereafter, within the time limited, defendants filed their cost bill, which had already been served. Held, that as the cost bill was duly filed, and the objections were directed to it, they will not be disregarded because they were filed before the eost bill itself was filed.</p> <p>Costs — Allowance—Witness Fees.</p> <p>2. Section 566, L. O. L., declares that a party entitled to costs shall recover all necessary disbursements, including the fees of officers and witnesses. Section 567 declares that in a suit in equity costs and disbursements shall be allowed to the party in whose favor a decree is given in an action. Held, that the disbursements are to be confined to what is necessary, and where defendants by their answer showed that a suit apparently to settle a disputed boundary involved a title to land, and that the ordinary action of ejectment was proper, and the court, having sustained their contention, dismissed the suit, defendants are not entitled to claim as costs and disbursements fees paid witnesses.</p>

From Josephine: Frank M. Calkins, Judge. Originally this was a suit by T. E. Anderson, T. K. Anderson, as administrator of the estate of H. A. Williamson, deceased, substituted for said deceased, and Albert Phillips, against Grant Phegley and Emma G. Eobinson. From an order denying the motion of Emma G. Eobinson to set aside the decree and allow an answer to be filed, she appeals. Submitted on brief under the proviso of Supreme Court Eule 18: 56 Or. 622 (117 Pac. xi).

From Clackamas: James TJ. Campbell, Judge. In Banc. Statement by Mr. Justice Burnett. The complaint alleges the corporate character of the defendant and that at the time of the injury complained of the plaintiff was employed as a watchman by the defendant so that the relation of employer and employee then existed between them.

<p>Pleading — Demurrer—Misjoinder—Contract and Tort;</p> <p>1. A complaint, pleading separately (1) an alleged breach of contract arising out of the purchase of tickets to a theater, and (2) removal to the lobby by the use of force and violence, was demurrable in view of Section 68, L. O. L., making a demurrer the method of attacking a misjoinder of causes of action.</p>

<p>Costs — On Appeal — Expense of Transcript — Taxation.</p> <p>1. Expense of a stenographic transcript of testimony used on appeal must be claimed and taxed in the Circuit Court, and cannot be taxed as a disbursement in the Supreme Court.</p> <p>Costs — On Appeal — Expense of Transcript.</p> <p>2. Plaintiff filed a supplementary cost bill for a stenographic transcript of testimony for use on appeal after the time allowed by Section 569, L. 0. L., providing that no disbursements shall be allowed a party unless he served upon the adverse party and filed with the clerk an itemized statement of his disbursements “within five days after the rendition of the judgment,” but providing that such statement may be filed with the clerk at any time after said five days, but not later than the first day of the next regular term after the expiration of the said five days, and that such statement shall be entered by the clerk “as a part of the judgment” in favor of the party entitled to costs. Section 931, L. 0. L., provides that when shorthand notes shall have been taken in any case, if the court or either party requests a transcript, the expense thereof shall be paid forthwith by the party ordering the transcript, “and when paid shall be taxed as other costs in the ease.” Held, that the expense of such transcript may or may not be taxable, depending upon whether the judgment is reversed or affirmed, but in no event can become a part of the original judgment, and the bill was filed prematurely, the time within which the supplementary cost bill can be filed commencing to run from the date of the entry of judgment on the mandate, and that, if judgment is affirmed, the item cannot be taxed as a disbursement, or become part of the original judgment, but, if reversed, the item is taxable as a part of the new judgment rendered on the mandate.</p>

Original proceeding in Supreme Court. In Banc. Statement by Mr. Justice Burnett. The plaintiffs here instituted a previous suit in the Circuit Court of Multnomah County against Josephine Paulson to foreclose mechanics’ liens which they claimed for labor and material furnished and which were used in the construction of a dwelling-house for her.

<p>Insurance — Action on Policy — Sufficiency of Evidence.</p> <p>1. Before plaintiffs are entitled to judgment on a policy they have to show the amount of loss sustained.</p> <p>Insurance — Marine Insurance — Cause of Loss.</p> <p>2. Under a policy insuring against the perils of the waters, it was incumbent on plaintiffs to show that the sinking of the boat, was caused by the perils insured against.</p> <p>Insurance — Marine Insurance — Presumption and Burden of Proof.</p> <p>3. If there is evidence showing that -a vessel was lost or damaged on encountering some peril insured against, the presumption is that the vessel was seaworthy, and the burden rests upon the insurer to show the contrary.</p> <p>Insurance — Marine Insurance — Presumption and Burden of Proof.</p> <p>4. When a loss occurs which eannot be ascribed to stress of weather,.or to any accident which might possibly have produced it, the presumption is that the vessel was defective and not seaworthy, and the burden of proving otherwise is on the insured.</p> <p>[As to what is within the law of seaworthiness in marine insurance, see note in 33 Am, Dec. 33.]</p>

From Clatsop: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Burnett. The plaintiff, a citizen and resident of the State of Oregon, is the admitted owner of a certain upland island and the tide-lands in front of the same in the navigable waters of the Columbia River.

<p>Pleading — Election Between Defenses — Powers of Court.</p> <p>1. The Circuit Court has power to require an election between affirmative defenses, provided the application of plaintiff is made seasonably, and the action of the court is based on some good reason shown by the record.</p> <p>Sales — Invalid Contracts — Warranties—Validity.</p> <p>2. If a contract of sale of an automobile was invalid, warranties of the machine made by the seller are also invalid.</p> <p>Pleading — Inconsistent Defenses — Election—Powers of Court.</p> <p>3. Sinee answers are not inconsistent so long as they may both be true, an answer in an aetion on a note, alleging as agreement for exchange of automobiles, the note being given to cover the difference, and setting up certain warranties which were broken, is not so inconsistent with a seeond answer alleging invalidity of the sale by reason of failure to comply with Laws of 1911, page 265, Section 3, as to registering ownership that an election of answers should have been required.</p> <p>Appeal and Error — Harmless Error — Requiring Election Between Defenses.</p> <p>4. Where the court erroneously required defendant to elect between two defenses and he chose the first, the judgment should be affirmed, notwithstanding the error, if the second answer was insufficient.</p> <p>Sales — Automobiles—Registration of Title.</p> <p>5. Laws of 1911, page 265, Section 3, requiring the vendor of an automobile within five days after the sale to report to the Secretary of State the name and address of the vendee, or providing that the vendee may, within ten days, have the license number transferred to himself, and providing that no sale or transfer shall be valid without compliance with the statute, a sale without compliance is not invalid ab initio, but the statute merely attaches a contingent condition subsequent on which the sale may become abortive.</p> <p>Sales — Validity.</p> <p>6. There is a vital distinction between a contract void ab initioi and a contract merely voidable.</p> <p>Sales — Invalidity—Rights of Parties.'</p> <p>7. Where a sale of an automobile was invalid for failure to comply with Laws of 1911, page 265, Section 3, the vendor eould replevy the automobile and recover the value of its use, though he could not recover on a note given to evidence the purchase price.</p> <p>Sales — Action for Price — Defenses.</p> <p>S'. In action on note given on exchange of automobiles, where answer set up defense of breach of warranty and of failure to comply with Laws of 1911, page 265, Section 3, as to registration of titlet, since the plaintiff could not recover on the note if the sale was invalid, the second answer set up a substantial defense, and it was error to require an election.</p>

<p>Easements — Sidewalk—Establishment by User.</p> <p>1. Where the use of a sidewalk was permissive in its origin, it could not beeome adverse without some unequivocal assertion of the rights of the public inconsistent with the title of the record owner.</p> <p>[As to presumption of dedication from user of highway, see note in Ann. Cas. 1914D, 335.]</p> <p>Dedication — Dedication in Pais — Proof.</p> <p>2. Dedication by acts m pais will not be assumed, without clear evidence-manifesting an unmistakable intention to abandon to the public use.</p> <p>Dedication — Dedication in Pais — Sufficiency of Evidence.</p> <p>3. In a suit to determine an adverse claim to a strip of land in front of a hotel, evidence held not to show a dedication to the public as a part of the street.</p> <p>Dedication — Evidence—Levy and Payment of Taxes.</p> <p>4. Although the levy of taxes does not estop the public from claiming property as a highway, the continuous payment of taxes is evidence rebutting the presumption of a dedication.</p> <p>Dedication — Sidewalk—Estoppel.</p> <p>5. An owner, who built a hotel, back from the street with a sidewalk to the street line, with a roof over it, and induced other builders to conform to his building line, was not estopped from claiming title, in the absence of a showing that the other property owners constructed their buildings on the line because of their belief that they could use the sidewalk in front of the hotel.</p> <p>Estoppel — Title to Land — Proof.</p> <p>6. The title to real property cannot be divested by estoppel, without clear and satisfactory evidence.'</p>

From Douglas: George F. Skepworth, Judge. Department 1. Statement by Mr. Justice Burnett. The plaintiff as trustee in bankruptcy of C. F. Smith and Dee Howard, both as individuals and as partners under the firm name of “The Roseburg Garage,” brought this action in replevin in the ordinary form to recover the possession of certain personal property said to have been owned by Smith prior to plaintiff’s election as trustee.