Volume 87 — Oregon Reports

<p>Injunction—Trespass—Cutting Timber.</p> <p>1. Equity will intervene to prevent a trespass upon real property by cutting timber.</p> <p>Mines and Minerals—Injunction—Removal of Ore.</p> <p>2. Tbe removal of ore from tbe premises of another without his consent will be enjoined.</p> <p>Waste—Injunction.</p> <p>3. A suit in equity will lie to restrain waste.</p> <p>Execution—Inj unction—Pleading.</p> <p>4. A complaint in a suit to enjoin the sale of real property upon execution eould not be sustained as predicated upon the assumption of a continuing or other trespass; for, since levy of execution upon real property is made under Section 233, subdivision 4, L. O. L., by the sheriff’s delivering to the county clerk a certificate containing the title of the cause, the names of the parties to the action, a description of the land, and- that the same has been levied upon to satisfy the demand of the judgment creditor, sueh enforcement of the writ does not imply an entry upon the premises.</p> <p>Execution—Wrongful Levy—Persons Liable.</p> <p>5. A seizure by an officer of the property of one not a party to the writ being illegal, when such levy is directed by the party at whose instance the execution was issued, the'command renders sueh party ■and the officer liable for the damages thus occasioned.</p> <p>Justices of the Peace—Setoff of Judgments—Statutes.</p> <p>6. Section 2443 et seq., L. O. L., providing for setting off one judgment against another when given in Justices’ Courts, if between the same parties and mutual, evinces a legislative policy, in the absence of any statute regulating equitable setoffs in courts of record, of requiring that tbe demands shall be mutual and exist between the same parties before they can be employed to extinguish, wholly or in part, the rightful claim of the adverse party.</p> <p>[As to setoff of one judgment against another, see note in 109 Am. St. Rep. 137.]</p> <p>Setoff and. Counterclaim—Setoff of Partners’ Claims.</p> <p>7. Notwithstanding the rule against setoff of partnership demands and demands due to individual partners, where all the partners agree with an individual that a setoff may be allowed, the stipulation will be enforced.</p> <p>Setoff and Counterclaim—Setoff of Wife’s Claim Against Judgment Against Husband.</p> <p>8. Notwithstanding a wife’s natural interest in protecting her husband’s rights, the requirement of mutuality of demands prevents her being allowed/ to offset her claim for damages against a judgment against her husband to which she was not a party, even though the judgment creditor is insolvent and a nonresident of the state.</p>

From Polk: Harry H. Belt, Judge. This is an action by D. W. Crites against the Willamette Valley Lumber Company, a corporation, to recover for money expended for services of a physician, while in the employ of defendant. From a judgment in favor of plaintiff, defendant appealed. Statement by Mr. Chief Justice McBride.

<p>Municipal Corporations—Ordinances—Validity.</p> <p>1. A municipal ordinance directed against conspiracies to injure trade, business or commerce, and providing a penalty for violation thereof, has no extramural effect, is not invalid on the ground that it is not local, special and municipal legislation.</p> <p>Municipal Corporations—Ordinances—Rules of Evidence—Validity.</p> <p>2. While the legislature may declare that certain evidentiary facts shall be prima facie evidence, such facts must have some direct and logical tendency to prove the antecedent fact, hence a municipal ordinance declaring that if any person shall alone, or in company with others, loiter or parade back and forth in front of or cause any other person or persons to loiter or parade back and forth in front of, or in the vicinity of, any store, factory, works or place of business, or in front of, or in the vicinity of, the home of any person connected with, employed in or seeking employment in any sueh store, etc., such conduct shall be prima facie evidence of a conspiracy to injure the trade, business or commerce of the proprietor of the store, etc., thus patrolled, is invalid, because the acts have no tendency to prove a conspiracy to injure the commerce or trade of any person.</p> <p>Constitutional Law—Ordinances—“Conspiracy to Injure Trade, Business or Commerce”—“Strikes”—“Boycott”—“Picketing.”</p> <p>3. A municipal ordinance defined conspiracies to injure trade, business or commerce as any combination or agreement -between two or more persons not to buy from or sell to, or have dealings with any person or persons, or to induce or attempt to induce other persons not to buy from or have dealings with any person or persons, etc., for the purpose or with the intent to compel or force employment or discharge from his' employment. The ordinance further declared that if any person alone or in company with others shall carry or display, or cause to be carried or displayed, print or circulate, or cause to be printed or circulated, any banner, sign, etc., which by its terms directly or indirectly induces or attempts to induce others not to buy from or sell to or have dealings with any designated person, or shall loiter or parade back and forth, or cause any person or persons to loiter or parade back and forth, in front of, or in the vieinity of, any store, etc., such conduct shall be prima fame evidence of a conspiracy to injure the trade or business of the person or persons referred to by the banner, etc., or whose property is thus patrolled. A “strike” is defined as the act of a body of workmen employed by the same master in stopping work all together at a prearranged 'time, and refusing to continue until some concession is granted by the employer, while a “boycott” is defined as a combination to cause a loss to one person by coercing others against their will to withdraw from him their business intercourse, by threats that unless others do so, the combination will cause similar loss to them. Held, that the ordinance, even though valid as applied to “picketing,” which is defined as posting members of a trade union on a strike at all the approaches to works for the purpose of observing or reporting the workmen going to or coming from the works, and of using sueh influence as may be in their power to prevent the workmen from accepting work there, it is invalid in depriving workmen of their right to strike en masse; that right having been recognized for many years.</p> <p>[As to strikes and strikers, and what is unlawful interference or intimidation, see note in 61 Am. St. Rep. 706.]</p> <p>Criminal Law—Prohibition—Nature of Acts1 Which can be Prohibited.</p> <p>4. It is fundamentally true that whatever may be enjoined by a court of equity may by legislation be declared mahim prohibitum.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice Burnett. This is a suit by F. N. Derby as trustee in bankruptcy for W.' H. Rogers, doing business under the name of Rogers Plumbing & Heating Company, against the United States Fidelity & Guaranty Company, the United States National Bank and the Board of State Fair Directors. The directors do not appear to have been served or to have made any appearance in the case.

<p>From Multnomah.: Robert G-. Morrow, Judge.</p> <p>This is a suit by W. C. Elliott, Geo. A. Young and Nellie E. Young, F. J. Shuldt, W. D. Helene, U. G. Love, J. R. Criger, E. V. Deickworth, E. C. Brown and S. A. Brown, G. H. Austin and L. G. Austin, D. D. Ogle and Tillie Y. Ogle, C. I. Snyder, S. E. Snyder, Otto and Anna Svoboda, Ida Bush, Charles Lomerine, J. G. Mann, John Simon, Fred West, L. L. Mallett, C. A. Ames and E. F. Ames, H. R. Blue, Grace L. Finley, L. G. Brazen, Alfred Carlberg, Magnus Carlquist, J. C. and L. J. Winfield, C. L. Olsen, C. J. Engberg, Mary A. Smith, W. C. Lindsey, Julia L. Ruble, Sarah A. Nolta, Bessie Smith, H. A. Ruble, John P. McDonough, S. W. and W. M. Sawyer, H. F. Liebermann, R. S. Leigh, Ira D. Baker, Oscar Briethaupt, Luke Stoneman, A. F. Swenson, A. E. Oberg, John Tierney, Roscoe and Marie Yokum, Walter Hughes, Florence Olson, Carrie Olson, Elizabeth Cos, M. L. McMahon, E. M. Orth, E. L. Casey, E. D. Casey, T. C. Shaw, B. G. Selberg, A. A. and S. D. Young, A. H. Pinnish, and James Paulson, against the City of Portland, a municipal corporation.</p> <p>From a decree in favor of plaintiffs, the defendant city appealed.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit to enjoin a sale of certain property by the city treasurer for the purpose of collecting a reassessment against the same for the Riverside sewer Mid to cancel certain amounts of interest and costs ot advertising the lots upon former attempted sales. A decree was rendered by the trial court in favor of the plaintiffs and the defendant appeals.</p>

<p>Fraud—Statement of Material Facts—Good Faith.</p> <p>1. Where a vendor of land by the acre states there are a certain number of acres in the tract, it renders him responsible for damages if there are less than stated, although he believed it to contain such amount.</p> <p>Fraud—Sales of Land—Measure of Damages.</p> <p>2. Where a purchaser buys what the vendor states to be 112.5 acres of land at $50 per acre and there are only 78.76 acres, the vendee is entitled to recover the excess paid in an action for fraud, even though he sold the same for as mueh as he paid without knowledge of the shortage; although the measure of damages is different where property is exchanged, the measure of damages in such case being the difference between the value of the property given and that received.</p> <p>Mortgages—Deed Given as Security—-Evidence.</p> <p>3. Evidence held sufficient to warrant a finding that a deed absolute in form was intended only as security for a loan.</p> <p>Mortgages—Deed Given to Secure Loan—Title.</p> <p>4. A deed absolute in form given to seeure a loan does not pass the title and is nothing more than a “mortgage.”</p> <p>[As to liability of vendor of realty for false representations innocently made, see note in Ann. Cas. 1913C, 63.]</p>

From Marion: William Galloway, Judge. This is a suit by the Statesman Publishing Company, a corporation, against Frank Foltin and others, and is known as a bill of interpleader. The facts out of which this controversy arose appear in the statement by the court. Statement by Mr. Chief Justice McBride.

From Tillamook: Harry H. Belt, Judge. Statement by Mr. Justice Benson.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>In' April, 1914, the defendants, J. P. Smith, B. M. Smith, and J. E. Smith, partners as Smith Brothers, were the owners of about 177 acres of land in the northern part of Marion County. About 147 acres of this tract are located east of the Willamette Biver and the remaining 30 acres, known as the island, lie west of the main channel of the river. This land was placed in the hands of Mr. Ferguson, a real estate agent at Newberg, for sale for $16,000. He initiated negotiations with plaintiff Hornbeck for the sale of the same, but as the latter did not desire any portion of the island a final proposition was accepted leaving it out and embracing only the 147 acres at the price of $15,-400. The contract of sale was executed April 1, 1914, describing the land as two distinct parcels, title in fee simple to be conveyed upon payment of the purchase price as follows: $3,000 in cash, which was paid; $1,500 on the first day of November, 1914, and $1,500 on the first day of November in each year thereafter until the purchase price was fully paid, with interest at six per cent per annum on deferred payments. Horn-beck was to pay all taxes for the year 1914, and thereafter. Upon the execution of the agreement Hornbeck was to have possession of 20 acres of the land, and of the whole thereof on October 1, 1914, at the expiration of a certain lease in which he was substituted as lessor. The contract provided that in case of failure to make any of the payments, or the interest thereon, at the time provided therein, which was made the essence of the agreement, then Hornbeck should forfeit all his rights to the premises and the Smiths might reenter the same and retain all payments made.</p> <p>On February 7,1916, J. P. Smith, who had succeeded to the interest of his brothers in the land, brought an action against Hornbeck for the possession thereof. Hornbeck answered and also filed a cross-complaint in equity to restrain the action at law and prayed for the cancellation of the contract of sale and for the return of the $3,000, the first payment made upon the agreement, and $434, interest paid December 11, 1914. In his cross-complaint plaintiff Hornbeck set forth the contract and alleged, in substance that there was a deficiency of about 20 acres in the tract purchased; that at the time of the execution thereof and ever sinee neither of the vendors owned or possessed a parcel of said land consisting of about 12 acres and therefore cannot comply with the terms of the contract; that plaintiff was not familiar with the location of that portion of the premises and relied upon the representations of the Smiths; that they greatly exaggerated the value of the farm and falsely represented the proceeds that could be derived from the cultivation thereof.</p> <p>Defendants J. P. Smith, B. M. Smith and J. E. Smith, who were made parties defendants upon the application of plaintiff, answered the cross-complaint and admitted the execution of the contract. They denied any misrepresentations or fraud on their part and averred that plaintiff failed to pay any of the principal due on April 1,1914, or any interest, except $434 paid December 11, 1914, therefore, prior to the action defendant J. P. Smith declared the contract forfeited and demanded possession of the premises; that plaintiff was in possession of the land during the crop seasons of 1914 and 1915, without paying defendant anything for the use thereof, and neglected to pay the taxes assessed against the property for the year 1915; that by reason of the failure of plaintiff to perform the conditions of the contract he forfeited all right to the premises, or to a return of the $3,000, or the interest paid.</p> <p>Plaintiff’s reply put in issue most of the material allegations of the answer and averred that defendants delivered possession of only 103.89 acres of one tract, and 23.63 of the other. A decree was rendered in favor of defendants forfeiting all payments made by plaintiff and restoring defendant J. P. Smith’s possession of the premises. Plaintiff appeals. Additional facts are stated in the opinion.</p> <p>Former opinion modified.</p>

<p>Criminal Law—Appeal—Formal Defects.</p> <p>1. Tbe contention that tbe judgment of conviction should be affirmed, because defendant’s counsel moved for a directed verdict instead of a verdict of not guilty, is without merit.</p> <p>Statutes—Exceptions and Provisos—“Enacting Clause”—“Preamble.”</p> <p>2. The term “enacting clause” generally relates to a requirement in a Constitution or municipal charter demanding the use of a designated clause so as to give validity to a statute'or ordinance, and what is generally designated the “enaeting clause” of a statute is occasionally called the “preamble”; while a section of a statute denouncing an offense is sometimes spoken of as the “enacting clause.”</p> <p>[As to preamble as aid to the construction of a statute, see note in Ann. Cas. 1917C, 500.]</p> <p>Intoxicating Liquors—Jurisdiction of Police Courts.</p> <p>3. Under Laws of 1915, page 166, Section 32, providing that justices of the peaee and other courts having jurisdiction as such shall have concurrent jurisdiction with the Circuit Court for violations of the act, police courts generally possess the same authority to hear and determine cases as Justice’s Courts, and have concurrent jurisdiction with the Circuit Court of most violations of the prohibitory laws.</p> <p>Intoxicating Liquors—Prosecutions Under Ordinances—Statutes Applicable.</p> <p>4. Laws of 1915, page 166, Section 33, providing that it shall not be necessary for the state to allege that the party charged did not have legal authority to sell sueh liquor, or was not within any of the exceptions of the act, has no application to a prosecution under a municipal ordinance.</p> <p>Municipal Corporations—Ordinances Creating Misdemeanors.</p> <p>5. A municipal enactment creating a misdemeanor can rise to no greater dignity or importance than a statute defining a crime of that class.</p> <p>Indictment and Information—Supplying Omissions Unlawfully.</p> <p>6. The use of the word “unlawfully” in a criminal accusation for a statutory misdemeanor cannot, in the absence of an enactment to that effect, supply the omission of a statement of faets necessary to show the commission of the offense.</p> <p>Intoxicating Liquors—Negativing Exceptions—“Indictment.”</p> <p>7. Under ordinance making it unlawful to have in possession intoxicants “not permitted by the general laws of the State of Oregon,” the quoted exception being a part of what is usually termed the “enacting clause” must be negatived, and a complaint not negativing sueh exception by appropriate language was demurrable in view of Section 2482, L. O. L., providing that a complaint is to be deemed an indictment within the provisions of Chapter 7 of Code of Criminal Procedure (Sections 1435—1460, L. O. L.), as to sufficiency of indictment.</p>

<p>Appeal and Error—Right of Appeal—Small Claims Actions.</p> <p>1. Since Laws of 1913, page 732, providing for District Courts, and Laws of 1915, page 517, providing for a “small claims department” in such courts, make no provision for appeal in such small claims actions beyond the Circuit Court, no appeal lies to the Supreme Court, the right of appeal being purely statutory.</p>

<p>Trial—Direction of Verdict—Uncontradicted. Evidence.</p> <p>1. In an attorney’s action for compensation, where there was no counterclaim and no dispute in material testimony, and there could reasonably be no difference of opinion as to inferences deducible from the evidence, a directed verdict was proper,</p> <p>[As to what is deemed to be invasion by the court of the jury’s province, see note in 14 Am. St. Rep. 36.]</p>

From Wasco: William L. Bradshaw, Judge. Statement by Mr. Justice Benson. This .is a suit wherein an accounting is sought from the alleged trustee of an insolvent corporation.

From Lane: George F. Skepworth, Judge. This is an action by E. M. Buttle against Douglas County, to recover for personal injuries in which a verdict was returned and judgment entered in favor of plaintiff and defendant appealed. Affirmed. Statement by Mr. Justice Bean. This is an action for personal injuries occasioned by .a defective highway. The cause was tried by the court and the jury and a verdict rendered in favor of the plaintiff for $1,300.

<p>Sales—Action for Price—Affirmative Denial.</p> <p>1. In action for hay sold, a denial that more than a certain part of the hay was delivered, and an affirmative allegation that plaintiffs failed to deliver the balance of the hay contracted for, amounted to no more than an affirmative denial, and not pleading, as a counterclaim or defense, damages occasioned by breach of the contract to deliver all the hay.</p> <p>Judgment—Matters Concluded.</p> <p>2. When the second action between the same parties is upon a different claim or demand or cause of action, the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined, whether the judgment is used in pleading as a technical estoppel or is relied on by way of evidence as conclusive per se.</p> <p>Judgment—Matters Concluded.</p> <p>2. The omission to tahe advantage of matter of counterclaim as a defense is no bar to a cross or separate action upon it, so that, though, the cross-claim be admissible by way of defense, the defendant has an option to avail himself of it in that form, or to sue upon it in another action. .</p> <p>Judgment—Splitting Defenses.</p> <p>4. Defendants in action for hay sold could eleet whether they would, in that action, plead and recover on their counterclaim for damages for failure of plaintiffs to deliver all the hay contracted for, or deny the delivery and bring an independent action for damages resulting from failure to deliver.</p> <p>[As to who must bear the loss when the property isi lost after sale but before payment, see note in 22 Am. St. Rep. 866.]</p> <p>Judgment—Matters Concluded.</p> <p>5. Where sellers of hay sued for balance on the contract, and the issue whether the hay’representing such balance had been delivered was determined against them, they could not, when later sued by the purchasers for failure to deliver such balance of the hay, plead as a separate defense and counterclaim their delivery of sueh hay; the prior judgment being conclusive upon such issue.</p> <p>Judgment—Waiver of Estoppel of Former Judgment.</p> <p>6. The estoppel of a former judgment, determining that' sellers had not delivered all the hay contracted for, was not waived by the purchasers bringing an action for damages for the failure to deliver the full amount contracted for, since any such waiver must necessarily relate to a question determined in the former action.</p> <p>Sales—Damages.</p> <p>7. The measure of damages for the breach of an executory contract for the sale and delivery of personal property is the difference between the contract price and the market value at the time and place of delivery, or within a reasonable length of time thereafter.</p> <p>Damages—Duty to Reduce.</p> <p>8. The law imposes upon a party injured by another’s breach of contract the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible, and if by his negligence or willfulness he allows the damage to be unnecessarily enhanced, the increased loss, when it was avoidable by the performance of his duty, falls upon him.</p> <p>Evidence—Market Value.</p> <p>9. Where the value of personal property is in issue, if the same has a market value at the time and place in question, the evidence is usually confined to its value at such time and place, or at a reasonable time before and after that particular time.</p> <p>Evidence—Market Value.</p> <p>10. Where the value of personal property is in issue, if it has no market value at the time in question, the market value at some other time, before or after, may be shown.</p> <p>Evidence—Value.</p> <p>11. In action for failure to deliver hay, where no difficulty appeared in proving its market value at or about the time it was contracted to be delivered, evidence- of its market value several months thereafter, when market conditions were entirely different, was inadmissible.</p> <p>Sales—Damages.</p> <p>12. The rule limiting damages for nondelivery of hay contracted for to the difference between the contract price and the market price at the time and place of delivery would not'be affected by the sellers’ further failure, under the contract, to furnish a feeding place for the purchasers’ stock, necessitating buying hay at or transporting it to another place, since these would be separate elements of damage.</p> <p>Appeal and Error—Reversal—Remanding Case.</p> <p>13. Under Section 3, Article VH, of the Constitution, as to disposition of case on appeal, in action for -breach of contract, a portion of verdict for plaintiff which was based on evidence admitted under an erroneous theory of measure of damages would, on appeal, be eliminated from the judgment for want of competent evidence to support it, and judgment reversed and cause -remanded, with directions to enter judgment for plaintiffs for the balance of the verdict.</p>

<p>From Clatsop: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>School District No. 30 contracted with the Alameda Construction Company for the erection of a school building. In connection therewith the Construction Company, with the Illinois Surety Company as surety, filed with the officers of the district a bond containing this recital:</p> <p>“Whereas, the said principal, the Alameda Construction Company, a corporation, entered into a written contract with the said obligee (School District No. 30), dated June 10, 1915, for the construction and completion of a schoolhouse at Warrenton, Clatsop County, Oregon, in accordance with the terms, covenants and conditions of said contract which is hereby expressly referred to and made a part hereof;</p> <p>“Now, therefore, the conditions of this obligation are such that, if the said principal shall faithfully perform each and every condition and covenant of said contract according to the terms, conditions and covenants thereof, and shall promptly make payments to all persons supplying it, said principal, or any subcontractor working under said principal, with labor or materials for any prosecution of the work provided for in said contract, then this obligation shall be null and void; otherwise, to remain in full force and effect. ’ ’</p> <p>This action is brought on the relation of the Hammond Lumber Company, which avers that it furnished to the contractor lumber of the reasonable value of $1,097.08 used by the latter in the construction of the building and for which the relator has not received any compensation. The case hinges upon the fifth allegation in the complaint which is as follows:</p> <p>“That heretofore, and on the 10th day of June, 1915, pursuant to due and legal proceedings theretofore had and done by the plaintiff School District No. 30 of Clatsop County, Oregon, the said School District No. 30, entered into a written contract with said defendant Alameda Construction Co., wherein and whereby the said defendant Alameda Construction Company covenanted, contracted and agreed to furnish all • of the labor and all of the material and construct and erect and complete for the said School District No. 30 of Clatsop County, Oregon, a schoolhouse in said School District No. 30, in accordance with the plans and specifications and detailed drawings then and there prepared and mutually agreed upon between them, and thereby agreed to complete said building in accordance with the plans and specifications and detailed drawings by the 10th day of October, 1915.</p> <p>“That in order to insure the performance of said contract by the said Alameda Construction Co., and to secure the payment by said Alameda Construction Co. to all persons supplying such contractor labor or material for the prosecution of said work, and as a part of said contract, the said defendant Alameda Construction Co. and the said defendant Illinois Surety Company executed and delivered unto said School District No. 30 their certain bond obligatory in writing in the penal sum of $11,400, wherein and whereby the said defendant Illinois Surety Company covenanted, contracted and agreed that the said Alameda Construction Company would faithfully perform each and every condition and covenant of said contract according to the terms and conditions thereof, and would promptly make payments to all persons supplying it, the said Alameda Construction Company, or any subcontractor working under said Alameda Construction Company, labor or material for the prosecution of said woi’k provided in said contract, and in case said Alameda Construction Co. failed so to do, then said defendant Illinois Surety Co. therein obligated itself to make such payments not exceeding said sum of $11,-400.00.</p> <p>“That said bond obligatory was duly executed and witnessed, accordingly as provided by law, and accepted by said School District No. 30, and the same formed a part of said contract.”</p> <p>The answer, denies another averment about furnishing the material, but its statement concerning the fifth allegation of the complaint above set forth is as follows:</p> <p>“Admits the allegations contained in Paragraph Y of plaintiffs’ complaint, save and except that this defendant denies that it obligated itself under and by the terms of said bond that it would make payments to all or any persons supplying said Alameda Construction Company, or any subcontractor working under said Alameda Construction Company, for labor or material for the prosecution of said work provided in said contract, or agreed to make payments to any person save and except the obligee in said bond.”</p> <p>Further answering, the Surety Company declared in substance that after the agreement for the erection of the building was entered into between the district and the Construction Company and after the bond mentioned had been executed and delivered, the district without the knowledge or consent of the Surety Company made material changes in the contract which are specifically stated.</p> <p>In an additional answer the Surety Company contends that it should be relieved from liability on the bond because in violation of the agreement in that respect the School District made various payments to the contractor without requiring the presentation and filing receipts for labor and materials theretofore furnished for the building.</p> <p>The reply, traverses the new matter in the answer. A jury trial resulted in a judgment for the relator and the Surety Company appeals. On objection to cost bill as allowed by clerk of this court.</p>

<p>Evidence—Judicial Notice—City Charters.</p> <p>1. Under Laws of 1917, page 514, courts are required to take judicial notice of a city charter after a duly certified copy thereof has been filed with the librarian of the Supreme Court.</p> <p>Municipal Corporations—Discharge of Officers—Review.</p> <p>2. Under Portland City Charter 1914, Chapter 4, Section 62, providing for suspending of city officers by the mayor, and Sections 98, 100, 101, 108, and 114, establishing a civil service board before whom an officer removed may demand a hearing, and giving the board power to subpoena and compel the attendance of witnesses, etc., and to reinstate officers or affirm dismissal, the board when so aeting is a quasijudieial tribunal, whose judgment and discretion will not be interfered with by the courts, but whose acts will be reviewed to see if they conform to the provisions of the statutes conferring such power.</p> <p>Municipal Corporations—Officers—Civil Service Board—Hearing on Discharge.</p> <p>3. The civil service board, upon hearing an appeal from officer dismissed, is confined to determination of the questions of the dismissal being for political or religious reasons, or whether in good faith for the improvement of the service, and the officer must sustain the burden of proof, under Portland City Charter 1914, Chapter 4, Section 108; and where, without written findings, a conclusion of law commuting the sentence of dismissal to suspension is made, it will be presumed the charges were sustained.</p> <p>Courts—Orders Nunc Pro Tunc.</p> <p>4. An order for a nrmc pro tune entry of findings not stating what conclusion of fact or law had been theretofore made is insufficient, and such entry must neither add to. nor take from the original.</p> <p>Municipal Corporations—Civil Service Board—Review—Rehearing.</p> <p>5. A civil service board aeting as a giiosi-judicial tribunal for determining whether an officer was properly removed cannot grant a rehearing, unless specifically authorized by law.</p> <p>[As to removal of officers for cause, see note in 135 Am. St. Rep. 250.]</p>

<p>From Linn: William Galloway, Judge.</p> <p>Statement by Mr. Justice Benson.</p> <p>This is a suit to quiet title. The undisputed facts are about as follows: Hugh P. Drennen, a resident of Clatsop County, was the owner of the land at the time of his death, April 13, 1899. John Chitwood was appointed administrator of the estate of the decedent and, having qualified, made a showing to the effect that the estate was insolvent and that it was therefore necessary to sell all of the real estate for the payment of decedent’s debts. Upon such petition and showing, the court made an order on July 31, 1899, in the following form:</p> <p>“Therefore it is hereby ordered and adjudged that citation issue herein to the heirs at law of said deceased and to all others interested in said estate to appear in this court on Monday the 2d day of October, 1899, at 10 o’clock in the forenoon of said day at the courtroom of this court at the courthouse, Astoria, Oregon, to show cause if any exist why the prayer of said petition to sell real estate described therein, should not be granted.</p> <p>“It is further ordered that services on said heirs and others be made by publication of citation, in the ‘Astoria Herald,’ a weekly newspaper published at Astoria, Oregon, having a. general circulation in said county and state, for not less than 10 successive weeks from the first day of publication and that return and proof of publication be made herein.”</p> <p>Pursuant thereto a notice was published in the newspaper designated, for eight successive weeks, the first publication being on August 5th, and the last on September 30th. On October 2d, the specified return day, an order was duly made directing the administrator to sell the land and thereafter the sale was made at public auction at which the plaintiff became the purchaser of the land involved herein, for the sum of $500. Being timber land the property has not since been in the actual possession of anybody, but plaintiff has regularly paid all taxes assessed against it. At the time of the sale it was not known that Drennen had any heirs, although great diligence had been exercised in seeking them. The proceeds of the sale were not sufficient to pay the decedent’s debts and the several creditors accepted lesser amounts in satisfaction of their claims. The sale to the plaintiff was confirmed and an administrator’s deed executed December 7,1899, which was recorded February 8, 1900. No adverse claim to the property was ever made until quitclaim deeds from parties claiming to be nephew and niece of decedent were recorded on July 27, 1915, and January 7, 1916. Upon learning the fact of such record plaintiff began this suit. A trial in the Circuit Court resulted in a decree for plaintiff and defendants appeal.</p>

From Baker: John W. Knowles, Judge. Statement by Mr. Justice Harris. Cbauncey Kirkpatrick bas appealed from a judgment wbicb was rendered against bim as garnishee after the issuance of an execution on a judgment that had been obtained by the Oregon Mill & Grain Company, a corporation, against H. G. Iiyde who once owned a grocery-store. Hyde purchased goods for. his business and became indebted to various wholesalers, including the Oregon Mill & Grain Company.

<p>Insurance—Accidents—Admissibility of Evidence.</p> <p>1. In action on a policy insuring against accidents causing disability to transact business, testimony regarding plaintiff’s suffering, etc., is inadmissible.</p> <p>Insurance—Fraternal Benefit Insurance—Instructions.</p> <p>2. In action on a benefit accident policy, refusing requested instructions that defendant’s constitution and by-laws were binding upon plaintiff, held erroneous.</p> <p>Insurance—Accident Policy—Pleading.</p> <p>3. Plaintiff’s allegation that he had complied with all terms of an accident insurance policy, held sufficient under the direct provisions of Section 88, L. O. L.</p> <p>Insurance—Accident Policy—Departure—Pleading.</p> <p>4. Where plaintiff’s allegation that he had complied with all provisions of an insurance policy was denied by an answer stating the required notice was not given, plaintiff’s reply that sueh failure was excused by his physical disability, etc., held not a departure.</p> <p>Insurance—Accident Policy—Time to Give Notice.</p> <p>■5. An accident policy requiring notice of injury within thirty days, unless insured was unconscious or disabled, is not breached by insured’s failure to give such notice during some seven days following the accident, before plaintiff became physically disabled.</p> <p>[As to notice of accident within time required by terms of accident insurance policy as condition precedent to recovery, see note in Ann. Cas. 19-14D, 412.]</p> <p>Insurance—Accident Policy—Requested Instruction.</p> <p>6. In action on a fraternal accident policy, defendant’s requested instruction that plaintiff was bound by its constitution and by-laws although he and his family were ignorant thereof, was properly refused because of the reference to plaintiff’s family.</p> <p>Insurance—Accident Policy—Jury Question.</p> <p>7. Evidence regarding the manner in which a barber removed an ingrowing hair from plaintiff’s face, with his consent, resulting in poisoning, etc., held to ma,ke a jury question -whether the injury was accidental within a fraternal benefit policy.</p> <p>Insurance—Accident (Policy—“Accidental Means.”</p> <p>8. A wound intentionally made by a barber in removing an ingrowing hair from plaintiff’s face, with his consent, held not made by “accidental means” within a fraternal benefit policy.</p> <p>Insurance—Accident Policy—Time to Sue.</p> <p>9. Where a fraternal benefit association’s constitution required claims to be presented after total recovery, and authorized benefits for 2 years’ disability, a suit for 32 months’ disability, commenced 7 months after refusal of the claim, held brought in time, although the constitution required suit to be brought within 6 months after the claim’s refusal.</p>

<p>Prom Clackamas: James U. Campbell, Judge.</p> <p>Statement by Mr. Chief Justice McBride.</p> <p>This is a suit by Wallace M. Bleything against Maude E. Bleything for divorce. There was a trial, findings and decree for defendant, and plaintiff appeals.</p>

From Multnomah.: Robert Gr. Morrow, Judge. Statement by Mr. Justice Bean. This is an action by the county of Multnomah for the use and benefit of L. H. McMahan upon a contract and bond executed by the Pacific Bridge Company, a corporation, and its surety.

<p>From Polk: Harry H. Belt, Judge,</p> <p>This is a suit hy Edna R. Jackman against the Northwestern Trust Company, a corporation, to rescind a contract for the purchase of land. From a decree in favor of plaintiff, defendant appeals.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit to rescind an executory contract for the sale of 163 acres of land in Polk County, Oregon, to recover the sums of money paid thereon and also the amount expended in making permanent improvements on the premises. The trial court passed a decree rescinding the contract and awarding plaintiff the relief prayed for. Defendant appeals.</p> <p>The following statement of facts appears by the complaint: On November 16,1911, defendant'acquired title to certain property which it induced the plaintiff to purchase on March 1, 1915, for the sum of $3,000 by making false and mistaken representations concerning its boundary lines and the location of the buildings and a spring of water thereon.^ Plaintiff paid defendant $1,075 on the purchase price. On March 31, 1915, she and her husband and their children moved on the premises and remained there until about the first of August of that year. She performed work and labor, furnished materials, and expended money for the improvement of the land of the reasonable value of $247.25.</p> <p>In its answer defendant denies absolutely all the material allegations set forth in the complaint and alleges as a separate defense that on August 20,1913, plaintiff and defendant entered into an executory contract for the purchase and sale of 15.11 acres of land in Logan ville, Marion County, Oregon; that plaintiff paid upon said contract at divers times the sum of $525; that on September 29th of the same year defendant and plaintiff’s husband, W. T. Jackman, entered into a further contract whereby the latter agreed to purchase of defendant an additional 14.42 acres of land in Logan ville for the sum of $1,875 to be paid for by constructing a road across Loganville for defendant; that subsequently during the spring of 1915 plaintiff became dissatisfied with the properties and importuned the defendant to exchange the contracts for said properties, and equities created thereby, for the 163 acres in Polk County; that on March 14, 1915, at plaintiff’s request and in consideration of the payment of the sum of $525 on account of the contract of purchase of the 15.11 acre tract, plaintiff and defendant entered into the agreement which plaintiff seeks to annul in this litigation without any representations being made by the defendant in regard to the physical location or aspect of the Polk County property, save as to acreage, s</p> <p>A reply was filed putting in issue the gist of the answer except as to the transfer.</p>

From Multnomah: Robert G-. Morrow, Judge. This is an action by J. W. Fargo against Joseph B. Dickover and Josiah C. Dickover. From a judgment in favor of defendants, plaintiff appealed. Submitted on brief under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. si). Statement by Mr. Justice McCamant. This action was brought in the Circuit Court for Multnomah County June 15, 1915.

<p>Appeal and Error—Denial of Nonsuit—Review.</p> <p>1. On assignments of error directed wholly to denial of defendant’s motions for nonsuit and directed verdiet, the only question is whether, viewing the evidence in the light most favorable to plaintiff, it warranted the judgment.</p> <p>Master and Servant—Injury to Servant—Failure to Warn—Evidence.</p> <p>2. In an action by a trackman for injuries based on defendant railroad’s negligence in failing to give warning of approaching train, held, under evidence, that jury was authorized to infer that no whistle was sounded.</p> <p>Master and Servant—Injury to Servant—Duty to Warn.</p> <p>3. Where defendant railroad’s employees saw plaintiff at work on a switch when the train was about a third of a mile away, it was their duty to sound the whistle or ring the bell, the weather being cold and windy, so that plaintiff had his cap pulled down over his ears.</p> <p>Master and Servant—Injury to Servant—Contributory Negligence— Sufficiency of Evidence.</p> <p>4. In an action by a trackman for injuries based on defendant railroad’s negligence in failing to give warning of approach of train, held, under evidence, that jury was entitled to infer that plaintiff had no knowledge of the approach of the train prior to the aeeident.</p> <p>Master and Servant—Injury to Servant—Federal Employers’ Liability Act—Contributory Negligence.</p> <p>5. Where the track on which plaintiff was working was used by defendant railroad in interstate commerce, plaintiff was within the protection of Act Cong. April 22, 1908, Chapter 149, Section 3, 35 Stat. 66 (U. S. Comp. Stats. 1916, § 8659), and Ms contributory negligence would not bar recovery.</p> <p>Master and Servant—Injury to Servant—Assumption of Risk—Custom.</p> <p>6. Under Act Cong. April 22, 1908, Chapter 149, Section 4 (U. S. Comp. Stats. 1916, § 8660), as to assumption of risk, where a track-man working on a track used in interstate commerce was run down by a train which gave no warning, recovery could not be defeated on theory of assumption of risk in the absence of evidence of a custom, of which he had knowledge, to operate trains without giving warning.</p> <p>[As to assumption of risk under Federal Employers’ Liability Act, see note in Ann. Cas. 1915B, 481.]</p>

<p>From Multnomah: T. E. Duffy, Judge.</p> <p>This is a suit by Vincent Cook against Oak Nolan, A. E. Nolan, Annie E. Nolan, his wife, and Home Installment Company, a corporation, to enjoin the foreclosure of and to cancel a mortgage, and to quiet the title in plaintiff. From a decree in favor of plaintiff, defendants appeal.</p>

From Multnomah: Calvin U. Gantenbein, Judge. On motion to release attached property. This is an action by the Bank of Kenton, a corporation, against A. C. Preble to recover the amount due on a note. There were findings and judgment in favor of plaintiff and defendant appealed.

Prom Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Chiee Justice McBride.

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>On motion of respondent to dismiss appeal.</p>

<p>Highways—Levying Special Road Tax—Budget Law.</p> <p>1. Under Laws of 1915, page 297, making the budget law (Laws 1913, p. 458) applicable to all districts, etc., having power to levy taxes, except cities of over 150,000 inhabitants, failure of a road district in levying a special road tax to eomply with the budget law invalidates the levy, notwithstanding the people of the district assemble in a body to vote on the levy.</p>

<p>From Hood River: William L. Bradshaw, Judge.</p> <p>Suit by Wind River Lumber Company, a corporation, against Thos. F. Johnson, as sheriff of Hood River County, Oregon, a municipal corporation. From a decree dismissing the suit plaintiff appealed.</p>

From Multnomah: Calvin IT. Gantenbein, Judge. Action by Otto Williams against Gay M. Lombard and Mary T. Lombard, husband and wife, to recover damages for personal injuries received by being run down by an automobile owned by defendants. From a judgment in favor of plaintiff for $1,250, rendered upon a verdict, defendants appeal. Statement by Me. Justice Benson.

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action brought by the Pelton Water Wheel Company against the Oregon Iron and Steel Company for the recovery of the possession or the value of a certain double Pelton-Francis turbine generator, with the appurtenant equipment, which was contracted to be sold by the former company to the Pacific Electric Engineering Company, an Oregon corporation, which will hereafter be designated as the Engineering Company, under a contract by the terms of which the title thereto was to remain in the seller until the price was fully paid. This machine was resold by the Engineering Company to the defendant Oregon Iron and Steel Company, the latter paying for it in full. The defendant claims this was done without any actual notice of the plaintiff’s claim for security. The Engineering Company paid part of the purchase price and the plaintiff is claiming the balance, or a return of the generator, from the defendant, against which claim the defendant sets np several defenses. The cause was tried hy the court without the intervention of a jury. The court made findings of fact and rendered judgment in favor of the plaintiff for $1,719.35, from which defendant appeals.</p> <p>On September 1,1909, the Pelton Water Wheel Company made a written contract to sell to the Engineering Company the turbine generator, the subject of this suit, for $5,600. This contract of sale is annexed to the hill of exceptions in the case. It contains ten typewritten pages of specifications and three pages of printed matter setting forth the terms of the sale. Among other terms contained in the printed matter are the following paragraphs:</p> <p>“That the legal title in and to the apparatus or machinery described in said specifications shall not pass from the company until all payments provided for in this agreement, including deferred payments and any notes or renewals thereof, shall have been fully made hy said purchaser in cash; and the same shall hold true whether the said apparatus or machinery be attached to the realty or not; and the purchaser agrees to take every step necessary to assure and maintain in the company said legal title to all of said apparatus and machinery. ’ ’</p> <p>“If default he made in any of the payments due the company in the manner, form, and at times hereinafter specified, the company may retain any and all payments which shall theretofore have been made, as liquidated damages, and shall be entitled to the immediate possession of the property described in said specifications and referred to herein, and may enter upon the premises of the purchaser where such apparatus or machinery shall be located or stored and remove the same, at such time and for such purpose as it may desire, nor shall said entry and removal be held to constitute any prejudice to the right of the company to recover or sue for any further damages by reason of the purchaser’s failure to make the payments required or to surrender the said apparatus or machinery when required.”</p> <p>The contract was signed by the Pelton Water Wheel Company and by the Engineering Company, as purchaser, and underneath the latter’s signature was an approval as follows: Approved for the Oregon Iron and Steel Company, A. S. Patullo, secretary.” Pursuant to the terms of the above agreement the turbine generator was delivered to the Engineering Company which resold it to the Oregon Iron and Steel Company for $6,020. The full purchase price was paid and it was installed in the latter company’s plant near Oswego, Oregon. Of the $5,600, the purchase price to be paid by the Engineering Company to the Pelton Water Wheel Company, about $3,900 was paid, leaving a balance of $1,719.35 due on the date when this action was started. After making such part payments, the Engineering Company fell behind and finally, to cover its balance, executed a number of notes to the Pelton Water Wheel Company. Subsequently, in 1913, the Engineering Company went through bankruptcy and paid a dividend, but the Pelton Water Wheel Company never proved its claim against the insolvent estate, and, on September 9, 1915, brought this action against the Oregon Iron and Steel Company.</p> <p>Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).</p>

<p>From Clatsop: James A. Bakin, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by G. M. Grimes against tbe City of Seaside, a municipal corporation and G. E. Shaver its then marshal, to annul a contract for tbe paving of a part of Broadway Street, formerly known as Bridge Street, to enjoin, proceedings for the collection of a delinquent assessment, and to cancel the docket of city liens. From a decree declaring the assessment valid, the lien thereof subsisting, foreclosing such encumbrance and directing a sale of the land benefited by the improvement, the plaintiff appeals.</p>

<p>Attorney and Client—Employment—Evidence—Satisfaction of Judgment.</p> <p>1. That -defendant, sued for money collected by him on a judgment obtained by plaintiff, signed the satisfaction in his name as attorney for plaintiff, is some evidence that plaintiff employed him as attorney in the action in whieh the judgment was recovered; “attorney,” as distinguished from “counsel,” having under Sections 1074, 1083, L. O. L., power to satisfy judgment.</p> <p>[As to implied authority of attorney in conducting litigation, see note in 132 Am. St. Rep. 148.]</p> <p>Attorney and Client — Action for Money Collected — Presumption — Burden of Proof.</p> <p>2. On evidence that plaintiff owned a judgment and that defendant as attorney collected it, the presumption is that plaintiff owned all the money collected; so that, if defendant would reduce plaintiff’s recovery or postpone the right, he must do so by offering evidence, plaintiff not being required to anticipate defenses relied on.</p> <p>Attorney and Client—Action for Money Collected—Demand—Necessity of Proof.</p> <p>3. The answer in an action against an attorney for money collected claiming part of the money and justifying possession and detention of the remainder, it is unnecessary for plaintiff to give evidence of demand of payment, which it is obvious would have been idle.</p>

From Multnomah: George N. Davis, Judge. . Statement by Mr. Justice Mc-Camant. A former appeal taken in this cause was heard and determined: See 77 Or. 131 (149 Pac. 548). It is unnecessary to restate the facts set out in the former opinion. The mandate of this court was entered in the journal of the lower court August 6, 1915. Thereafter it was discovered by counsel for the city that the judgment from which defendants had appealed was not entered in the journal.

From Multnomah: Robert Gr. Morrow, Judge. Statement by Mr. Justice McCamANT. This is an action brought to recover a balance of commissions alleged to be due plaintiff for the sale of parcels of defendant’s property in Multnomah County. It appears that on March 9, 1912, the defendant entered into a contract with E. Z. Ferguson and H. L. Hamblet for the sale of the property in question and for the performance of other services.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Bean. The defendants, W. N. Daniels and J. Q. Daniels, partners under tbe firm name of La Grande Creamery Co., commenced an action in tbe Circuit Court for Multnomah County against the plaintiff, D. M. Watson, to recover $2,430.30 upon an account and on October 22, 1913, attached the real property involved in this suit.

<p>From Multnomah.: William N. Gatens, Judge.</p> <p>Statement by Me. Justice Bean.</p> <p>This is a suit for a divorce instituted by Mrs. Mary F. W. Y. Matlock against J. D. Matlock. The complaint was filed in the Circuit Court for Multnomah County on June 27, 1916. Personal service was had on the defendant in Lane County June 28, 1916. Mr. Matlock, the defendant, appeared specially and moved to dismiss the suit on the ground that the court did not have jurisdiction of the cause; and supported his motion by affidavit. Upon the motion being overruled he filed an answer challenging the jurisdiction of the court to proceed with the cause, alleging in detail the same facts as set forth in the affidavit to the effect that prior to the institution of the present suit he had filed a suit for divorce against Mrs. Matlock in the Circuit Court for Lane County on May 8, 1916; that summons was issued and on the next day was placed in the hands of the sheriff of Multnomah County for service; that Mrs. Matlock could not be served in either Lane or Multnomah counties; that on June 27, 1916, he filed an affidavit for publication of summons; that on July 3d of the same year the Circuit Court for Lane County granted an order of publication on the ground that the defendant was concealing herself within the state for the purpose of avoiding service. As shown by affidavit Mrs. Matlock did not controvert the fact that Mr. Matlock had commenced his suit in Lane County on May 8th, but denied that she had concealed herself for the purpose of avoiding service. The answer pleaded that the Circuit Court for Lane County having jurisdiction of the premises adjudged that Mrs. Matlock had concealed herself for the purpose of avoiding service; that the facts stated in the affidavit for publication were true and that in all respects it was sufficient to justify an order for publication. Attached to the answer is a copy of the complaint filed in Lane County from which it appears that both complaints were for a divorce, involving the status of the parties, and that the issues necessary to be determined in both eases were the same. Mrs. Matlock demurred to this answer on the ground that it appeared therefrom that' the Multnomah County Court acquired jurisdiction before the completion of service in the Circuit Court for Lane County. This demurrer was sustained by the court and the defendant refused to answer further. On September 9, 1916, the court made an order directing the defendant to pay plaintiff the sum of $500 for plaintiff’s use in prosecuting the suit and the sum of $100 per month for her maintenance pending the determination of the cause. Defendant appealed to this court from the order sustaining the demurrer and the order allowing suit money and temporary alimony.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Harris. This is an action for damages alleged to have been caused by fraudulent representations inducing the exchange of lands. The plaintiff Lottie E. Ward owned, subject to a $1,700 mortgage, real property in Portland, Oregon. The defendant, Thomas A. Jenson, was in the possession of 14.34 acres of land in Orange County, California, but he owned only 4.34 acres.

From Columbia: James A. Eakin, Judge. Action by tbe Meridianal Company against J. Kenyon Bourne, to recover tbe amount due upon a promissory note. From a judgment in favor of plaintiff, defendant appealed. Respondent files motion to dismiss appeal. Statement by Mr. Chief Justice McBride. This was an action upon a promissory note. The answer admitted the execution of the note but alleged failure of consideration and fraud, and also pleaded certain counterclaims.

From Multnomah.: John P. Kavanaugh, Judge. Statement by Me. Justice Haréis. Although this proceeding has sometimes been referred to by the litigants as a suit to quiet title, in reality it is more in the nature of a suit to remove cloud from title.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Harris. Brayton & Lawbaugh, Ltd., a corporation, brought this suit against the Monarch Lumber Company, a corporation organized under the laws of Oregon, the Monarch Lumber Company, a corporation created under the laws of Maine, the Assets Bealization Company, a New Jersey corporation with an office in Chicago, William W. Crawford as an individual and as a trustee, W. T. Patton and John Bjelik.

From Clackamas: James U. Campbell, Judge. Statement by Mr. Chiee Justice McBride. This is an action of ejectment.

From Multnomah: Henry E. McG-inn, Judge. Statement by Mr. Justice Moore. This suit was commenced July 17, 1915, by tbe Oregon-Washington Railroad & Navigation Company, a corporation, against Frank H. Reed to enjoin interference with a railway right of way and to quiet the title thereto.

Prom Multnomah: Henry E. McGinn, Judge. This is a suit by Minnie T. Reed against the Oregon-Washington Railroad & Navigation Company, a corporation, to reform a deed and enjoin trespassing upon plaintiff’s premises. Prom a decree adverse to plaintiff, she appealed.

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Moore. This is a suit to enjoin the sale of bank stock and to enforce a lien thereon.

Statement by Mr. Justice Bean. This is a suit to establish the right of the City of Eugene to a street known as Agate Avenue. In 1890 “Fairmount” Lane County, Oregon, was platted into lots and blocks with streets and alleys. It was located some distance beyond the limits of the City of Eugene as the same then existed. The addition was embraced within the limits of the donation land claim of William Smith and wife, with the west line of the claim as the west line of Fairmount.

<p>Infants—Support—Mother's Aid—Application.</p> <p>1. Under Lawsi of 1913, page 75, entitling every woman who has children under the age of 16 years, and whose husband is dead, and the support of whose child or children is dependent wholly or partly upon her labor, to receive assistance from the county, an application by a widow for support which discloses that her husband left an estate consisting partly of life insurance, but which failed to disclose whether he died testate so that it could be determined to whom the property belonged, and also averred that the widow had no money in the bank, so that' it did not appear that either of her children were dependent upon her labor, was insufficient to show that the applicant was entitled to support.</p> <p>Mandamus—Compelling Court to Act on Petition.</p> <p>2. Under Section 613, L. O. L., authorizing the issuance of a writ of mandamus to compel the performance of an aet which the law specially enjoins as a duty resulting from an office, a petition by a widow for a writ of mandamus to compel the county juvenile court to act upon her application for aid from the county for the support of her children will be denied where the application fails to show that she is entitled to aid.</p> <p>[As to right of private person to mandamus to enforce performance of duty by court or magistrate, see note in Ann. Cas. 1912A, 1118.]</p>

From Crook: T. E. J. Duffy, Judge. Statement by Mr. Justice Bean. This is an action for $1,149.46, based upon seven different accounts assigned to plaintiff for collection; one for printing advertisements amounting to $111.35, and the others for balances on account of goods, wares and merchandise. The answer consists of general denials.

From Marion: Percy R. Kelly, Judge. Statement by Mr. Justice Harris.

From Clatsop: Jambs A. Eakin, Judge. Statement by Mb. Justice MoCamant. In September, 1915, Douglas Land Company filed a petition with the board of equalization for Clatsop County praying for a reduction in the assessment of its properties for the year 1915. The properties consist of several hundred lots in sixteen platted subdivisions of the county and four hundred and eighty acres of land in township 4 north of range 9 west of the Willamette Meridian.

From Clatsop: James A. Eakin, Judge. Action by Charles Franklin Provo against the Spokane, Portland & Seattle Railway Company, a corporation, to recover damages for a personal injury. From a verdict and the consequent judgment in favor of plaintiff, defendant appealed. Statement by Mr. Justice Mc-Camant. This is an action brought to recover damages for a personal injury sustained by plaintiff August 26,1916.

From Lane: G-eorge F. Skip worth, Judge. Statement by Mr. Justice Moore. - This was an action to recover damages for the alleged breach of an agreement.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Burnett.

<p>Pleading—Judgment—Answer.</p> <p>1. Where there was traversed matter in defendant’s answer strongly appealing to court of equity against granting plaintiff any relief, the sustaining of plaintiff’s motion for decree on the pleadings was error.</p> <p>Municipal Corporations — Public Improvements — Assessments — Restraining Collection—Grounds.</p> <p>2. Ordinarily a court of equity will not interfere to restrain the collection of a special assessment for municipal improvements in cases of mere illegality or irregularity, but its jurisdiction is confined to cases where the tax is not authorized by law, or is assessed on property not subject to taxation, or by persons without authority.</p> <p>[As to injunction to restrain the collection of taxes and assessments, see notes in 69 Am. Dec. 198; Ann. Cas. 1915C, 755.]</p> <p>Municipal Corporations—Public Improvements—Special Assessments.</p> <p>3. Portland City Charter, Section 397, relating to assessment for street improvements, declares that no assessment shall be held invalid by reason of mistakes, delays, errors, or irregularities in any act or proceeding in the improvements of a street. Section 400 declares that, whenever an assessment for the improvement of any street shall be annulled, or when the council shall be in doubt as to the validity of any such assessment, the council may by ordinance make a new assessment or reassessment on the land benefited by such improvement. Plaintiff, the owner of property abutting on a street, sought to have set aside as a cloud on his title the lien of a special assessment on the ground that, when the proceedings for the improvement were initiated, the street had already been paved, and that thereafter no other pavement had been constructed. Held that, without any showing that the city was not ordering reassessment for improvements already made, plaintiff was not entitled to any relief, it seeming that he was seeking to avoid assessments for improvements already constructed, and hence a decree on pleadings in favor of plaintiff, whose complaint alleged the foregoing acts, waB erroneous, particularly as the eity’s answer alleged that the assessment was a reassessment on account of omissions in the first; for equity will not interfere to restrain the collection of an assessment for mere illegality or irregularity.</p> <p>ON PETITION POE REHEARING.</p> <p>Municipal Corporations — Street Improvements — Reassessment —< Amendment of Jurisdictional Defects in Ordinances.</p> <p>4. Under Portland City Charter, Section 400, all manner of errors and irregularities in ordinances for assessment of street improvements may be corrected whether jurisdictional or otherwise, and a reassessment made for pavement already laid.</p> <p>Municipal Corporations — Street Assessments — Freeholder’s Right to he Heard.</p> <p>5. Under such charter provision, a freeholder of Portland should make his objection to street improvements in the beginning, since it is never too late for the city to amend a defect in ordinance for assessment therefor, provided only that somewhere the freeholder has had opportunity to be heard before his property is taken for payment of the tax.</p>

<p>Appeal and. Error—Judgment on Demurrer—Acceptance of Facts in Complaint as True.</p> <p>1. For purposes of plaintiff’s appeal from judgment rendered on demurrer to the complaint, the statement of facts found in the complaint must be accepted as true.</p> <p>Contracts—Consideration—Contract to Pay Commission.</p> <p>2. The services rendered by a corporation employed to procure an exchange of realty were the consideration for its employer’s promise to pay commission, because the services to be rendered furnished the only inducement for the promise.</p> <p>[As to when the consideration for a contract is sufficiently expressed, see note in 60 Am. St. Rep. 432.]</p> <p>Brokers—Employment of Broker—Writing Stating Amount of Commission—Statute of Frauds.</p> <p>3. By the statute of frauds, Section 808, subdivision 8, L. O. L., rendering void an agreement authorizing or employing an agent or broker to sell or purchase realty for compensation or a commission, the writing employing a broker must state the amount of the commission agreed to be paid to him, that being a requirement predicated on the fact that the amount of the commission agreed upon constitutes a term of the contract.</p> <p>Words and Phrases—“Consideration”—‘Trice.”</p> <p>4. “Price” and “consideration” should not be confounded, for, though sometimes the same, they are not always identical.</p> <p>Brokers—Contract of Employment of Broker to Exchange Realty— Writing Expressing Consideration.</p> <p>5. The writing signed by an owner of property employing a corporation to procure its exchange, reading that he agreed to pay the corporation in cash as a commission for its services 2% per cent on the selling price of the price for which the property was sold or at which it was exchanged, satisfied the statute of frauds, Section 808, subdivision 8, L. O. L., as to agreements employing agents or brokers to sell or purchase realty, by expressing the consideration.</p> <p>Brokers—Contract—Performance of Action on Which Promise was Conditioned—Conversion of Offer Into a Binding Agreement.</p> <p>6. Where a corporate realty broker, employed to effeet an exchange of property, did so, thus performing the aet on which its employer’s promise to pay commission was conditioned, it furnished the consideration necessary to convert its employer’s promise to pay commission into an obligation to pay it, thus transforming into a binding agreement, satisfying the statute of frauds, Section 808, subdivision 8, L. O. L., its employer’s written offer to pay commission for services in effecting exchange.</p> <p>Frauds, Statute of—Good Contract.</p> <p>7. Whatever would be a good contract under the law of contract in the absence of the statute of frauds is a good contract in the presence of the statute, providing only that it complies therewith by being in writing and expressing the consideration.</p> <p>Frauds, Statute of—Requirements of Writing.</p> <p>8. A writing, to satisfy the statute of frauds, Section 808, h. O. L., must show the contracting parties, intelligently identify the subject matter, disclose the terms and condition of the agreement, express the consideration, and be signed by the party to be charged.</p> <p>ON PETITION EOR REHEARING.</p> <p>Contracts—Consideration—Broker’s Contract.</p> <p>9. An owner’s promise in Ms written offer to pay a commission for the sale or exchange of realty was designed to procure a broker’s services, such services to be rendered are taken as the consideration for the promise.</p> <p>Brokers—Contract—Statute of Frauds—Consideration.</p> <p>10. Under Section 808, subdivision 8, L. O. L., requiring broker’s contract to buy or sell to state the consideration, while the consideration must be expressed, it need not be formally and precisely expressed, and it is sufficiently expressed if it appears by necessary inference.</p> <p>Brokers—Statute of Frauds—Written Offer—Parol Acceptance.</p> <p>11. A written offer may constitute a sufficient memorandum of the broker’s written contract required by Section 808, subdivision 8, ' L. O. L., to charge the party making it, if it is later accepted by parol.</p>

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice Benson. The substance of the complaint in this action to recover damages for breach of contract is that, prior to January 18, 1915, plaintiff was the owner and in possession of certain real property in Hood Biver County. On the date mentioned the defendant Helen B. Holbrooke was the assignee of two mortgages which were liens upon the property in question to secure an aggregate indebtedness of about $9,000.

From Coos: George F. Skipworth:, Judge. Statement by Mr. Justice MoCamant. In 1890 the defendant S. C. Rogers and W. G. Webster contracted for the purchase of Lots 2, 3, 6 and 7 in Block 2 of E. B. Dean & Company’s Second Addition to Marshfield. A deed in their favor was executed December 1, 1892; they held the property as tenants in common. Webster’s interest in the property immediately became subject to a number of liens.

From Multnomah: Calvin TJ. Gantenbein, Judge. Statement by Mr. Justice Moore. This is an action by the Depot Bealty Syndicate, an Oregon corporation, against the Enterprise Brewing Company, a California corporation doing business in this state, to recover $1,450 as arrears of rent reserved in a lease executed by the plaintiff to John Balsón, the payment of which sum is alleged to have been guaranteed by the defendant.

<p>Evidence—Parol Evidence Affecting Writing.</p> <p>1. Section 713, L. O. L., providing that, where the terms of an agreement have been reduced to writing, it is to be considered as containing all of them, and there can be no evidence thereof other than the contents of the writing, prevents parol evidence, in action on a bond, conditioned that the obligors erect a sawmill of certain capacity on their property, that it was the understanding of the parties that a sawmill could net be erected there unless the streets were vacated.</p> <p>Contracts—Performance—“Impossible.”</p> <p>2. Contract of parties to build a mill on their property is not “impossible” of performance, so as to excuse nonperformance, because the mill could not be profitably operated without vacation of streets; impossible not meaning impracticable.</p> <p>Bonds—Conditions—Breach.</p> <p>3. Obligation on a bond, conditioned that the obligors build a</p> <p>mill on their property, is matured by their selling their property without constructing the mill. „</p> <p>Contracts—Possibility of Performance—Vacation of Street—Evidence.</p> <p>4. As showing willingness of a city council to vacate streets for industrial plants, an ordinance for such purpose, though not complying with statutory requirements, is admissible.</p> <p>[As to right of action for damages for breach of unenforceable contract, see note in Ann. Cas. 1915D, 540.]</p> <p>Damages—Liquidated Damages or Penalty.</p> <p>5. A bond running to owners of property in the neighborhood, conditioned to pay a certain sum as liquidated damages for failure of obligors to build a mill on their property, the damages being difficult or impossible of proof and measurement, is one for liquidated damages.</p> <p>Damages—Liquidated Damages—Reasonableness.</p> <p>6. The reasonableness of damages liquidated by agreement is to be determined by the conditions in the minds of the parties when their agreement was made.</p> <p>Damages—Liquidated Damages—Burden of Proof.</p> <p>7. Parties sued for liquidated damages have the burden of showing that no damages eould have flowed from their default in the performance of their agreement.</p> <p>Appeal and Error—Directing Judgment.</p> <p>8. The case being one in which it can be determined from the record what judgment should have been entered, the appellate court will, under Article VII, Section 3, of the Constitution, direct the entry thereof.</p> <p>ON PETITION EOR REHEARING.</p> <p>Damages—Liquidated Damages—Effect—Agreement.</p> <p>9.Where the parties by contract stated a reasonable sum as liquidated damages, neither could urge that the damages were greater or less than the amount agreed upon.</p>

From Klamath: Delmon V. Kuykendall, Judge. A proceeding by Henrietta F. Melhase against Gustav Melhase, executor of the estate of Frederick Melhase, deceased, Bertha Lehenbower, Clars Frank, Emma Ketsdever, Alford Melhase, Richard Melhase and Gustav Melhase, to set aside the probate of and to cancel a will made by Frederick Melhase. There was a decree for the plaintiff and defendants appeal. Statement by. Me. Chief Justice McBeide.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Harris. The defendant appealed from a judgment which was awarded to the plaintiff on account of personal injuries sustained by her. The plaintiff was a passenger on one of the street-cars operated by the defendant in the City of Portland. The main room or body of the car was separated from the vestibule in the front end by a partition wall extending across the car.

<p>From Crook: T. E. J. Duffy, Judge.</p> <p>Statement by Mb. Justice Moore.</p> <p>This action was commenced by Alice D. Pratt in a Justice’s Court of Crook County, Oregon. The complaint reads:</p> <p>“Comes now the above-named plaintiff, and for cause of. action against the above-named defendants, complains and alleges as follows, to wit: 1. The plaintiff complains and alleges that on or about the 25th day of March, 1916, in Crook County, Oregon, the plaintiff was the owner of and entitled to the possession of one Jersey bull calf of the age of about five months; that said calf was sired by pure bred Jersey bull out of an extra good high-grade Jersey milk cow; that said calf was of the value of $100.00.</p> <p>“2. The plaintiff alleges that the above-named defendants, Joe Gibson, Grover Gibson, Ealph Gibson, and Earnest Gibson, acting together caught the above mentioned calf and castrated him on the 25th day of March, 1916, at their ranch in Crook County, Oregon, to the damage of the plaintiff in the sum of $100 (one hundred dollars).”</p> <p>Judgment was demanded for that amount and for the costs and disbursements of the action.</p> <p>The answer is as follows:</p> <p>“Comes now the defendants in the above-entitled action and admit, denies and alleges as follows, to wit: We admit all of section 1 (one) of the plaintiff’s complaint, except the alleged value of the calf. We deny each and every allegation of section 2 (two) of plaintiff’s complaint, and allege that we neither acting together nor single handed did castrate nor in any way harm any calf belonging to the above-named plaintiff.”</p> <p>Judgment was demanded for the costs and disbursements.</p> <p>The cause was tried in that court and a verdict was ' returned in plaintiff’s favor and against Joe Gibson alone for $75, as damages, and a judgment therefor and for the costs and disbursements having been rendered, he appealed to the Circuit Court for that county. He interposed in that court a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was overruled and the cause being retried resulted in a like verdict and judgment. Upon motion, however, it was ordered that unless the plaintiff remitted $37.50 of the sum so recovered, the judgment should be set aside and a new trial granted. This condition was complied with and from the amended judgment the defendant against whom the judgment was given appeals to this court.</p>

From Lane: George F. Skipworttt, Judge. Statement by Mr. Justice Benson. Plaintiff held an unrecorded chattel mortgage on some grain, consisting of wheat and oats, to secure a valid subsisting debt. The property remained in the possession of the debtor. Two executions based upon regular and valid judgments were placed in the hands of the defendant as constable.

<p>From Coos: George F. Skipworth, Judge.</p> <p>Suit by S. A. Sanford against W. E. Pike, Hannah P. Pike, P. L. Phelan, W. B. Hammitte and First National Bank of Boseburg, a corporation, in which suit there was a decree in favor of the bank, and plaintiff and the defendant, First National Bank, appeal.</p> <p>Statement by Mr. Justice Mc-Camant.</p> <p>This is a suit brought to foreclose a deed of trust executed by the defendants Pike to secure an indebtedness of $13,500 owing by them. The deed ran to T. B. Sheridan as trustee for the First National Bank of Boseburg and was assigned by him to plaintiff. When the deed was executed, it was the belief of the defendants that the entire debt secured was held by the First National Bank of Rosebnrg. It subsequently transpired that $4,000 of the debt belonged to the defendant W. B. Hammitte, who held one of the notes making up the aggregate of $13,500. Hammitte never authorized or ratified the taking of the deed of trust as security for his share of the debt and was awarded no relief in the lower court except a judgment for costs.</p> <p>The defendants Pike admit that they executed a note to the First National Bank of Roseburg for $13,500 under date of April 15, 1910, signed by W. E. Pike & Co. The partnership consisted of the defendants W. E. Pike and Hannah P. Pike. There is no dispute that this sum is the balance of a debt at one time owing by W. E. Pike and another to the bank. The answer pleads no payments in addition to those admitted in the complaint. The substance of the defense is found in the following allegations of the answer:</p> <p>“Defendants further allege that said trust deed was executed under the following circumstances, to wit: At said date and long prior thereto the defendant, W. E. Pike, as Trustee, had an open running account with the First National Bank of Roseburg, and had deposited large sums of money with said bank and there was at the time of the execution of said trust deed a large amount of money due from said bank to said W. E. Pike, Trustee, but said account had never been settled or adjusted and there were large amounts of interest due thereon which had never been computed or settled, and at the time of giving said trust deed the defendant, W. E. Pike, was the owner of the greater portion of said account standing in the name of "W. E. Pike, Trustee, and the defendant, Hanna P. Pike, was one of the beneficiaries of said trust account and said trust account had become at that time the property of said defendants, with the exception of about two thousand five hundred dollars, and it was at that time agreed between these defendants and said First National Bank, acting through the said T. B. Sheridan, its president, that said trust account should he audited, computed and adjusted, as soon as the employees of said Bank could perform the necessary clerical work, and credits that might appear therefrom should he given so that all of the claims existing between these defendants and said First National Bank should be settled in full. Defendants further allege that said First National Bank and said T. B. Sheridan have entirely failed to carry out said agreement and no statement of said trust account has ever been rendered to these defendants or to said Trustee, except partial accounts rendered from time to time, which did not purport and which were not intended to be complete statements of the account between said Bank and said Trustee, but these defendants allege that a true statement of said account is hereto annexed, marked Exhibit ‘A’ and made a part hereof, and that there is now due upon said account from said First National Bank of Boseburg, to W. E. Pike, Trustee, the sum of $16,826.04 and that said account is now the property of these defendants, with the exception of a sum amounting to about two thousand five hundred dollars.”</p> <p>“Defendants further allege that at the time of the giving of the trust deed referred to in Paragraph 5 hereof there was in truth and in fact nothing due from these defendants, or either of them, to said First National Bank of Boseburg, nor to said T. B. Sheridan, and a full accounting at that time would have shown a balance due to these defendants, and the supposed consideration in said trust deed has entirely failed but these defendants were induced to sign said trust deed for the purpose of securing to said First National Bank of Boseburg any balance which might be found to exist in its favor, but in truth and in fact there was nothing due said Bank at said time and if said Bank and said Sheridan had at that time furnished these defendants a complete statement of their account, including the account standing in the name of W. E. Pike, Trustee, it would have been ascertained at that time, that there was nothing due from these defendants, but these defendants, being unable to ascertain a true statement of said account at said time, were induced to believe and did believe that there was at that time a large sum due from these defendants to said Bank.”</p> <p>The lower court found for plaintiff, but subsequently set aside the decree in plaintiff’s favor and entered a decree against the First National Bank in the sum of $7,776.24. From this latter decree plaintiff and the defendant bank appeal.</p>

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Bean. This is an action brought by the plaintiff, City of Seaside, a municipal corporation, to recover the sum of $7,949.09 together with interest thereon at the rate of 6 per cent per annum from November 4, 1910, upon a bond to insure the fidelity of E. N. Henninger, as treasurer of Seaside, during his term of office of two years.

From Josephine: Frank M. Calkins, Judge. Statement by Me. Justice Burnett. By an ordinance adopted by its legal voters the City of Grants Pass granted a franchise to the defendant Rogue River Public Service Corporation to plant poles, string wires and do other things necessary for the establishment of an electric plant in that town.

<p>Prom Josephine: Prank M. Calkins, Judge.</p> <p>Proceedings instituted by the directors of the Grants Pass Irrigation District to obtain from the court an order declaring valid and legal all the steps leading up to the organization of the district and the election held as to the issuance and sale of bonds of the district. One of the land owners affected by the organization of the district filed a general demurrer, which, being overruled, declined to further plead; the court entered a decree approving both the organization of the district and the bond issue, from which decree the demurrant appeals.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Action by Jobn Ditcbbnrn against R. E. Capíes and A. B. Capíes to recover an alleged balance due on a promissory note. Trial to tbe court and from a judgment rendered in favor of defendants, plaintiff appealed. Statement by Mb. Justice Mc-Camant. This is an action brought; to recover a balance of $150 still unpaid on a note for $400 given by defendants to plaintiff.

<p>From Multnomah: John P. Kavanaugh, Judge.</p> <p>On petition for rehearing.</p>

From Lake: Robert G. Morrow, Judge. Suit by L. G. Thomas, Lewis E. McCulley and Elmer M. McCulley against E. C. Thruston relative to the use of waters of Cogswell Creek. From the decree rendered the defendant attempts to appeal, but no notice of appeal was served on the new parties brought in on motion. The facts are set forth in the opinion of the eourt.

From Clackamas: George R. Bagley, Judge. Statement by Mr. Justice Moore. This suit was instituted September 17,1917, by Julia Cooper, against the City of Oswego, a municipal corporation, and its executive officers and a contractor, to enjoin a threatened outlay of money raised by direct taxation, in improving an alleged county road within the corporate limits of the city. From a decree granting the relief prayed for in the complaint, the defendants appeal.

From Tillamook: George R. Bagley, Judge. Statement by Mr. Justice McCamant. This is an action brought for the conversion of an automobile. The defendants justify under an execution sale on a judgment which they allege was recovered by tbe defendants Small and Urie against tbe plaintiff Spencer in a Justice’s Court in Tillamook County. Plaintiffs deny that any such judgment was rendered.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mb. Justice Benson. This is a suit to remove a cloud from the title to real estate. The history of the transactions involved is about as follows: W. F. Stine and F. S. Belcher were the joint owners of two pieces of residence property in the City of Portland.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mb. Justice Bean.</p> <p>On May 14, 1912, plaintiff, the Alliance Trust Company, Limited, loaned to defendant, Fanny E. Hubbard, $45,000 and as security for the payment thereof she executed and delivered to it a mortgage upon the east half of lots 1 and 2 in block 20 in the City of Salem, upon which the Hubbard Building- is situated at the southwest corner of State and High Streets, the mortgage covering other city property and also a farm of 202 acres near Salem. On June 7,1912, the mortgagor repaid $15,000 of this loan and the property in block thirty of the City of Salem was released from the mortgage and the principal of the debt was reduced to $30,000. The loan was to be used in the erection of the Hubbard Building. Subsequently the mortgagor changed her plans in regard to the building and concluded to' add two additional stories to the original plan, making four stories. To enable her to finance her larger plans she applied to the plaintiff for an increase of loan. On September 16, 1912, plaintiff loaned her an additional sum of $30,000, and to secure the same she executed to plaintiff a second mortgage covering the Hubbard Building property and the farm. This loan was evidenced by a series of nine principal notes, eight for $2,000 each, one maturing on the first day of May and November of each year from November 1, 1913, to May 1,1917, and one for $14,000 maturing November 1, 1917. Upon the completion of the building Mrs. Hubbard found herself unable to meet her obligations to her' contractors, the defendants, Welch Brothers, and in order to prevent lien foreclosures she applied to plaintiff for a third loan of $10,000. On July 28, 1913, plaintiff loaned her this sum, taking her note for the same and as security she executed a third mortgage covering the Hubbard Building property and the farm. Each of the principal notes was so drawn as to bear interest after maturity at the rate of 8 per cent per annum. The loan secured by the first mortgage was to bear interest from date until the maturity of the principal note at the rate of 7 per cent per annum as evidenced by a series of ten interest notes representing semi-annual installments of interest payable May 1st, and November 1st of each year from November 1,1912, to May 1,1917. The loan secured by the second mortgage was to bear interest from date until maturity at the rate of 7 per cent per annum, as evidenced by a series of eleven interest notes representing semi-annual installments of interest payable May 1st and November 1st of each year from November 1,1912, to November 1,1917. The loan secured by the third mortgage was to bear interest from date until maturity at the rate of 8 per cent per annum as evidenced by a series of nine interest notes representing semi-annual installments of interest payable May 1st and November 1st of each year from November 1,1913, to November 1, 1917. Among other covenants contained in plaintiff’s mortgages was one that the mortgagor would keep the buildings upon the mortgaged premises insured against loss or damage by fire in the sum of $50,000, and it was provided that if the mortgagor should fail to procure such insurance or fail to pay the premiums therefor, the mortgagee might procure such insurance and at its option pay the premiums therefor, and any amount so paid with interest at 10 per cent per annum should be added to and become a part of the debt secured by said mortgages. The mortgagor failed to keep up her insurance as agreed and, in order to protect its lien the plaintiff on May 15, 1915, advanced and paid insurance premiums to the amount of $927, no part of which was ever paid by the mortgagor.</p> <p>The mortgagor wholly failed to comply with the conditions of said mortgages. She defaulted in the payment of taxes for the year 1914; in the payment of interest on all of said loans; and in the payment of installment principal notes secured by the second mortgage. By reason of these defaults on August 18,1915, plaintiff commenced this suit in the Circuit Court for Marion County for the foreclosure of all of said mortgages. At that time, in addition to the arrears of $927 in insurance premiums, the mortgagor was in default to the amount of $1,050, interest on the first mortgage; $2,100, interest on the second mortgage; $8,000, principal on the second mortgage; and $800, interest on the third mortgage; besides a large amount of accrued interest on the delinquencies. In each of plaintiff’s mortgages the mortgagor expressly agreed that in case of foreclosure she would pay such a sum as the court might adjudge reasonable as attorney’s fees to be allowed the plaintiff in such suit. In the complaint it was alleged that $2,000 was a reasonable sum to be allowed as attorney’s fees for the foreclosure of the first mortgage; $2,000 for the second mortgage; and $1,000 for the third mortgage. Plaintiff asked for $927 for insurance premiums paid by it. On August 30, 1915, defendant, Fannie E. Hubbard, filed an answer admitting every allegation of plaintiff’s complaint, except certain portions not material to this appeal, and except as to the reasonableness of the attorney’s fees, admitting that $500 would be a reasonable fee for each of said mortgages. On April 20, 1916, she filed an amended answer expressly admitting all the other allegations of the complaint. She withdrew her admission as to the $927, insurance item, and denied that plaintiff had been compelled to advance more than $630 for such insurance premiums; and so amended her answer as to admit $250 a reasonable fee for foreclosing each of the three mortgages, or a total of $750. After considerable delay, on December 21, 1916, a decree was entered in favor of the plaintiff and against the defendants.</p> <p>Plaintiff was given judgment against defendant, Fannie E. Hubbard, for all amounts prayed for upon the several notes and secured by the respective mortgages. But upon the item of insurance premiums plaintiff was only allowed judgment for $630, and an aggregate sum of $750 as attorney’s fees. By the terms of the decree it was further provided that no execution should be issued to enforce the same before November 1,1917. From the provisions of the decree relating to the items of insurance and attorney’s fees and the inhibition concerning the issuance of execution, the plaintiff appeals. None of the defendants appealed from the decree in favor of plaintiff.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Burnett. The plaintiff alleges and the defendant admits that the latter is a corporation existing under the laws of this state, and that it was the owner of certain unimproved and unoccupied platted lots in the City of Portland, in front of which at the time mentioned in the complaint there was constructed and maintained a sidewalk as part of the adjacent street.

From Multnomah: Henry E. McGinn, Judge. Suit by Nancy A. Hills against Floyd J. Campbell to rescind a contract. From a decree dismissing tbe complaint and granting defendant the affirmative relief prayed for in his answer, plaintiff appealed. Statement by Mr. Justice Benson. This is a suit to rescind a contract involving the alleged purchase of the furniture in an apartment house, and a lease of the building.

From Tillamook: George R. Bagley, Judge. Statement by Mr. Justice Moore.