Volume 88 — Oregon Reports

<p>Public Lands — Cancellation of Deeds — Pleading.</p> <p>1. - In a suit to cancel deeds to school lands for which the grantees or their successors had executed deeds to the United States as a basis for lieu land selections, an allegation that the United States had and still did refuse to accept the deeds of certain of the defendants imported that there had been no delivery of the deeds, and, though it appeared that the deeds had been recorded, demurrers on the ground that the United States was a necessary party defendant were properly overruled, as a grantee under a deed acquires no rights in the absence of a delivery.</p> <p>Woods and Forests — Forest Reservations — Indemnity and Lieu Lands.</p> <p>2. Under Act Cong. June 4, 1897, e. 2, 30 Stat. 36, providing that in cases in which a tract of land covered by an unperfected tona fide claim or by a patent is included within the limits of a public forest reservation the settler or owner may relinquish the tract to the government and select in lieu thereof a tract of vacant land open to settlement, title to the base lands passes to the United States on the acceptance of the deed and the approval of the selection by the General Land Oifice, and, though deeds have been executed and filed, title does not pass until the transfer is accepted by that office.</p> <p>Courts — Federal Decisions as Authorities in State Courts.</p> <p>3. The construction of a federal statute is for the federal courts, and the state court must follow the rule which they announce.</p> <p>[As to when a decision of the United States Supreme Court is not binding on a state eourt, see note in Ann. Cas. 1913E, 281.]</p> <p>Public Lands — Cancellation of Deeds — Necessary Parties.</p> <p>4. Where school lands within a national forest reserve were purchased from the state in the name of dummy applicants, who immediately assigned their contracts to the party for whose benefit the applications were made in violation of the statute contemplating that the purchase shall be for the benefit of the applicant, and after the execution of deeds the grantees or. their successors executed deeds to the United States as a basis for lieu land selections, and such deeds were accepted by the proper officers of the United States, the deeds from the state could not be canceled because of the fraud inducing their execution without the presence of the United States as a party, though the United States had co-operated with the state in marshaling the evidence of the fraud and had instituted adverse proceedings against the corresponding selections on the public domain.</p> <p>Public Lands — Cancellation of Deeds — Necessary Parties.</p> <p>5. That the United States cannot be sued without its consent would not authorize the court to pass a decree canceling the deeds which it could not enforce.</p> <p>Parties — Defect of Parties — Parties Entitled to Object.</p> <p>6. “Where the grantors of the United States had conveyed the selected lands and had executed to the purchasers powers of attorney authorizing the selection in the names of the grantors of lieu lands and the sale of the selected lands, and the powers of attorney had been exercised and land selected and conveyed to parties who were in possession, such parties, in protection of their titles to the selected lands, were entitled to claim that the United States was the owner of the base lands, and as a corollary to that claim to urge that the controversy could not be determined in the absence of the United States as a party.</p> <p>Woods and Forests — Forest Reservations — Indemnity and Lieu Lands.</p> <p>7. Where parties relinquishing lands within a forest reservation to the United States as a basis in lieu land selections sold their selections and executed powers of attorney authorizing the purchasers to select lieu lands in their names and authorizing the sale of the selected lands, such powers of attorney were powers with an interest and were irrevocable during the lifetime of the grantors.</p> <p>Public Lands — Cancellation of Deeds — Necessary Parties.</p> <p>8. Where deeds executed by grantees of school lands or their successors to the United States and filed as a basis for lieu land selections had never been accepted by the United States and it had never been determined by the General Land Office that the grantors had title or that the deeds were effectual to pass title, the United States had no interest in the lands and was not a necessary party to a suit by the state to cancel the deeds from the state for fraud.</p> <p>Public Lands — Cancellation of Deeds — Sufficiency of Evidence.</p> <p>9. In a suit to cancel deeds to school lands, evidence held sufficient to establish a conspiracy to obtain sueh lands in fraud of the publie policy of the state by procuring a large number of applications from dummy applicants, who immediately assigned their contracts, and to show that a defendant who thereby acquired deeds to thousands of aeres of land was a party to the conspiracy and the author of it.</p> <p>Fraud — Evidence,</p> <p>10. Fraud is ordinarily established by circumstantial evidence.</p> <p>Conspiracy — Circumstantial Evidence.</p> <p>11. A' conspiracy may be inferred from circumstances.</p> <p>Public Lands — Cancellation of Deeds — Grounds.</p> <p>12. Where, by mean's of applications in the names of dummy applicants and by false affidavits, thousands of acres of school lands were acquired from the state by nonresidents, contrary to the policy to sell only to residents who purchase for their own benefit and in quantities not exceeding 320 acres to each person, there was such fraud as justified the cancellation of the deeds, though the state received the price at which the lands were held for sale, especially as the market value of the lands subsequently increased and the state land board raised the selling priee; it being probable that, if sales had been made only to qualified purchasers in amounts not exceeding 320 acres to each purchaser, the bulk of the lands would have remained available for sale at the higher prices.</p> <p>Public Lands — Cancellation of Deeds — Bona Fide Purchasers.</p> <p>13. In a suit to cancel deeds to school lands within a forest reserve which had been subsequently offered to the United States as a basis for lieu land selections, but which had not been accepted by the United States, it was immaterial whether purchasers of the land selected in lieu thereof were bona fide purchasers, as their title to the selected lands was dependent upon the title of the United States to the base lands and the United States had never acquired title to the base lands.</p> <p>Public Lands — Cancellation of Deeds — Evidence.</p> <p>14. In a suit to cancel deeds to school lands purchased from the state on application of dummy applicants, evidence held to show that a party who financed the purchases and took deeds to secure money advanced by him was a party to the conspiracy and was not an innocent purchaser.</p> <p>Public Lands — Proceedings in Land Office — Jurisdiction of Courts.</p> <p>15. Where deeds to school lands within a national forest reserve were obtained by fraud and the grantees or their successors executed deeds to the United States and filed them as the basis of lieu land selections, but the deeds had not been accepted by the land office, the pendency in such office of proceedings on charges against the validity of the selections of lieu lands did not prevent an action to cancel the deeds from the state, as, the United States having acquired no interest in the lands, the General Land Office had no control over themj its jurisdiction being confined to the public domain.</p> <p>States — Actions by States — Laches.</p> <p>16. The doctrine of laches is applicable to the state.</p> <p>Public Lands — Cancellation of Deeds — Laches.</p> <p>17. While it was a suspicious circumstance that 146 applications should be made within a few months to purchase state lands in a forest reserve and that deeds should issue shortly afterward to a handful of nonresidents transferring many thousands of acres of' such lauds, where these matters apparently passed unnoticed by the state officials, laches was not imputable to the state in its failure to act for the cancellation of the deeds for fraud in the inception of the fraud, as notice must be more than would excite the suspicion of a cautious and wary person.</p> <p>Public Lands — Cancellation of Deeds — Laches.</p> <p>18. A delay of 15 years from 1898 to 1913 in bringing suit to set aside deeds to school lands based on fraudulent applications by dummy applicants, held not such laches as barred the suit, where the fraud was not discovered until 1905 and the facts were not fully known until 1908, at which time the position of innocent defendants had become fixed, and the condition and value of the lands did not change appreciably and where the marshaling of the facts involved a vast amount of investigation and painstaking labor and the charges reflected on the integrity of- a number of citizens of the state necessitating careful investigation before making such charges and taking action, especially where in spite of the delay the evidence of the fraud was clear and fraud could- not have been disproved.</p> <p>Public Lands — Sale of School Lands — Fraud—Ratification.</p> <p>19. It should not be assumed that the legislature has ratified sales of sehool lands secured by gross fraud unless the language of the statute leads unmistakably to that conclusion.</p> <p>.Public Lands — Sale of School Lands — Fraud—Ratification.</p> <p>20. Sess. Laws 1899, p. 164, § 27, directed the state land board, which had been authorized to lend the sehool funds on farm mortgages, to foreclose all mortgages which were not adequate security and bid in the lands at its true cash value, but through mistake did not empower the board to sell land so purchased. Laws 1901, p. 304, authorized the board to bid in lands sold under foreclosure of mortgage given to secure a loan from the school fund, and provided that such lands should be held for sale and sold as opportunity might offer on the best terms obtainable, and that all sales of land theretofore made by the board were thereby ratified and confirmed, and whenever the full purchase price should have been paid title in fee simple should vest in the purchasers and their successors and assigns. Held, that this was passed to correct the error in the act of 1899 and related to purchases made by the state on the foreclosure of school fund mortgages and authorized sales thereof and confirmed sales theretofore made, and had no reference to sales of the state’s grant lands and was not intended to confirm fraudulent purchases of such grant lands.</p> <p>Statutes — Construction—Intention.</p> <p>21. A statute is to be interpreted in accordance with the legislative intent.</p> <p>Public Lands — Cancellation of Deeds — Accounting.</p> <p>.22. The state, suing to caneel deeds to school lands relinquished to the United States as the basis of lieu land selections for fraud in procuring such deeds, cannot Teeover the lands and also have an accounting from the grantees for money secured by them through the attempted exchange of the lands.</p> <p>ON REHEARING.</p> <p>Woods and Forests — Forest Reservations — Indemnity and Lieu Lands.</p> <p>33. Aet. Gong. March 3, 1905, e. 1495, 33 Stat. 1264, repealing Act Cong. June 4, 1897, e. 2, 30 Stat. 36, providing in cases where a tract of land covered by an imperfect bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner may relinquish' it to the government and select in lieu thereof a tract of vacant public land open to settlement, but providing that the selections heretofore made in lieu of lands relinquished may be perfected as though the act had not been passed, does not, whore title to base land relinquished in lieu of other lands to be selected from the public domain was acquired from the state by fraud vest such title in the United States, so as to preclude an attack on the title to base land by the state, where the United States had not accepted the conveyance of the base lands.</p> <p>Public Lands — Selection—Effect.</p> <p>24. Under the regulations of the Interior Department, a selector of unsurveyed publie lands acquires an inchoate right thereto which on survey and compliance with the rules entitles him to patent; hence title to base lands included in a forest reserve and relinquished in lieu of other lands is not subject to attack on the theory that there could be no relinquishment because the lieu lands were unsurveyed.</p> <p>Woods and Forests — National Forests — Selection of Lieu Lands.</p> <p>25. As the administration of the forest reserve act is vested in the Land Department, the question whether a relinquishment of lands incorporated in a forest reserve, the owner selecting other lands in lieu thereof, is sufficiently in compliance with the rules to be accepted is solely for the Land Department.</p>

From Linn; William Galloway, Judge. In Bano. This is a suit brought to cancel deeds executed by the State of Oregon to 920 acres of state lands in Linn County. By stipulation of the parties 320 acres were eliminated from the suit. As to the remainder of the property the issues are substantially the same as in the suit brought in Crook County, which we have just decided.

<p>Public Lands — Cancellation of State Deeds — United States as Party Defendant.</p> <p>1. Where the General Land Office has accepted deeds running to the United States for the east half of a section involved in suit by the State of Oregon to set aside and cancel state deeds and has approved selection of lieu lands based on the relinquishment of the lands described, the United States is an indispensable party defendant to so much of the controversy as relates to sueh lands.</p> <p>Public Lands — Cancellation of Deed — Purchase of Lands for Benefit of Another — Sufficiency of Evidence.</p> <p>2. In the state’s suit to set aside and cancel deeds, evidence held, to show that applications to purchase certain lands involved were not made for the benefit of the applicants, but were for the benefit of another.</p> <p>Criminal Law — Declaration of Conspirator — Admissibility Against Co-conspirators.</p> <p>3. The declaration of a conspirator made long subsequent to the acts pursuant to the conspiracy is inadmissible in evidence against the declarant’s co-conspirators.</p> <p>Fraud — Conjectural Proof.</p> <p>4. Proof of fraud must not rest on conjecture.</p> <p>Public Lands — Cancellation of Deeds — Payment to Innocent Purchaser.</p> <p>5. In the state’s suit to set aside and cancel state deeds to lands on the ground that the applications to purchase were fraudulently made for the benefit of others than applicants, the trial couTt improperly made the state’s relief conditional on the payment to innocent defendants of $1.25 an acre for the land recovered.</p>

From Lane: George F. Skipworth, Judge. In Banc. This is a suit brought by the State of Oregon to cancel deeds executed by it to 1,440 acres of land in Lane County which were formerly a part of the grant made to the state for school purposes. The complaint on which the case was tried is substantially identical with that filed in a similar cause in the Circuit Court for Crook County, which we have just decided. The record fails to show any demurrer to the complaint.

From Clackamas: James U. Campbell, Judge. In Banc. This is a suit brought to cancel state deeds to 3,240 acres of land situate in the Cascade National Forest Reserve and in Clackamas County. The complaint on which the case was tried is substantially identical with that filed in Crook County in a similar cause this day. decided.

From Jackson: Frank M. Calkins, Judge. In Bane. This is a suit brought by the State of Oregon to recover 2,360 acres of land in Jackson County. The complaint on which the case was tried is substantially identical with that filed in Crook County and which is described in the opinion in the Crook County case this day handed down.

<p>Pleading — Demurrer—Discretion of Court.</p> <p>1. Permission to amend after a demurrer is sustained should ordinarily be granted, but the matter rests in the discretion of the court, and denial of permission to amend after demurrer is sustained to affirmative matter in defendant’s fourth amended answer cannot be treated as an abuse of discretion.</p> <p>Pleading — Issues—Evidence Admissible.</p> <p>2. Evidence in support of affirmative allegations of the answer to whieh demurrer was sustained, and which were out of the case, was properly excluded.</p> <p>Payment — Recovery—V olunteers.</p> <p>3. Where, after defendant purchased a bakery, giving a chattel mortgage to secure the purchase-money notes, and the seller induced her to pay for personal property on the premises on the ground that it was not included in the sale, defendant cannot, in a suit to foreclose the chattel mortgage, offset the amount of the payment which was not made under duress, on the ground that the property so paid for was included in the sale, for defendant was as to such payment only a volunteer.</p> <p>[As to recovery of voluntary payments, see note in 94 Am. St. Rep. 408.)</p> <p>Chattel Mortgages — Belief—Laches.</p> <p>4. Whore such payment was made in July, 1913, and suit on the chattel mortgage was begun in October, 1914, but the payment was not set up by defendant until the filing of her fourth amended answer, on March 30, 1916, the lapse of time precluded recovery of the payment: no equity other than that arising on account of the payment appearing.</p> <p>Chattel Mortgages — Pleading—Construction.</p> <p>5. While a pleading is to be construed most strongly' against the pleader, the language is to be interpreted fairly and in accordance with the intent of the pleader if that intent is to be gathered from a reasonable construction of the language used; hence in a suit to foreclose a chattel mortgage given to secure notes executed for the purchase of a bakery, an answer, alleging that plaintiff, seller, misrepresented to defendant, purchaser, the profitableness of the bakery business, was a sufficient averment that the sale was induced by material misrepresentations.</p> <p>Setoff and Counterclaim — Suit in Equity — Legal Demand.</p> <p>6. Where plaintiff sold defendant a bakery, misrepresenting the profits of the business, defendant’s remedy on account of the misrepresentations is at law, and hence in a suit to foreclose a chattel mortgage on the property given to secure purchase-money notes, defendant cannot as a counterclaim set up the misrepresentations, for § 401, L. O. L., relating to counterclaims in equity, declares that the counterclaim shall be one on which a suit in equity might be maintained by defendant against plaintiff.</p> <p>Pleading — Construction—Sufficiency.</p> <p>7. The sufficiency of a pleading is to be tested by its allegations, not by the name which the pleader has given it, and an answer in a suit to foreclose a chattel mortgage, which set up a valid defense by way of recoupment, is not subject to demurrer, though it was denominated a counterclaim.</p> <p>Setoff and Counterclaim — Eecoupment—Pleading.</p> <p>8. In a suit to foreclose a chattel mortgage on a bakery, given to secure purchase-money notes,- defendant, the purchaser, and mortgagor, may by way of recoupment plead the seller’s misrepresentations by means of which the sale was induced.</p> <p>Pleading — Defenses—Demurrer.</p> <p>9. In a suit to foreclose a chattel mortgage given to secure purchase-money notes, defendant’s answer, setting up by way of recoupment damages for fraudulent misrepresentations made' in effecting the sale, is not subject to demurrer, although the damages alleged to have resulted from the fraud were less than the amount of plaintiff’s demand, for such answer was a good defense pro tanto.</p> <p>Chattel Mortgages — Foreclosure—Defenses.</p> <p>10. In a suit to foreclose a chattel mortgage on a bakery given to secure notes for its purchase, defendant’s answer setting up that the plaintiff agreed not to conduct a bakery in that section for at least a year, but that shortly after the sale he notified customers he ■would soon be engaged in the bakery business, and shortly thereafter did engage in such business to defendant’s damage, is defective, not showing that plaintiff opened the second establishment within the year period.</p>

From Linn: William Galloway, Judge. Department 2. This is a suit by Nettie E. Gillard against William H. Gillard, M. F. Hays, James Ger-wick and Charlotte Gerwick to partition real property.

From Wasco: William L. Bradshaw, Judge. Department 1. A synopsis of the facts narrated in the complaint is about as follows: In December 1911, plaintiff entered into contracts with defendants Settlemeier and Riggs, as partners, for the purchase of two pieces of land in what is called “Fairbanks Orchard Tracts, ’ ’ upon which she subsequently made payments to the extent of $3,000.

From Multnomah: George N. Davis, Judge. Department 2. This is an action by Ashley & Rumelin against F. A. Lance, Charles Weeks, Herman Mass-man and George W. Rahskoff, to recover money.

<p>Mortgages — Foreclosure—Default—Covenant—Prior Encumbrance.</p> <p>1. Where a mortgage provided that the mortgagors should reduce a prior encumbrance, and that failure to perform any agreement should authorize immediate foreclosure, the act of one of the mortgagors in procuring a receipt from the administrator of the estate which owned the prior encumbrance, but paying no money therefor, and without exhibiting the receipt to either the mortgagee or his assignee, was not such performance as to prevent foreclosure.</p> <p>Mortgages — Foreclosure—Default—Covenant—Prior Encumbrance.</p> <p>a. Where mortgagors covenanted with their mortgagee to pay principal and interest on a prior mortgage, in favor of the state land board, and to furnish the mortgagee evidence thereof, and agreed that any breach should give the right of immediate foreclosure, the indulgence of the state land board in not foreclosing does not avoid the effeet of their breach of covenant to pay such mortgage.</p>

From Multnomah.: Robert G-. Morrow, Judge. In Banc. This is a suit brought to enjoin defendant from blocking a strip of land nine feet wide and approximately six hundred and sixty feet long, which plaintiffs claim to be a roadway.

From Multnomah.: John P. Kavanaugh, Judge. In Banc. The plaintiff, Ida Carpenter, acting in behalf of her husband, E. H. Carpenter, sued out a writ of habeas corpus in the Circuit Court for Multnomah County against the sheriff of that county and one Frank Lord, the latter of whom avers that he is the agent of the State of California commissioned to return Carpenter to that state on extradition process.

<p>Highways — Establishment—Notice—Beginning and Terminal Points.</p> <p>1. Notice of intention to present petition for establishment of a county road states definitely the beginning and terminal points as required by Section 6279, L O. L., it giving a definite government comer as the terminus, and it being easy by retracing the description, given by courses and distances, to arrive at the starting point.</p> <p>[As to meaning of word “near” with respect to location of highway, see note in Ann. Cas. 1913D, 120.)</p> <p>Evidence — Presumption—Acts of Court.</p> <p>2. While the County Court, in acting on a petition for establishment of a county road, is one of special and limited jurisdiction, yet when that jurisdiction is obtained the same applies to its acts as to a court of general and superior jurisdiction.</p> <p>Highways — Establishment—County Court — Jurisdiction.</p> <p>3. The County Court obtains jurisdiction in a proceeding to establish a county road, on the filing of the petition and proof of posting of the notices required by law.</p> <p>Eminent Domain — Establishment of County Road — Damages—Presenting Claims.</p> <p>4. After the County Court obtains jurisdiction in a proceeding to establish a county road, persons claiming to be land owners along the route must seasonably present their claims for damages, stating the facts as to their ownership.</p> <p>Eminent Domain — Establishment of County Road — Claims to Lands and Damages — Road Viewers.</p> <p>5. It is no part of the road viewers’ duties in proceeding to establish a county road to settle or even investigate coxxflicting claims to the lands through which the road passes, hut they in a general way assess the damages to the tracts, and the owners, being constructively in court by reason of the posting of the notices of the application, should file their claim for damages in the County Court, or by appeal to the Circuit Court litigate the question of ownership, as well as of damages.</p> <p>Highways — County Road. — Establishment—Writ of Review.</p> <p>6. Persons have no right to a writ of review of proceeding to establish a' county road, on the ground that, not being parties to the record of the road proceeding, they had no right of appeal; but having legal notice of such proceeding, they were required to make themselves parties to the record.</p> <p>Highways — County Road — Proceeding in Rem — Notice.</p> <p>7. A proceeding to lay out a county road is in its essence a proceeding vn, rem, except that the application may be defeated by a remonstrance pursuant to Section 6288, L. O. L., so lhat the notice is process of the whole world.</p> <p>Highways — County Road — Proceeding to Establish — Necessity.</p> <p>8. The. County Court is the final judge of the necessity or utility of a proposed county road, and of the right of the county to condemn and appropriate lands therefor.</p> <p>Highways — Proceeding to Establish — Minor Owners.</p> <p>9. That owners of land through which a county road was established on sufficient notice were minors, and did not make themselves parties and present their claims for damages, did not make the proceeding void.</p> <p>Pleading — Legal Conclusion.</p> <p>10. Allegation of petition for writ of review of proceedings to establish a county road, that the board of county road viewers did net mark the trees on the proposed road “in accordance with the statute,” is a mere legal conclusion.</p> <p>Highways — County Road — Establishment—Marking Trees.</p> <p>11. Compliance with the requirement of the statute that the board of county road viewers mark the trees on the proposed road is not jurisdictional in a proceeding to establish a county road.</p> <p>Pleading — Legal Conclusions.</p> <p>12. Allegation of petition for writ of review of proceedings to establish a county road, that the County Court met on a certain day, without notice to plaintiffs, and out of the regular order provided by law, and illegally proceeded to order said road laid out, opened, and established, to the injury of plaintiffs, is with the exception of the statement that the court met on such day, without notice to plaintiffs, nothing but a series of legal conclusions.</p> <p>Highways — County Road — Proceeding to Establish — Time.</p> <p>13. Proceedings to establish a county road were not invalidated by the County Court, at the same term, ordering the road viewed, receiving the viewers’ report, and making the order of establishment; no statute being violated.</p>

From Multnomah: William N. Gatens, Judge. Department 1. By an agreement attached to its complaint and made part thereof the plaintiff, as contractor, covenanted with the City of Portland “that the contractor, for the consideration hereinafter named, does hereby agree to furnish all material and perform all of the labor necessary or required for the construction and full completion of the macadam pavement and all necessary trenches for storm water drains on that portion of…

From Clackamas: James U. Campbell, Judge. Department 2. This is an action brought on a teacher’s contract of employment. On May 24, 1915, the individual defendants were the directors of School District No. 62 in Clackamas County. On that day they entered into a contract of employment with plaintiff as instructor in the high school.

<p>Trademarks and Trade Names — Unfair Competition.</p> <p>1. One conducting a barber sehool may, as for unfair competition, enjoin another from engaging in the same business, in the same locality, under the same name.</p> <p>[As to when equity will interfere to restrain infringement of trademarks and trade names, see note in 25 Am. St. Rep. 191]</p> <p>Trademarks and Trade Names — Unfair Competition — Partners Using Corporate Name.</p> <p>2; That partners are doing business under a corporate name does not prevent them having a corporation enjoined for unfair competítion from using it; partners being permitted to use a corporate name if, as plaintiffs had done, they register it and their true names.</p> <p>Trademarks and Trade Names — Unfair Competition — Synonymous Names.</p> <p>3. The names “Moler Barber College” and “Mohler Barber School” are practically synonymous, as regards right to injunction for unfair competition.</p>

From Coos: John S. Coke, Judge. Department 1. The defendants appealed from a decree foreclosing a purchase-money mortgage. In November, 1913, the plaintiff Andrew J. Hamlin sold a 257 acre farm together with certain personal property to the defendants Jeff D. Tharp and his wife Leona Tharp for $9,500.

Prom Multnomah: Calvin TJ. Gantenbein, Judge. Department 2. George Shaw was arraigned before the municipal judge of the City of Portland, sitting as an ex-officio justice of the peaee, upon a complaint charging him with the crime of vagrancy as defined in Chapter 95, Laws 1911.

From Multnomah: Calvin XL Gantenbein, Judge. Department 1. The plaintiff, Manley, brought this suit to foreclose a mortgage executed by Milton W. Smith, Alice Smith, his wife, and Thad Sweek, to secure a note signed by the Smiths and Alex Sweek.

<p>From Columbia: James A. Eakin, Judge.</p> <p>Department 2. Tbis is a personal injury case. Th.3 defendants appeal from a judgment rendered upon a verdict. Tbe gist of the complaint as to the negligence is as follows: After the averments of the corporate and business character of the defendant company and that C. E. Chamberlain was conductor and E. 0. Burgess brakeman bn the train of the railroad company, the pleading states that on April 9, 1915, plaintiff, John W. Patrick, a man 74 years of age, purchased a ticket and was a passenger on defendant company’s train from Eainier, Oregon, to Goble, Oregon, where the train arrived at 8:37 p. m., about fifteen minutes late; that in attempting to make up time the defendants negligently failed to allow the train to stop at Goble, plaintiff’s destination, a sufficient length of time to permit him safely to alight therefrom, and carelessly started the train while he was attempting to leave it; that plaintiff was enfeebled in powers of locomotion, infirm and in a weakened condition which was obvious and plainly visible from his appearance and which was well known to defendants, Chamberlain and Burgess, or might have been known to them by the exercise of ordinary care and observation; that defendants carelessly and negligently failed and neglected to provide any platform, step, contrivance, means, or assistance to enable plaintiff safely to alight from the train; that when plaintiff was upon the platform of the car which was rendered unsafe and dangerous by the premature starting of the train defendant Burgess was on the platform of the adjoining car and was in a position to see the condition and danger of the position of plaintiff and with ordinary care and caution could have prevented the injury, hut that he neglected to stop the train or do anything to prevent the injury; that when plaintiff in attempting to leave the train had reached the steps of the coach upon which he was riding, on account of the negligent starting and running of the train without giving him sufficient time to alight therefrom (here specifying the acts of negligence as above) he was forcibly and violently thrown from the train by its motion and jarring and was thereby seriously injured to his damage.</p> <p>By its answer the defendant company admits its incorporation; that plaintiff was a passenger on its train on the date alleged, and that while alighting therefrom at Goble, he fell and sustained some injuries. It denies the other allegations of the complaint and further alleges that plaintiff’s own negligence caused or contributed to cause the accident.</p> <p>The separate answers of defendants, Chamberlain and Burgess, deny the main allegations of the complaint and also allege contributory negligence.</p> <p>The replies controverted the new matter of the answers.</p>

<p>Master and Servant — Employers’ Liability Act — Pleading—Election.</p> <p>1. Since Laws of 1913, page 188, creating Industrial Accident Commission, does not raise any presumption whether the employer is subject to the act, an injured servant need not allege that the master had given notice that he would not come under the act; the fact of absence of such notice being a matter of affirmative defense.</p> <p>[As to right to, and effect of election with respect to, acceptance of provisions of Workmen’s Compensation Act, see note in Ann. Cas. 1915C, 308'.]</p> <p>Witnesses — Injuries to Servant — Evidence—Admissibility.</p> <p>2. In servant’s action for injuries when lumber on wagon having no brake, crowded horses and caused runaway, in the absence of evidence that a chain, rope or other deterrent was furnished by the master, question on cross-examination why the servant did not- lock the wheels was properly excluded, since he was not required to furnish such appliances.</p> <p>Master and Servant — Injuries to Servant — Instructions—Contributory Negligence.</p> <p>3. In view of Laws of 1911, page 16, Section 1, requiring contractors on any wbrk involving a risk or danger to the employee to use every practicable device, care and precaution, and Section 6, providing that the contributory negligence of the injured servant shall not be a defense, though it may be considered in fixing damages, and General Laws of 1913, page 192, Sections 13 and 14, defining engineering works as hazardous occupations and to include the repair of highways, a servant injured by runaway of team while hauling lumber for repairing bridge, which was caused by failure to supply brake for wagon, so that in going down hill the lumber crowded the horses and frightened them, the servant’s alleged negligence could be considered only in mitigation of damages.</p> <p>Trial — Injuries to Servant — Instructions—Contributory Negligence.</p> <p>4. In servant’s action for injuries in runaway when lumber on wagon crowded horses, frightening them, evidence held to warrant refusal of instruction that, if the load became loosened, plaintiff could not recover, since it showed that the load did not become loosened until the horses were frightened by being crowded by the lumber because the tongue of the wagon was too short.</p> <p>Master and Servant — Injuries to Servant — Instructions—Contributory Negligence.</p> <p>5. In servant’s action for injuries based on Employers’ Liability Act, requested instruction to find for defendant if the servant was eontributorily negligent was properly refused in view of Laws of 1911, page 18, Section 6, permitting contributory negligence to be considered only in mitigation of damages.</p>

<p>Appeal and Error — Perfection of - Record — Briefs—Failure to File— Excuses.</p> <p>1. That indictments have been returned against plaintiff and her witness, for subornation of perjury and perjury, respectively, and that proceedings were had to set aside the judgment on that ground, is sufficient excuse for failure of defendant’s counsel to file briefs on appeal within the time allowed.</p> <p>Courts — Jurisdiction—Supreme Court.</p> <p>2. The original jurisdiction of the Supreme Court is confined to mandamus, quo warranto and habeas corpus under Article VII, Section 2, of the Constitution, and its further jurisdiction is confined by Section 548, L. O. L., to matters of appeal; hence an original motion to set aside a judgment substantially identical with one denied by the Circuit Court but not appealed from, cannot be entertained.</p> <p>Judgment — Equitable Relief — “Fraud Collateral to Issue.”</p> <p>3. The production of perjured testimony does not constitute fraud collateral to the issue causing wrongful result warranting the setting aside of a judgment by another and original suit.</p> <p>Appeal and Error — Review—Discretion—Setting Aside Judgment.</p> <p>4. While under Section 103, L. O. I/., the court in its discretion may relieve a party from a judgment taken against him through mistake, inadvertence, surprise or excusable neglect, the action of the trial court will not be reviewed except for plain abuse.</p> <p>New Trial — Motion for — Time of Making.</p> <p>5. Where a motion is substantially one for new trial and is filed long after the time provided therefor by statute had elapsed, it is unavailing.</p> <p>Appeal and Error — Denial of New Trial.</p> <p>6. No appeal lies from the denial of a motion for new trial.</p> <p>Judgment — Perjury.</p> <p>7. The perjury of a witness is not ground for setting aside a judgment on appeal or otherwise.</p> <p>Damages — Injury Causing Miscarriage.</p> <p>8. In an action against a carrier for an accident resulting in a miscarriage, the effect on the plaintiff, the mother, alone is to be considered, and no recompense will be allowed for loss of anticipated off* spring.</p> <p>Appeal and Error — Review—Change of Theory — Evidence.</p> <p>9. Plaintiff, having urged the testimony of a witness for a specifie purpose before the trial court cannot disclaim that theory on appeal, and urge that the evidence was proper for another purpose.</p> <p>Trial — Offer of Evidence.</p> <p>10. In an action by a passenger against a carrier for injuries resulting in a miscarriage, the rejection of testimony that plaintiff and her husband stated prior to the accident that they contemplated an operation on plaintiff without offer to phone, performing of operation and connection with injury was not error.</p>

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Mc-Camant. This is an action brought by Jessie McLemore, the widow of Homer McLemore, to recover the sum of $2,700 claimed to be due her as a life insurance benefit under a plan promulgated by the defendant January 1,1913.

From Multnomah: Harry H. Belt, Judge. Department 1. The defendant Daniel Kern has appealed from a judgment obtained against him by the plaintiff Clarence W. West for injuries resulting from a collison with an automobile in the City of Portland. Lawrence R. Kern is a nephew of Daniel Kern. Fidelo- Lopez worked as gardener and “all-around man around the house” of Daniel Kern who resided on the east side of the Willamette River. East Burnside Street extends east and west.

From Clatsop: James A. Eakin, Judge. In Banc. This is an action to recover money.

From Lane: Frank M. Calkins, Judge. Department 1. The substance of the complaint in this case is that, on May 11,1915, plaintiffs were the owners of certain real property in the City of Eugene and on that day entered into an agreement with defendant A. A. Aaby to exchange the same for certain other lands; that plaintiffs ’ property was then encumbered with certain liens for street improvements which were to be assumed and paid by Aaby or his assigns; that on July 3, 1915,…

Prom Union: John W. Knowles, Judge. In Banc. This was a creditor’s suit brought to impress the lien of plaintiff’s judgment upon certain property of the defendants, and for other purposes which will more fully appear. The great length of the pleadings precludes the reproduction of them here, but briefly stated the situation is as follows: The plaintiff is a corporation doing a wholesale and retail drug business in Portland, Oregon.

From Polk: Harry H. Belt, Judge. Action by H. Taylor Hill against John McGrow to recover the amount due on a promissory note. Verdict for plaintiff and defendant appealed. Affirmed. Department 1.

From Coos: George F. Skipworth, Judge. Department 2. The defendant appeals from a judgment for $750 damages, based upon a jury verdict.

<p>Divorce — Decree Based on Contradictory Testimony.</p> <p>1. As trial judge who had witnesses before him was better able to appraise the value of the testimony than the court on appeal, decree in divorce suit will be affirmed, where court on appeal is of opinion that evidence sustains decree.</p>

From Clackamas: James U. Campbell, Judge. Department 1. Acting through his guardian ad litem, Lionel C. Palmer, a minor about sixteen years of age, sued the defendant for damages resulting from a serious injury .received by him on July 11, 1916, while attempting to board a moving train. The plaintiff was nonsuited and then appealed. The Willamette Valley Southern Bailway Company owns and operates an electric railway line between Oregon City and Mt. Angel.

• Original proceeding in Supreme Court. Department 1. The defendant Beveridge is county clerk of Multnomah County. The relator desires to become a candidate for the offiee of district judge in that county and presented to the county clerk his declaration of candidacy which the officer refused to file.

From Lane: George F. Skipworth, Judge. Department 2. Plaintiff commenced this suit to foreclose a real estate mortgage executed by the defendants Dixon. As alleged in the complaint, C. W. Young, was joined as a defendant for the reason that he was a junior mortgagee. The defendants Dixon made default.

From Multnomah: Bobert Gr. Morrow, Judge. The defendants, John Dinwoodie, N. A. Hoffard and David Clark, appeal from a judgment against them and defendant C. A. Parvin for the sum of $677.50 for labor performed and personal property sold and delivered to defendants by plaintiff. C. A. Parvin did not appeal. The cause was tried by the court without the intervention of a jury. Findings of fact and conclusions of law were made and the judgment was based thereon.

<p>Eminent Domain — Requisites and Entry of Judgment.</p> <p>1. Under Section 6866-, L. O. L., providing upon the payment into court of the damages assessed by the jury in proceedings for condemnation of land the court shall give judgment appropriating the lands to plaintiff, the plaintiff, after verdict, may elect whether it will pay for and take the property.</p> <p>Eminent Domain — Enforcement of Award and Judgment.</p> <p>2. Where, after verdict for plaintiff in proceedings for condemnation of land,'plaintiff took possession of premises, and made no offer to surrender possession, it elected to accept the benefits of the verdict, and a judgment entered on the verdict against plaintiff for the award was proper.</p> <p>Eminent Domain — Due Process of Law — Constitutional Provisions.</p> <p>3. Under Article X, Section 10, of the Constitution, providing that every man shall have remedy by due process of law for injury done him and his property, where, after verdiet for plaintiff in proceeding to condemn land, plaintiff has taken possession of such land, the defendant has the right to have judgment entered for amount of verdict^and execution allowed.</p> <p>Eminent Domain — Condemnation (Proceedings — Review.</p> <p>4. Under the provision of Article YII, Section 3, of the Constitution, that if the judgment appealed from is such as should have been rendered in the ease it should be affirmed, where the record upon appeal by plaintiff in a proceeding for the condemnation of land does not disclose any benefit to plaintiff by requiring defendants to submit to another trial, the case will be affirmed.</p>

From Marion: Percy E. Kelly, Judge. This is an action brought under the Federal Employers’ Liability Act by the plaintiff on behalf of herself as widow and her infant son, to recover damages for the killing of her husband, Oluf Olson Stool, while employed as a section-man for the defendant.

From Umatilla: Gilbert W. Phelps, Judge. In Banc. This is a proceeding initiated by the United States as a consumer of water of the Umatilla River to have the rights of the several water users upon that stream adjudicated under the provisions of the Water Code of 1909, codified in Section 6635, et seq., L. O. L. The stream in question takes its rise in the Blue Mountains in the eastern part of Umatilla County and augmented by several affluents in its course, flows northerly…

<p>Landlord and Tenant — Lease—Construction.</p> <p>1. Lease provisions that the lessee’s liability for a breach should be confined to forfeiting the lease, and that the lessor might re-enter without prejudicing his remedies for rental arrears, etc., held, when construed together, not to prevent the collection of unpaid rent.</p>

From Marion: Percy R. Kelly, Judge. Department 2. This is an action brought by Mary I. Mercer on a policy of fire insurance issued by the defendant April 7, 1915, covering some real and personal property in Marion County belonging to plaintiff. The property was destroyed by fire January 27, 1916. The policy was in favor of A. Gr. Mercer, who is alleged in the complaint to have been the agent of plaintiff and to have negotiated the insurance on plaintiff’s behalf.

<p>Wills — Contest—Incompetency and Undue Influence.</p> <p>1. In a proceeding to vacate an order admitting a will to probate on the ground that at the time of execution testatrix was mentally incompetent and unduly influenced, contestants have the burden to establish by a preponderance of the evidence that testatrix was mentally incompetent or that undue influence was exereised to bring about execution of the will.</p> <p>[As to undue influence affecting wills, see notes in 21 Am. St. Rep. 94; 31 Am. St. Rep. 670.]</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department 1.</p> <p>Plaintiff brings this action to recover compensation for personal injuries received while in the employ of the defendants. The complaint describes the nature of the employment, the fact that plaintiff in company with others was engaged in the construction of a “muck-stand,” and that owing to defendants’ negligence he was compelled to jump from the top of the muck-stand to the ground, a distance of eight or ten feet, to escape being crushed by a timber suspended from the boom of a derrick. The nature of the injuries received is described and, after appropriate and necessary allegations of the details, there is the usual prayer for judgment.</p> <p>The answer consists of general denials. A trial resulted in a verdict and judgment for plaintiff from which defendants appeal.</p>

From Multnomah: John P. Kavanatjgh, Judge. Department 1. The defendant is a railway common carrier of goods. The plaintiff alleges in substance that he purchased in Concordia, Kansas, 330 boxes of butter and 37 boxes of poultry and caused them to be shipped in good order by another railroad company connecting with the line of the defendant consigned to himself at Portland, Oregon.

<p>Appeal and Error — Presumptions.</p> <p>1. In the absence from the record of any of the evidence, it must be assumed that there was evidence to support the finding.</p> <p>Wills — Construction—Intent.</p> <p>2. In the construction of a will, the purpose is to discover the intention of the testator.</p> <p>Life Estates — Obligations to Pay Mortgage.</p> <p>3. Under will devising all of estate to the wife, providing that on her death one-half should go to her relatives and half to the relatives of the testator, the wife was a life tenant, and under no obligation to pay off the principal of a mortgage, even to prevent foreclosure sale.</p> <p>Life Estates — Mortgages—Payment by Life Tenant.</p> <p>4. When a life tenant pays an encumbrance with her money, she may call on the remaindermen for contribution, and has a lien on the property for the amount of the principal, but she must personally pay the interest, at least to the extent of the income or rental value of the property.</p> <p>Life Estates — Mortgages—Payment by Life Tenant.</p> <p>5. Where a life tenant paid the principal of a mortgage out of her individual estate, the remaindermen should not be required to pay interest on the mortgage, since the payment of the interest tended to reduce their estate.</p> <p>[As to duty of life tenant to remaindermen and reversioners, see note in 137 Am. St. Rep. 651.]</p>

<p>Master and Servant — Workmen’s Compensation — Appeal—Motion to Dismiss — Finality of Judgment.</p> <p>1. Notice of appeal reading, “Please take notice that the defendant above named hereby appeals from the whole of the certain judgment made and rendered in this action by said court on” a date named, “a copy of which judgment is hereto annexed,” shows an appealable judgment, and claimant’s motion to dismiss because the appeal is from an order of the Circuit Court dismissing an appeal is not sustained by the record.</p> <p>Master and Servant — Workmen’s Compensation — Appeal—Transcript of Testimony.</p> <p>2. An appeal can be prosecuted by the State Industrial Accident Commission from judgment on appeal in the Circuit Court without filing in the Supreme Court a complete transcript of the evidence taken in the trial court.</p> <p>Appeal and Error — Bond—Necessity—Appeal by Industrial Accident Commission.</p> <p>3. , Where the State Industrial Accident Commission appeals, it is not required to file an undertaking.</p> <p>ON THE MERITS.</p> <p>Master and Servant — Workmen’s Compensation — Notice of Appeal— Time.</p> <p>4. An applicant for compensation for personal injuries under the Workmen’s Compensation Act (Laws 1913, c. 112) was awarded a monthly sum for temporary total disabilities each month for a period of seven months. When the last installment was due, a blank form labeled “Final Settlement Voucher” was sent plaintiff, but was returned by him unsigned, and was again sent to him with a request for his signature on the 16th of November, 1915. The voucher, which was signed and subsequently filed with the commission, recited that it was in final settlement that the sum of $300 had theretofore been paid, and acknowledged the receipt of the further sum of $50 in full discharge of the obligations of' the state. On November 13, 1916, plaintiff’s attorney filed a notice of appeal from the decision of the industrial board. The statute provides that no appeal shall be entertained unless notice of appeal shall have been served by mail or personally upon some member of the commission within 30 days following the rendition of the decision appealed from, and actual communication thereof to the person affected thereby. Held, that the final voucher sent to plaintiff constituted notice to him of the decision of the commission to suspend payment, and the notice of appeal being filed more than 30 days thereafter was too late.</p> <p>[As to review of facts on appeal under Workmen’s Compensation Act, see note in Ann. Cas. 1916B, 475.]</p>

From Tillamook: George R. Bagley, Judge. Department 1. This is a suit against Tillamook City to quiet title to some lots in that town. Thus called upon to assert its claim, the municipality set up certain proceedings it had carried on for the purpose of reassessing the property for the payment of the expense of building a concrete sidewalk along its front, there having been a previous attempt to collect the charge for making the improvement.

From Marion: William Galloway, Judge. Department 2. This is a suit to quiet title to 60 acres of real estate situated in Marion County, and to certain town lots situated in the town of Pratum in the same county.

<p>From Wasco: William L. Bradshaw, Judge.</p> <p>Department 1.</p> <p>Wasco County brought this suit in interpleader so "that the court could decide whether the sum of $920 held by the county should be paid to the New England Equitable Insurance Company, a corporation, hereinafter called the Insurance Company, or to the French & Company Bank, a corporation, hereinafter referred to as the bank.</p> <p>On June 14, 1915, Henry Cromer entered into a contract to construct a certain highway for the county. A bond, signed by the contractor as principal and the Insurance Company as surety, was delivered to the county, as required by Chapter 142, Laws of 1913, and was filed in the office of the county clerk on June 17, 1915. The contract obligated the contractor, as required by statute, to pay all persons supplying labor or material for the prosecution of the work: Chapter 61, Laws 1913. The written contract also provided that “ * * the partial payments under this contract and the final payment thereon shall be as provided by” Chapter 142, Laws of 1913. The bond was given to secure the performance ■ of the contract and payment to all persons supplying labor or material for the prosecution of the work provided for in the contract. Cromer entered upon the performance of the contract and constructed a portion of the highway. Monthly estimates were made of the work done by Cromer, and the county paid him 75 per cent of the amount earned as shown by such estimates and retained the remaining 25 per cent as stipulated by the written contract between Cromer and the county and as required by Chapter 142, Laws of 1913, then in force. Cromer continued in the performance of his contract until about September 10, 1915, when he was obliged to quit because his equipment had been attached by creditors. A voluntary petition in bankruptcy was filed by Cromer on October 7,1915, and he was subsequently adjudged a bankrupt. Negotiations between the county and the Insurance Company resulted in an agreement, on October 25, 1915, terminating the contract with Cromer and releasing the Insurance Company from its obligation to complete the highway upon payment by it of all the outstanding labor and material claims against the contractor. The Insurance Company paid claims made against Cromer, and approved by him, totaling $3,907.22.</p> <p>On August 5, 1915, the bank loaned $200 to Cromer and took his promissory note for that amount, and at the same time Cromer signed and delivered to the bank an order directing the county to “ * * pay to French & Company, Bankers, all money due on August estimate for work done on the J. T. Harper Road Contract. Please also pay all retained percentage upon completion of contract.” The order was presented to the county and filed in the office of the county clerk on August 6, 1915. Cromer borrowed an additional $800 from the bank on August 11, 1915, upon his note for that amount. Cromer “got this money from French & Company on the representations that it was to pay bills for labor and material for the construction of the road.” The money loaned to the contractor upon the two notes was placed to his credit in the bank and was checked out by him for labor performed upon and material furnished for the road. When the $200 note was given it was understood between the bank and Cromer that he was “to have $800 more”; and the order upon the county “was given to reimburse them (the bank) for the money gotten on both of these notes.” When Cromer discontinued work the county had in its hands the sum of $920 which it had retained out of the monthly estimates made during the progress of the work. The complaint filed by the county was accompanied with a tender of $920 to the clerk of the court. The Insurance Company and the bank each answered and each asserted the right to receive the money. The decree of the court was for the bank and the Insurance Company appealed.</p>

Prom Marion: William Galloway, Judge. Department 2. This is a suit to reform three certain leases and agreements on the ground of mutual mistake.

<p>Appeal and Error — Assignment of Error — Scope.</p> <p>1. An assignment that “the court erred in failing to decree the • said assessments void, and in failing to remove the cloud thereof from the title of plaintiffs’ real property,” was sufficient to raise the question of the validity of such assessments on any ground set up in the complaint.</p> <p>Municipal Corporations — Paving—Notice—Sufficiency.</p> <p>2. A notice, the council “deems it expedient and neeessary to improve, * * ” was sufficient notice that paving was “proposed” within Marshfield City Charter, Sections 49, 50, providing for notice of improvements proposed to be made.</p> <p>Municipal Corporations — Local Assessments — Injunction—Relief.</p> <p>3. In suit by several property owners to enjoin collection of local assessments, only matters affecting all of them can be litigated, and an injunction will not be granted on the ground that the lot of one of them is shorter than the others, and that the front-foot rule was unfair.</p> <p>Municipal Corporations — Local Assessments — Time for Objections.</p> <p>4. A property owner who did not appear at a meeting called on due notice to equalize assessments for paving cannot afterward object that the front-foot rule used was unfair to him) in that his lot was shorter than the others.</p> <p>Pleading — Admissions in Answer.</p> <p>5. An admission in an answer that an ordinance provided for improvement of the entire width of a street, and that certain owners had been permitted to have their property approached by a gradual slope from the inner line of the sidewalk to the lot line was not an admission of an allegation in the complaint that the street had been improved for only a portion of the prescribed width.</p> <p>Municipal Corporations — Paving—Notice—Assessments—Injunction.</p> <p>6. A notice that paving is to extend a certain distance is jurisdictional, and where a material part is abandoned property owners may enjoin collection of assessments, and the city council cannot accept the work.</p> <p>Municipal Corporations — Paving Assessments — Abandonment—Cancellation.</p> <p>7. Where action was brought to enjoin part of paving, and the city unreasonably delayed litigating the matter, or in doing the work promptly on removal of legal obstacles, assessments for the completed part .should be canceled on the ground of abandonment, and granting of an injunction only until the city should complete the work was insufficient, because if the city should never do the work the assessments would remain a cloud on the title.</p> <p>[As to time within which special or local assessment must be made, see note in Ann. Cas. 1917F, 137.]</p> <p>Municipal Corporations — Improvements—Contracts.</p> <p>8. In the absence of statutory direction to the contrary, a city may make an improvement through more than one contract.</p> <p>Municipal Corporations — Paving — Abandonment—Avoidance of Assessment.</p> <p>9. If by reason of error or mistake a city is unable to complete a part of proposed paving called for by ordinance and notice, it will be held to have abandoned it, and the collection of assessments levied for the work done will be enjoined.</p>

<p>Contracts — Construction—Duty of Court.</p> <p>1. Where the language of a contract introduced in evidence is plain and unambiguous, it is, under Section 136, L. O. L., the province of the court to determine its legal effect.</p> <p>Principal and Agent — “Independent Contractor” — Interference With Employer.</p> <p>2. Where a bank hired one to move wood within a specified time at a price per cord, assuming no control over the means of transportation of the wood, but only agreeing to identify that portion of the wood to be moved, the relationship of employer and independent contractor obtained.</p> <p>[As to who is an independent contractor, see note in Ann. Cas. 1913B, 573.]</p> <p>Principal and Agent — Independent Contractor — Contract — Construction.</p> <p>3. Where a bank hired one to move wood, neither the absence of a provision requiring him to give bond nor the presence of provisions requiring care in moving the wood, and protection from damage by fire, and that the employer could take control upon breach, militated against relationship of employer and independent contractor.</p> <p>Principal and Agent — Liability for Supplies Furnished — Independent Contractor.</p> <p>4. The presence in a contract between an employer and an independent contractor of stipulations to hold the employer harmless from liens for labor and material, and exempting the employer from liability for personal injuries, without a clause exempting from liability for labor and supplies, neither makes the contractor a mere agent, nor admits liability for labor and supplies furnished him.</p> <p>Evidence — Proof of Agency — Third Parties not Bound by Written Contract of Agency.</p> <p>5. Where the pleadings authorize evidence of express or implied contract of ageney, of agency by ratification, and by estoppel to establish employer’s liability for goods sold to independent contractor, the plaintiff not being a party to agreement creating relationship of employer and ind'ependent contractor, nor at time of sales having knowledge thereof, is not bound by the contract of ageney, but may introduce other evidence of ageney without pleading modification of the contract.</p> <p>Appeal and Error — Harmless Error — Exclusion of Evidence.</p> <p>6. Where proof of agency that was wrongfully excluded was insufficient, if introduced, to establish the relation, the error was harmless.</p> <p>Principal and Agent — Independent Contractor — Payment of Workmen by Employer.</p> <p>7. The payment of workmen by an owner or employer does not necessarily transform an independent contractor into an agent.</p>

<p>Appeal and Error — Exhaustion of Eights — Eight of Appeal.</p> <p>1. Where plaintiffs’ rights under their first notice of appeal had expired, the appeal having been perfected by service of notice and filing the required undertaking, plaintiffs’ rights were exhausted and they could not take another appeal.</p> <p>Appeal and Error — Notice—Service on Attorney.</p> <p>2. Plaintiffs’ service of notice of appeal to the Supreme Court upon one of defendant’s attorneys was sufficient.</p>

<p>Contracts — Legality of Object — Testamentary Contracts.</p> <p>1. Contract, in consideration of care and support, to give land and cancel note and mortgage for money loaned to build on the land, on full performance by the mortgagors, is enforceable.</p> <p>Contracts — Evidence—Sufficiency.</p> <p>2. In suit to cancel note and mortgage, evidence held insufficient to warrant cancellation on ground of contract to give lot and cancel note in consideration of care and support.</p>

From Linn: William Galloway, Judge. Department 1. This is a suit to compel the specific performance of a contract to purchase land. Plaintiffs are the administrator and the heirs at law of H. B. Moyer, deceased.

From Multnomah: George E. Bagley, Judge. Department 1. This is an action brought by the plaintiff upon a beneficiary certificate issued by the defendant on January 18, 1915, to Joseph A. Eobinson, who died October 14, 1915. The plaintiff, who was the wife of deceased, was named as beneficiary in said certificate and seeks to recover from the defendant $631, the amount due by the terms of said certificate.

<p>Judgment — Conclusiveness of Decree — Parties Concluded.</p> <p>1. In suit by attorney against clients and latters’ assignees of corporate stock to recover for services and to enforce a lien against the stock, such clients and assignors were concluded by the decree, where they had timely notice of the pendency of the suit, although they failed to make defense therein.</p> <p>Judgment — Notice of Pendency of Suit — Evidence.</p> <p>2. In action by an attorney against clients, husband and wife, and their assignees of corporate stock, to foreclose a lien for services upon such stock, evidence of another attorney that he notified the husband by telegram of the pendency of the suit, and took the wife’s deposition for use therein, held to warrant a finding that both husband and wife had notice of the pendency of the suit, so as to be bound by the decree therein against the assignees.</p> <p>Husband and Wife — Liability of Wife on Implied Indemnity.</p> <p>3. Where an attorney had rendered services for a husband and wife in a suit to recover corporate stock, and such cause of action was subsequently assigned by the plaintiffs to one who had no notice of the attorney’s lien, the wife was jointly liable -with her husband to the assignee to indemnify him for payments made by him to discharge the lien, and for costs and expenses of suit by attorney to enforce the same.</p> <p>Trial — Instructions Invading Province of Jury.</p> <p>4. Where there is no conflict in the evidence as to an issue, the court is justified in charging the jury to find as alleged in the pleadings of one of the parties.</p> <p>[As to propriety of instruction referring jury to pleadings to determine issues, see note in Ann. Cas. 19120, 227.]</p> <p>Attorney and Client — Fees—Reasonableness.</p> <p>5. In an action for attorney’s fees paid for services rendered on behalf of plaintiff corporation in defending a suit to foreclose an attorney’s lien, for which defendants were liable, a charge of $775 held, under the evidence, not excessive.</p>

From Multnomah: William N. Gatens, Judge. Department 1. This action was brought to recover alleged excess freight charges paid to the Southern Pacific Company for transporting fifty-five carloads of pickled fish, over its lines and connections, from California to New York. The shipments were made on and between May 7, 1910, and June 25, 1912.

<p>From Douglas: James ~W. Hamilton, Judge.</p> <p>Department 1.</p> <p>This is the second appeal in this case. The pleadings are set out at length in the opinion of this court in the former appeal, and it is therefore unnecessary to repeat them here: Be War v. First National Bank, 80 Or. 260 (156 Pac. 1038). Hpon the first trial there was a verdict and judgment for plaintiff from which defendant appealed, and the judgment was reversed and the cause remanded for a new trial which has been had, resulting as before, and defendant again appeals.</p>

Prom Malheur: Dalton Biggs, Judge. In Banc. Statement by Mr. Chief Justice McBride. This was a suit for divorce. The district attorney was not served with summons but personally appeared at the trial. There was a decree for plaintiff and defendant appeals. No notice of appeal was served upon the district attorney and the respondent moves to dismiss the appeal for that reason.

<p>Carriers — Bill of Lading — Interstate or Intrastate.</p> <p>1. A bill of lading is not conclusive of the character of the shipment as interstate or intrastate commerce, but it may be considered as a circumstance with other incidents of the transaction on the question; the issue being one of fact for the jury, unless the evidence is conclusive.</p> <p>[As to the conelusiveness of bills of lading, see note in 30 Am, St. Rep. 634.]</p> <p>Trial — Instructions—Singling Out Evidence.</p> <p>2. Requested instructions, selecting particular pieces of testimony and charging the jury wholly thereon, when there are other circumstances proper for its consideration, is an invasion of the province of the jury.</p> <p>Commerce — Interstate Commerce — Common Control.</p> <p>3. Shipments over defendant’s road wholly within the state were not necessarily interstate commerce, depending on whether the acts were done under a common control, management or arrangement for a continuous shipment from one state to another, merely because the lumber was destined for points outside of the state, as shown by notations on the bills of lading, an d was at the terminus of. defendant delivered to a connecting line and by it carried out of the state and delivered; and it paid defendant its charges for its haul.</p> <p>Carriers — Overcharges for Freight — Interest.</p> <p>4. Interest should not be allowed on a claim for overcharge in freight rates.</p> <p>Abatement and Revival — Substitution of Parties — Effect After Reversal.</p> <p>5. The substitution in the appellate court of parties for the plaintiff corporation, because of the expiration of the five years after its dissolution within which it could wind up its affairs, is only for the purpose of appeal, and so after reversal there must be a substitution in the trial court.</p> <p>Abatement and Revival — Substitution of Parties — New Pleading.</p> <p>6., Substitution in the trial court for a plaintiff corporation which has become defunct, of its stockholders, for which leave must be obtained, must be not merely by insertion of their names in the complaint, but by allegations therein showing their right to recover, on which defendant may take issue.</p> <p>Appeal and Error — Objections Below — Want of Cause of Action.</p> <p>7. Objection that the complaint does not state facts sufficient to constitute a eause of aetion, excepted by Section 72, L. O. L., from the grounds of objection that shall be deemed waived if not taken by demurrer or answer, may be made for the first time on appeal.</p> <p>Appeal and Error — Objections Below — Want of Cause of Action.</p> <p>8. Where names of parties are written into a complaint as substituted for plaintiff, without any allegations showing right in them to recover, the ground of objection, relative to right to raise it for the first time on appeal, is that the complaint does not state a cause of aetion, and not that the substituted parties have not legal capacity to sue, which applies to minority, insanity or the like.</p> <p>Abatement and Revival — Substitution of Parties — Order—Effect.'</p> <p>9. An order of the trial court that certain persons are substituted as plaintiffs amounts to no more than permission to them to proceed in their own right, and does not dispense with necessity of their stating a cause of aetion in themselves.</p> <p>Appeal and Error — Void Judgment.</p> <p>10. Appeal may be taken from a void judgment.</p> <p>Abatement and Revival — Remand on Appeal — Continuance of Action by Substituted Parties.</p> <p>11. The greatest effect that a remand for new trial, after it appears that plaintiff corporation has become defunct, can have, relative to right to continue the aetion by substitution of the corporation’s successors in interest as plaintiffs, is to extend to such time the commencement of the year limited by Section 38, L. O. L., for allowing the same.</p>

From Marion: William Galloway, Judge. Department 2. The Juvenile Court of Marion County made an order allowing the applicant $15 a month for the support of herself and three children under the age of 16 years, under the provisions of the Mother’s Pension Act, Chap. 42, Laws of 1913, as amended by Chap. 90, Laws of 1915. This act is superseded by the Law of 1917 (Laws 1917, p. 501).

<p>Specific Performance — Right to Remedy — Existence of Other Remedy.</p> <p>1. Where plaintiffs granted right of way in consideration of railway’s agreement to build a dike which the railway failed to build as specified in the contract, plaintiffs were not entitled to specific performance, since they could have had another build the dike and could recover as damages the cost thereof.</p> <p>[As to specific performance of construction contract or contract to repair, see note in Ann. Cas. 1913A, 923.]</p> <p>Specific Performance — Retaining Jurisdiction — Damages.</p> <p>2. Where existence of adequate remedy at law precluded jurisdic: tion in court of equity of suit for specific performance, the question of damages prayed for in such suit could not be considered,.</p>

Prom Limi: William Galloway, Judge. Department 2. This is a suit of interpleader filed by the United Artisan Lodge, a fraternal and benevolent organization, for the purpose of determining the ownership of the $1,900 insurance due upon the life of Harry- H. Cronise. A benefit certificate for $2,000 was first issued to him by plaintiff on May 4, 1896. The money was paid into court.

<p>Boundaries — Description—Recorded Plat — Affidavit and Certificate.</p> <p>1. A surveyor’s affidavit and certificate attached to and made a part of a plat of a city addition when filed for record should be regarded as incorporated in the description of outboundaries in the tract platted.</p> <p>Boundaries — Description—Recorded Plat — Monuments.</p> <p>2. A recorded plat of a city addition which makes the boundary lines of lots therein coincident with the surveyed line of railroad right of way recognizes the way as a monument determining the lot lines.contiguous thereto.</p> <p>[As to the general rule for the location of boundaries, see note in 129 Am. St. Rep. 990.]</p> <p>Pleading — Admission by Demurrer.</p> <p>3. A demurrer admits all averments of fact well pleaded, and any reasonable and proper inference dedueible therefrom.</p> <p>Boundaries — Description — Lots Adjoining Railroad — Mistake in Survey.</p> <p>4. Since, by Section 878, subdivision 2, L. O. L., and otherwise, the rule is that monuments govern measurements, where a survey of a plat of a city addition adjoining a railroad overlapped the line of the railroad’s right of way by reason of a surveyor’s mistake in assuming that the track occupied the center line of the original survey of tlie right of way, the surveyor’s notations on the map must yield to the boundary of the railroad company’s easement, and lots conveyed in such addition adjoining the railroad right of way will be bounded accordingly in construing the deed.</p>

From Multnomah: John P. Kavanaugh, Judge. Department 2. This was an action to recover upon an insurance policy.

<p>Mortgages — Assignment of Land Contract.</p> <p>1. An assignment of a contract for the sale of land may be shown by parol evidence to be a mortgage.</p> <p>Pledges — Parol Evidence.</p> <p>2. An assignment of a land contract as collateral to a note, and the note, may be shown by parol to be merely security for the performance of a contract.</p> <p>Bills and Notes — Defenses—Pleading.</p> <p>3. Where the condition upon which a promissory note was to become operative never happened, such faet need not be specially pleaded, but is a failure of consideration provable under the general issue.</p> <p>Pledges — Evidence.</p> <p>4. Evidence held, to show that an assignment of a contract for sale of land securing a note, and the note, were merely executed to guarantee return of property.</p> <p>Appeal and Error — Equity Cases — Findings of Fact — Review.</p> <p>5. • Where it cannot be determined in equity case whether decree for defendant was based on assumption that plaintiff’s evidence was incompetent, or that testimony preponderated in favor of defendant, that the trial judge saw the witnesses will not be given weight in considering the evidence.</p> <p>[As to the law of collateral securities, see note in 32 Am. St. Rep. 711.]</p>

From Douglas: James W. Hamilton, Judge. Between January 22, 1906, and November 18, 1910, G-. P. McNamee deposited $6,057.92 with the First National Bank of Roseburg, and he withdrew $3,101.32, leaving a balance of $2,956.60 which he is attempting to recover in this áction. The bank defended by averring that the alleged balance of $2,956.60 had been withdrawn by T. P. Sheridan pursuant to authority conferred upon him by the plaintiff.

From Multnomah: Harry H. Belt, Judge. Department 2. This suit was commenced December 8, 1915, by the Crown Company, a corporation, formerly the Crown Trust Company, against Emma Cohn, Celia Friendly, Laura Rosenthal, Julius C. Friendly and Seymour C. Friendly, individually and as trustees of Clara Friendly, deceased, to rescind their lease of real property, which demise contained an option to purchase the land, and to impress thereon a lien for the improvement thereof, on…

Crook County: T. E. J. Duffy, Judge. In Bane. Based upon certain alleged irregularities in the election held in Crook County on November 7, 1916, to determine whether a designated part thereof should become a new county to be called Deschutes County, the State of Oregon on the relation of a taxpayer and voter residing in the proposed municipality, brought this action to have the same declared void and to oust from office those individual defendants who had been appointed by…

<p>Judgment — Pleading—Necessity.</p> <p>1. A judgment cannot be of any force without a pleading to support it.</p> <p>Setoff and Counterclaim — Conversion—“Counterclaim.”</p> <p>2. Under Section 401, L. O. L., providing a counterclaim in equity shall be one upon which suit might be maintained by defendant against plaintiff, and in addition to the cases specified in Section 74 it is sufficient if it be connected with the subject of the suit, in a suit to foreclose a deed of trust, plaintiff’s conversion of cash and bonds of defendant after beginning of suit cannot be interposed as a counterclaim.</p> <p>[As to general principles governing setoff in equity, see note in 47 Am. St. Rep. 578.]</p> <p>Courts — Jurisdiction—Property in Other States.</p> <p>3. The jurisdiction of a state court does not extend to property which is actually beyond its boundaries, and the situs of a chose in action is ordinarily at the residence of the creditor or holder thereof.</p> <p>Pleading — Defects—Cured by Verdict.</p> <p>4. Although a defective statement of a good cause of action may be cured by verdict, an utter absence of averment thereof cannot be so cured.</p> <p>Corporations — Foreclosure of Trust Deed — Defenses.</p> <p>5. In a suit to foreclose a corporate trust deed for default in interest, it is no defense that the trustee, acting with the corporation’s directors, so manipulated the corporate affairs that the corporation was unable to pay the interest; for a foreclosure proceeding is not one in which to redress the grievances of a minority stockholder in affairs not directly connected with the transaction of floating and securing the loan involved.</p> <p>Corporations — Foreclosure of Trust Deed — Compensation of Trustee.</p> <p>6. Where a corporate trustee assumes control of the board of directors of its cestui que trust, and through them conducts the cestvA’s affairs to the latter’s loss and its own gain, it cannot be awarded compensation for foreclosing deed of trust against the latter.</p>

<p>Attachment — Liabilities on Bonds — Extension.</p> <p>1. The amount of liability of a surety company, on bond to release an attachment, was fixed thereby, and could not be extended to other actions against the same defendant by his subsequent agreement, or by action of the court.</p> <p>Attachment — Liabilities on Bonds — Estoppel of Surety.</p> <p>2. A surety on a bond to release an attachment is not estopped by the judgment to show that the principal never released the property proposed to be discharged.</p> <p>[As to judgment against the principal as evidence against the surety on attachment bonds, see note in Ann. Cas. 1915D, 407.]</p> <p>Appeal and Error — Judgment by Consent.</p> <p>3. A party who consents that a judgment or deeree be rendered against him cannot change his mind and appeal from the judgment.</p> <p>Principal and Surety — Consent to Judgment — Entry Without Notice.</p> <p>4. If a surety, by his undertaking, consents that a judgment be rendered against him, in the absence of fraud or collusion it may be entered without notiee.</p> <p>ON THE MERITS.</p> <p>Appeal and Error — Service of Notice — Time.</p> <p>5. Where a judgment was rendered on December 16, 1915, and entered on December 18th, and notice of appeal was served and filed on February 17, 1916, the notice was not served within 60 days, as required by Section 550, subdivision 5, L. O. L., as amended by Gen. Laws 1913, page 617, the time for appeal expiring on February 16, 1916.</p> <p>Courts — Jurisdiction—Dismissal on Court’s Own Motion.</p> <p>6. Whenever want of jurisdiction appears, it is the duty of the court, at any stage of the proceeding, even on its own motion, to refuse to proceed further.</p> <p>ON APPEAL PROM TAXATION OP COSTS.</p> <p>Costs — Prevailing Party — Dismissal of Appeal.</p> <p>7. Where appeal was dismissed s-ua sponte, or on oral motion on the ground that the transcript was not filed in time, the respondent is entitled to costs as the prevailing party.</p>

<p>Chattel Mortgages — Validity.</p> <p>1. Where the lender to the purchaser of a stock of goods made the loan in good faith and took a chattel mortgage on the stoek as security, believing that the mortgage was security, and such mortgage was not given for the benefit of the purchaser of the stock of goods, the proceeds of any sales to be paid to the mortgagee or used in purchase of new stock to come under the mortgage and to replace that sold at the inception of the transaction, the mortgage was valid as between the lender and the purchaser.</p> <p>Chattel Mortgages — Future-acquired Personalty — Fluctuating Stock— Validity.</p> <p>2. A chattel mortgage upon future-acquired personal property or a fluctuating stock of goods is valid as between mortgagor and mortgagee.</p> <p>[As to chattel mortgage on stock of mercantile goods as covering additions thereto, see note in Ann. Cas. 1916D, 1215.]</p> <p>Chattel Mortgages — Future-acquired Personalty — Fluctuating Stock— Perfection of Lien.</p> <p>3. Though a chattel mortgage, executed in good faith by the purchaser of a stock of goods to the person who lent him money to enable him to make the purchase was invalid as against the creditors of the purchaser, if being upon a fluctuating stock of goods, the lender’s mortgage lien was perfected when he was put in possession of the merchandise by the purchaser, the mortgage operating as an executory agreement which subjected after-acquired goods to the mortgagee’s lien on his taking possession before the rights of third persons intervened.</p> <p>Chattel Mortgages — Future-acquired Personalty — Fluctuating Stock— Subjection to Lien.</p> <p>4. Mere existence of claims of creditors of the mortgagor, without attachment or seizure upon execution, was not an intervention of the rights of third persons, preventing subjection of after-acquired goods to the lien of a chattel mortgage on the mortgagee’s taking possession before the rights of third persons intervened.</p> <p>Chattel Mortgages — Future-acquired Personalty — Fluctuating Stock— Rights of Mortgagee.</p> <p>5. Where money was lent to enable the borrower to purchase a stock of goods, and the lender took a chattel mortgage on the fluctuating stock, authorizing him, in case of default, to take possession of the goods and sell them at private sale without notice to pay the borrower’s note, the fact that the lender, when he took possession under the stipulation and was proceeding in good faith to sell the property, was not unmindful of the claims of unsecured creditors and offered and proposed to get all he could out of the property for them, did not lessen nor defeat his security.</p> <p>ON PETITION FOR REHEARING.</p> <p>Chattel Mortgages — Foreclosure—Assignment of Accounts to Mortgagee.</p> <p>6. Where accounts payable to mortgagor are assigned to mortgagee as collateral security for note secured by mortgage, the accounts will not be given an estimated value in reducing balance due on note, but actual amount realized on accounts will be. added to proceeds of sale of mortgaged property for satisfaction of balance due on note and costs of foreclosure, surplus to go to mortgagor.</p> <p>Chattel Mortgages — Foreclosure—Accounts—Surplus.</p> <p>7. Mortgagee in such case must account to receiver of mortgagor for balance realized thereon and for the uncollected accounts.</p>

From Harney: Dalton Biggs, Judge. In Banc. This is an action for the conversion of personal property. It appears that on November 28, 1914, plaintiff borrowed $1,000 from the defendant for which sum he gave his promissory note due one year from date.

From Wallowa: John W. Knowles, Judge. Iu Banc. Plaintiff obtained a decree of divorce from defendant, wherein it was ordered that she should have the custody of the minor child, Margaret, until the further order of the court, with permission to defendant to visit the child at reasonable times and have the custody of her for a period of two weeks in every three months.