Volume 89 — Oregon Reports

From Morrow: Gilbert W. Phelps, Judge. In Banc. This is a suit in the usual form to foreclose a mortgage given by Greene and his wife to the plaintiff, covering certain lands in Morrow County, as a security for the payment of their $5,000 note of January 30, 1911, payable to the order of plaintiff six months after its date, with interest at 8 per cent per annum.

From Morrow: Gilbert W. Phelps, Judge. In Bane. This is a suit by the plaintiff against the school district, its directors and clerk, to prevent them from entering into a contract for ór building a schoolhouse in the district.

From Marion: Percy E. Kelly, Judge. Department 2. This is an action for money had and received. The cause was tried to the court and jury and a judgment followed in favor of plaintiff. Defendant appeals.

From Baker: Gustav Anderson, Judge. In Banc. Plaintiff commenced this proceeding in eminent domain against defendant, and alleged among other things that plaintiff tendered to defendant the sum of $25,000, for the lands desired to be taken for a dam and reservoir site and right of way and operation of an irrigation system, which defendant refused to accept.

From Malheur: Dalton Biggs, Judge. In Banc. This is a suit by T. H. Craig against the Crystal Realty Company, a corporation, and others, to foreclose two alleged liens for clearing and improving land.

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 2.</p> <p>On petition for rehearing.</p>

From Malheur: Dalton Biggs, Judge. In Banc. From statements in the briefs it seems that the matter under consideration arose in a proceeding for the formation of a drainage district in Malheur County under Chapter 340 of the Laws of 1915.

<p>Evidence — Letters and Circulars.</p> <p>1. A depositor suing a bank for an alleged balance may not introduce a printed circular mailed to him, announcing defendant’s consolidation with the D. bank, or letter on letter-head of the D. bank signed by its president, making such announcement and stating continuance in the business of defendant’s former president; it not being shown that D.’s president was agent of or authorized to speak for defendant, or that the circular was mailed by its authority.</p> <p>Trial — Instructions—Conformity to Evidence.</p> <p>2. An instruction framed on a theory of facts of which there is no evidence is properly refused.</p> <p>Principal and Agent — Creation of Relation.</p> <p>3. Merely because a national bank cannot act as broker for loaning for a depositor, money which it has on deposit, arrangement by him with its president that it should do so does not make the president as an individual his agent.</p> <p>Principal and Agent — Authority to Loan.</p> <p>4. Authority to agent to loan money does not authorize him to borrow the money for himself.</p> <p>[As to general rules respecting authority of agent, see note in 16 Am. St. Rep. 493.]</p> <p>Principal and Agent — Ratification—Knowledge.</p> <p>5. Ratification of an agent’s act, in exceeding his authority to loan by borrowing the money for himself, cannot be imputed to the principal merely because be was told that a loaa was made, without being informed of the facts.</p> <p>Account Stated — Impeachment.</p> <p>6. One to whom a statement of account was rendered, though having made no objection, may impeach it for fraudulent concealment of facts.</p> <p>Banks and Banking — Withdrawal of Deposit — Evidence.</p> <p>7. Statement by a depositor in a bank that he had loaned his money to its president is competent evidence for the bank that he had withdrawn his money from the bank.</p> <p>Banks and Banking — Liability of Bank — Acts of President as Individual.</p> <p>8. The president of a bank may as an individual borrow money for his private account from a depositor in the bank; dealing with one who is president of a bank not necessarily making his acts those of the bank.</p> <p>Limitation of Actions — Action by Bank Depositor.</p> <p>9. The statute of limitations does not begin to run against claim of a depositor in a bank till his demand has been refused.</p>

<p>Appeal and Error — Matters Reviewable — Demurrer—Grounds.</p> <p>1. A demurrer on grounds other than the running of limitations does not raise such question on appeal.</p> <p>Cancellation of Instruments — Demurrer—Equitable Jurisdiction.</p> <p>2. Where it appears inferentially that defendant was holding land as a guardian when she fraudulently prevailed upon plaintiffs to sell to her at an inadequate price, a complaint was not demurrable as not calling for equitable jurisdiction, although the court might not be able to grant the specific relief prayed for.</p> <p>Guardian and Ward — Recovery of Property — Equity or Law — Inconsistent Remedies.</p> <p>3. Where defendant was appointed guardian of plaintiffs and of personal property in Oregon, but not in1 Washington as to land there, and she purchased such land from them fraudulently at an inadequate price, equity had no jurisdiction of an action for the difference between the price received and the value of the land, it being necessary in such case that plaintiffs either affirm the transaction and sue for damages or repudiate the bargain and call upon equity to place them in statu quo, but both remedies cannot be had in one action.</p> <p>[Powers of guardian in chancery and at common law, see note in 18 Am. Dec. 689.]</p> <p>ON REHEARING.</p> <p>Infants — Sale of Land — Fraud of Purchaser — Remedy.</p> <p>4. Remedy of infants induced by fraud to sell their land for less than its value, they, on arriving at majority, choosing to affirm the sale, and not asking to have it set aside, is only at law for damages; there being nothing calling for an investigation that a jury cannot readily make.</p> <p>Bean, J., dissenting.</p>

From Douglas: George F. Skipworth, Judge. Department 1.' The defendants appealed from an order confirming a sale of property which had been sold pursuant to an execution issued on a money judgment and a decree foreclosing a mortgage. On May 27, 1909, E. N. Camp executed and delivered to H. G. Sonnemann a promissory note for $8,681.67 payable on or before two years after date.

<p>From Harney: Dalton Biggs, Judge.</p> <p>In Banc.</p> <p>This is an action brought to recover damages for trespasses on plaintiff’s lands by defendants’ sheep. The trespasses are alleged to have taken place April 12, 1917, and May 3, 1917. Plaintiff alleges that the sheep ate the grasses growing on his lands and tramped out the roots.</p> <p>The jury found for plaintiff in the sum of $300 and defendants appeal from a judgment on this verdict.</p>

<p>Attorney and Client — Powers of Attorney — Satisfaction of Judgment.</p> <p>1. Under Section 1083, L. O. U., authorizing attorney to discharge claim and acknowledge satisfaction of judgment, where client obtained judgment for return of property or for its value, his attorney had power to satisfy the judgment npon payment of the assessed value.</p> <p>Replevin — Satisfaction of Judgment — Effect.</p> <p>2. Where • owner of wheat attached by sheriff secured judgment against sheriff for the wheat or its value and accepted the assessed value in cash from the sheriff, title was transferred to the sheriff.</p> <p>Sales — Transfer of Title — Executory Contracts.</p> <p>3. A letter confirming sale of wheat to be delivered upon certain terms as soon as threshed was a mere executory contract, passing no present title, and insufficient to support replevin by the purchaser of the wheat.</p> <p>Replevin — Satisfaction of Judgment — Effect.</p> <p>4. Where sheriff with attachment against a debtor levied it on wheat found in possession of the debtor’s brother, and took the wheat to recover which the brother maintained replevin, securing judgment for the wheat or its value, and accepted the cash value of the wheat, it was immaterial whether the forms for attaching property in the hands of a third person were followed, since the satisfaction of the judgment in replevin transferred the title to the sheriff.</p> <p>Attachment — Bailee of Sheriff.</p> <p>5. Where defendant, having executory contract to buy wheat from third person, accepted the wheat from the sheriff, who had attached it in such person’s hands, and issued warehouse receipts to the sheriff it became the sheriff’s bailee, and in a way attorned to him.</p> <p>Sales — Transfer of Title — Executory Contracts — Performance—Acts in Derogation.</p> <p>6. Where owner of wheat had executory contract to sell it to defendant, but on the way to the warehouse it was attached by the sheriff, who sent note to defendant, requiring it to hold the wheat for it, the owner’s act in delivering the wheat was not in performance, but in derogation of the contract to sell the wheat, and the defendant acquired no title but merely possession as bailee of the sheriff.</p> <p>Sales — Transfer of Title — Delivery to Sheriff.</p> <p>7. Where a third person contracted to sell wheat to defendant, and while he was delivering it, it was attached by the sheriff, since it was competent for him, under Section 304, L. O. L., to deliver the property to the sheriff, when the sheriff then delivered it to the defendant as his own bailee and received warehouse receipts from defendant, defendant could not say that the delivery amounted to performance of the executory contract.</p> <p>[As to replevin for property seized under execution, see notes in 20 Am. Dec. 696; 80 Am. St. Eep>. 751.]</p>

<p>Bills and Notes — Accommodation Maker — Liability—Statute.</p> <p>1. Under Section 5862, L. O. L., one who signed a firm note as maker without receiving value therefor, to lend his name to the firm, is liable on the instrument to a bank holding for value, though the bank, when it took the note, knew he was only an accommodation party.</p> <p>Bills and Notes — Accommodation Party — Liability.</p> <p>2. One who signed a firm’s note as maker, without receiving value and merely for accommodation, under Section 6023, L. O. L., is primarily liable on the note, and absolutely required to pay.</p> <p>Bills and Notes — Accommodation Party — Liability to Payee or Holder.</p> <p>3. One who sign’s a firm’s note for accommodation, whatever his position on the instrument as between himself and the firm, as to the payee or holder he does not stand as an indorser' or one secondarily liable, and is not entitled so to be treated.</p> <p>[As to rights and liabilities of makers and indorsers of accommodation paper, see note in 31 Am. St. Rep. 745.]</p> <p>Bills and Notes — Accommodation Maker — Statement by Payee.</p> <p>4. Statement by the payee of a note, to one who signed as maker for accommodation only, that he would be safe in signing the note did not change the legal effect of the transaction, which rendered him primarily liable to pay.</p> <p>Evidence — Parol Evidence Affecting Writing — Conditional Signature of Note.</p> <p>5. In an action on a note against one who signed for accommodation only, there being no fraud charged in its execution, it is nof competent for the accommodation maker to allege or prove a contemporaneous parol agreement that under certain conditions he should not be called upon to pay, thereby varying and altering the legal effect of the instrument.</p> <p>Bills and Notes — Accommodation Maker — Extension of Time — Statute.</p> <p>6. An accommodation maker, under the Negotiable Instrument Act, Section 5834, L. O. L., et seq., is not relieved from payment of the note by the extension of the time of the payment thereof for a valuable consideration therefor without his consent, though the holder knows him to be only an accommodation maker, as he is primarily liable.</p> <p>Bills and Notes — Accommodation Maker — Duty to Pay.</p> <p>7. When a note became due, it was the duty of an accommodation maker, to protect his interests, to pay the note, and then look to his comakers for reimbursement.</p> <p>Bills and Notes — Accommodation Maker — Postponement of Eight to Collect.</p> <p>8. The accommodation maker of a note cannot complain of the postponement of the payee’s right to enforce collection of the instrument made without such maker’s assent.</p> <p>Bills and Notes — Accommodation Maker — Duty.</p> <p>9. If one of the firm which executed a note with an accommodation maker when it was due arranged with the payee to liquidate the indebtedness on the next day, it was incumbent on the accommodation maker, to free himself from liability, to see that the payment was made.</p> <p>Bills and Notes — Accommodation Maker — Notice of Dishonor — Statute. 1</p> <p>10. An accommodation maker of a note is not entitled to notice of dishonor under Negotiable Instrument Act, Section 5834 et seq., L. O. Ii.</p> <p>Bills and Notes — Accommodation Maker — Discharge—Statute.</p> <p>11. An accommodation maker of a note, being primarily liable, by Section 5952, L. O. L., can elaim discharge by an act which will discharge a simple contract for the payment of the money.</p>

<p>From Linn: Percy E. Kelly, Judge.</p> <p>Department 1.</p> <p>This is an action of replevin in which the plaintiffs seek to recover “about 794 bags of Oregon prunes,” containing “about 70,000 pounds” of the value of $4,500. They allege that the property was in possession of one Pereival I. Rust, on storage by them, subject to their order and shipping directions, and that the defendant wrongfully took the prunes from the possession of Rust, caused them to be loaded into a railway ear and shipped to Albany where the defend-' ant detains them unlawfully to the plaintiffs’ damage in the sum of $350. They demand judgment for the recovery of possession of the property, or for $4,500 as its value alternatively, together with $350 damages.</p> <p>The answer denies the whole complaint and avers that a partnership by the name of John H. Leslie & Company of Chicago, Illinois, employed the defendant, as its agent, to purchase, treat and pack prunes, in pursuance of which he purchased from Rust 74,661 pounds of prunes of the reasonable value of $5,200, the same being contained in the 794 bags and being the identical prunes described in the plaintiffs’ complaint. He says, also, that for his services so rendered, he was to receive a commission of one cent per pound, and that after the fruit had been properly treated and packed he was required to ship it immediately to Leslie & Company. He avers that he bought the prunes in question with the money of his principal, took it into his own custody and, while he was engaged in treating and packing it, the plaintiffs took the same by virtue of a writ of replevin issued in the present case. He states that at the time alleged in the complaint he was, and at all times since then, has been and still is entitled to the immediate possession of the prunes and the whole thereof; that Leslie & Company are the absolute owners of said property and that this defendant as their agent is entitled to the immediate possession thereof.</p> <p>Further answering, the defendant sets up a contract entered into on June 27, 1916, between the plaintiffs and Rust, of which the following is a copy:</p> <p>“BUYING CONTRACT.</p> <p>“Roseburg, Oregon, June 27, 1916.</p> <p>“In consideration of the prices per pound herein specified, Percival I. Rust, the seller, has sold, and H. S. Gile Company, the buyer, has bought the herein-before mentioned 1916 crop of prunes produced during the current year, upon the following described property, the output of his dryer at Cottage Grove, guaranteed to not be less than one minimum carload, which crop said seller agrees to properly dry, cure and deliver in its entirety, unless otherwise agreed to in writing by buyer, and hereby guarantees to be the sole and absolute property of seller, and free from all incumbrances, except as herein specified, and which, with the price per pound, variety and quantity (estimated by the seller) is as follows:</p> <p>“Quantity, 40,000 lbs. or more. Variety, Italians. Price paid per pound for prunes testing between 30-35, 6%cts.; 35-40, 6 cts.; 40-45, 5% cts.; 45-50, 5% cts.; 50-55, 5% cts.; 55-60, 5 cts.; 60-65, 4% cts.; 65-70, 4y2 cts.; 70-75, 4y2 cts.; 75-80, 4 cts.; 80-85, 3% cts.; 85-90, 3y2 cts.; 90-95, 3% cts.; 95-100, 3 cts.; 100 over -cts., delivered f.o.b. cars Cottage Grove, sax to be furnished by the buyer. French or Petites same prices as Italians.</p> <p>“Saidbuyer agrees to pay for said crop at the price named, when delivery is completed, provided the seller delivers the same thoroughly and properly dried and cured, and free from burned or soft fruit, and in good marketable and merchantable condition. Delivery to be made in bags as soon as buyer requests after drying, but not later than Nov. 15th, 1916.</p> <p>“Buyer shall be entitled to weigh back and reject any portion of crop delivered, not conforming with the terms and conditions of this contract, and snch rejection by buyer shall not invalidate this contract or release the seller from any of its obligations.</p> <p>‘ ‘ Buyer to accept prunes as to count and grade only after prunes have been put in bags.</p> <p>“This contract is understood by both parties to constitute an absolute sale, but until delivery has been completed seller agrees to and does assume all risk of loss or damage.</p> <p>“Time is the essence of this contract.</p> <p>“No alterations or erasures permitted, save with the written consent of the buyer.</p> <p>“In the event of strikes, quarantine, fire or failure of transportation companies to provide cars, buyer may extend time of delivery under this contract, for a period equal to that so lost, and designate another reasonable point of delivery.</p> <p>‘ ‘PeíÍcival I. Bust, Seller.</p> <p>“H. S. Gile & Company, Buyer.</p> <p>“By B. L. Gile.”</p> <p>He states that at the time this agreement was made, Bust was not the owner of any prunes of any kind or nature, nor of any orchard or trees upon which such fruit would grow, nor was he the owner of any contracts for prunes, all of which was known and understood by both him and plaintiffs. The defendant claims that he bought the property in question from Bust about November 23, 1916, in good faith, believing that Bust was the owner thereof.</p> <p>For another answer the defendant pleads what he claims is an estoppel operating against the plaintiffs and denying them the right to claim property in the fruit in question on the ground that they permitted Bust to retain the possession of it, to employ labor in and about it and to exercise acts of ownership over it; that finding Bust in possession of the property under such circumstances and being without any knowledge or intimation that plaintiff had any right to it, the defendant bought the same for his principal, paid Rust the price thereof and took it into his own possession.</p> <p>The reply challenges the new matter in the answer in material particulars, avows the making of the contract quoted in the defendant’s pleading and states that in pursuance thereof Rust did afterwards produce, procure and have ready for delivery the prunes here involved and notified the plaintiffs that the same were ready for delivery; that they thereupon shipped to him the necessary sacks to contain them, having thereon the firm name of the plaintiffs, into which defendant Rust put the prunes for the purpose of fulfilling the contract; that the fruit was in those bags at the time the defendant took it, which he did with knowledge that it was the property of the plaintiffs. The jury rendered a verdict to the effect that defendant is entitled to a return of the property described as 74,661 pounds of prunes of the value of $5,000, together with damages in the sum of $500. Judgment was rendered upon this verdict in favor of the defendant for the return of the property with $500 damages, or, in case the property could not be returned, that the defendant have and recover from the plaintiffs $5,000, together with $500 damages and costs and disbursements. The plaintiffs appeal.</p>

<p>Forgery — False Recital in Deed.</p> <p>1. False recital in deed that E., who signed deed with defendant, was his wife, deed purporting to be deed of said parties, and being executed by E. under the name by which she was known, did not constitute forgery under Section 1996, L. O. L., providing that if any person shall with intent to injure or defraud, falsely make, alter, forge, or counterfeit any deed, or shall with such intent knowingly .utter or publish as true or genuine any such false, altered, forged, or counterfeited writing, shall be punished, etc.; there being no intent to utter deed as that of others.</p> <p>Names — Common-law Right to Change.</p> <p>2. Section 7093, L. O. L., empowering the County Court to hear and determine applications for change of names, does not abrogate the common-law right of a person to change his name.</p> <p>[As to right of individual to change his name, see note in Ann. Cas. 1914D, 427.]</p> <p>Evidence — Presumption as to Laws of Sister State — Common Law.</p> <p>3. In the absence of evidence, it must be assumed that the common-law right of a person to change her name obtains in a sister state.</p>

From Tillamook: George B. Bagley, Judge. Department 2. This is a proceeding to review the action of the County Court of Tillamook County in establishing a county road. The Circuit Court dismissed the writ and the petitioners appeal.

<p>From Multnomah: Robert Tucker, Judge.</p> <p>In Bane.</p> <p>The plaintiff sued the defendant for a divorce. Issue was joined on the complaint and new matter in the answer. The court heard the testimony and on November 16, 1917, dissolved the marriage contract and granted the plaintiff an absolute divorce from the defendant. In settlement of their property rights the court decreed to the defendant an absolute title to all of certain platted property in various cities in Oregon and elsewhere released from any claim to the same on the part of the plaintiff, and to the plaintiff certain acreage free from any claim thereto on the part of the defendant, and finally ordered that the plaintiff pay to the defendant $40 per month as alimony, commencing from the date of the entry of the decree. The defendant appealed and the plaintiff moved to dismiss the same. -</p>

<p>Landlord and Tenant — Lease—Dependent Covenants.</p> <p>1. A stipulation in a lease that lessee shall clear the land, and the further stipulation that lessor shall assist in the clearing by furnishing a man and team, are dependent covenants.</p> <p>Landlord and Tenant — Lease—Performance of Services.</p> <p>2. Where part of the rental for the first year of a five-year lease was the tenant’s agreement to do work in clearing land, such work, no time for performing it being specified in the lease, was due to be performed during the first year, and not within any reasonable time after the tenant assumed possession.</p> <p>Pleading — Amendments.</p> <p>3. Courts should be exceedingly liberal in allowing amendments which are obviously in furtherance of justice, especially in regard to defendants, for while plaintiffs, if their pleadings are insufficient, may dismiss and begin again, defendants have no such opportunity.</p> <p>[As to how far amendments are allowable that vary or alter cause of action, see notes in 34 Am, Dec. 158; 51 Am. St. Eep. 414.]</p>

<p>Prom Marion: Percy R. Kelly, Judge.</p> <p>Department 1.</p> <p>The defendant Esch was the sheriff of Marion County. The Massachusetts Bonding & Insurance Company was a surety on his official bond, which was conditioned, among other things, for him well and faithfully to perform the duties of the office. Equipped with an execution issued upon a judgment against L. S. Barnes in favor of A. B. Spencer, the sheriff levied upon and sold some shares of stock which the plaintiff here claims as her own. Upon these facts she began an action against him and his surety to recover damages for the levy and sale. The court sustained a demurrer to the complaint and the plaintiff appeals.</p>

<p>From Multnomah.: George W. Stapleton, Judge.</p> <p>Department 2.</p> <p>This is a motion to stay execution on a decree against the defendants foreclosing a mortgage. The complaint was in the usual form setting forth breaches of the conditions of the instrument and default of payments when due. After demurrer, the defendant W. P. Adams answered, generally denying every allegation of the complaint and entered a plea in abatement stating that Mrs. Amelia G. Adams, his wife, had acquired title to the property after the mortgage was executed; that he had an inchoate right of curtesy therein, and that he was enlisted and in actual service in the Oregon State Guard, a voluntary organization in the military service of the United States, and prayed for abatement until his term of enlistment should have expired, as provided in Section 1, Chapter 275, Gen. Laws 1917, which is as follows:</p> <p>“No suit or action shall be commenced or maintained, during the period hereinafter provided for, to foreclose any mortgage upon real property, or to collect the debt secured thereby, if the land covered by the mortgage be owned, wholly or in part, by an enlisted man in the Army or Navy of the United States, who shall have enlisted therein in the volunteer forces or who shall have been enlisted in the National Guard of the United States and of the state of Oregon and his organization called into the service of the United States; and the lands of any such soldier or sailor shall be exempt from judicial sale for the satisfaction of any judgment during the period hereinafter provided for; provided, that this moratorium shall extend only during the period of actual service in the army or navy forces of the United States, and in no case shall begin prior to the day on which the Congress of the United States shall declare war, nor continue after sixty days subsequent to the conclusion of such war; provided, that all statutes of limitation in effect in the state of Oregon shall be suspended during the period above described, as to the mortgages, debts and judgments in this Act described.”</p> <p>The testimony indicated that W. P. Adams was a member of what is known as the Oregon State Guard, an organization not identical with the Oregon National Guard, but which had occasionally been called to do guard duty at the shipyards and other places of that character. The court held that this organization was not such as is contemplated by the act of 1917, supra, and entered a decree foreclosing the mortgage, from which decree defendants appealed, giving the usual stay bond. Plaintiff thereupon gave a counter bond as provided in Section 553, L. O. L., and execution and order were issued directing the sale of the property. The sheriff levied and was proceeding to sell the property when defendants applied to this court for an order to recall the execution, and an order was made staying the execution and directing that sale be postponed until a hearing upon the/motion could be heard in this court.</p>

<p>Trusts — Necessary Defendant.</p> <p>1. In an action to Rave a trust declared on a certain certificate of sale in a mortgage foreclosure on the ground of fraud of the attorney in obtaining from plaintiff’s decedent an assignment of the mortgage, an assignee of the certificate is a necessary party defendant, who can be brought in under Section 41, L. O. L., providing that, when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in, although the certificate has not been recorded as required by Section 7131, providing that, if such assignments are not recorded, they shall be void as against subsequent purchasers in good faith.</p>

From Lane: George F. Skipworth, Judge. Department 2. January 15, 1914, plaintiff entered into a written contract with Fred Glenn & Company whereby the company agreed to supply the plaintiff with such papers and proceedings as might be necessary to legally authorize the issuance of $100,000 of its bonds to be used in the construction of a school building for which the plaintiff, upon demand, agreed to pay the company one half of one per cent of the par value of the bonds…

From Multnomah: Robert G. Morrow, Judge. Department 1. The plaintiff Frank Camenzind suffered the loss of two fingers while working for the Freeland Furniture Company, a corporation, on a machine known as a double spindle shaper. Camenzind sued the company and obtained a judgment for damages; and the defendant appealed. A double spindle sbaper is used in shaping table legs and other parts for furniture.

From Multnomah: William N. Gatens, Judge. Department 1. This is an action to recover money. The complaint recites that on August 14, 1915, defendants induced plaintiffs to purchase from them the exclusive right to sell certain patented automobile tires in the State of Oregon, by falsely representing that the Davis-Fry Manufacturing Company was the owner of and had the exclusive right of manufacture and sale of such tires in all the territory of the United States.

From Union: John W. Knowles, Judge. In Banc. This is a suit brought to enjoin the defendants from enforcing municipal liens imposed on the property of plaintiffs to pay 75 per cent of the cost of a street improvement. The case grows out of the same improvement as that involved in Birnie v. La Grande, 78 Or. 531, 537 (153 Pac. 415).

From Gilliam: David E. Parker, Judge.' In Banc. This is an action by L. P. Davidson against John Madden to recover money.

<p>Trial — Direction of Verdict — Conflicting Evidence.</p> <p>1. Where there was evidence upon both sides of the issue, the judge properly refused to give a peremptory instruction.</p> <p>Appeal and Error — Scope of Review — Conflicting Evidence.</p> <p>2. Where there is evidence upon both sides of the issue, the court on appeal is powerless to disturb the verdict.</p>

<p>From Multiiomah: Calvin U. Gantenbein, Judge.</p> <p>Department 1.</p> <p>On the petition of the plaintiff the Circuit Court of Multnomah County issued an alternative writ of mandamus to the defendant Daly as Commissioner of Public Utilities, and Franchises of the City of Portland, to L. S. Kaiser as superintendent and to E. J. Gray as general foreman of the Water Department of that municipality. The document recites the municipal character of the city, the official tenure of Daly, and states that Kaiser as superintendent and Gray as general foreman of the Water Department are both subordinate to and under the control of Daly. It is said that the petitioner is a regularly and legally examined, appointed and classified calker and meterman and tapper “under the civil service laws, charter and rules and civil service rules and regulations of the said City of Portland, and is senior in examination, classification, appointment and employment” in all of such characters. The writ quotes Sections 106 and 107 of the Charter of Portland, the substance of which is that persons in one classification shall not be employed in another class without being regularly examined as if applying for a position for the first time, and that promotion shall be made according to seniority. It is also stated that the Board of Civil Service Commissioners of Portland established Class K, including therein “Skilled Labor Service,” making it apply to “positions requiring knowledge of a trade, craft or useful art, or requiring special manual or mechanical skill, or involving supervision of skilled or unskilled laborers.”</p> <p>The pith of the plaintiff’s grievance is included in the fifth and sixth allegations of the writ, reading thus:</p> <p>V. “That the position of Calker and the position of Meterman and Tapper are positions within the definition of said Class K, and that plaintiff and petitioner was duly examined, classified and appointed as required by the charter provisions and the rules and regulations of said civil service for the City of Portland, and that said examination of your petitioner and his appointment and classification was had and made on or about the 16th day of March, 1909.”</p> <p>VI. ' “That since the 1st day of February, 1936, the defendants and each of them have violated the said civil service charter provisions and laws and the civil service rules and regulations of said City of Portland, and that said defendants did wrongfully and unlawfully deprive the plaintiff of said employment for ten days during the month of February, and for twenty-four and one-half days during the month of March and for three days during the month of April immediately before the filing of this petition, and during all of said times the defendants did wrongfully and unlawfully employ Calkers and Metermen and Tappers who were junior in appointment and service to the said petitioner, J. W. Dryden, and further, that said defendants did violate said civil service laws, charter provisions and rules and regulations by employing laborers who had never been appointed or examined or classified in said Class K for skilled labor service and who nevertheless were so employed by the defendants to do the work that plaintiff was entitled to do, and during the period of their said wrongful and unlawful employment the plaintiff was thereby disemployed and held in idleness by the said defendants contrary to, and in violation of the said civil service charter provisions, laws, rules and regulations of the City of Portland and of the said civil service Board of Commissioners.”</p> <p>Aside from admitting that the plaintiff was appointed as .a meterman and tapper from March 16, 1909, these quoted allegations of the writ are denied by the answer.</p> <p>The plaintiff claims to have been deprived of employment for thirty-seven and one-half days to his damage in the sum of $134.37. This also was denied by the answer. The writ required the defendants immediately to restore the petitioner to his work within his classification as a calker and as a meterman and tapper, that the defendants continue to employ him thereafter according to his seniority when there was employment due to him and, lastly, that at the hearing of the writ they should pay him $134.37 in satisfaction of the damages alleged, or in the alternative show cause why they had not done so.</p> <p>The new matter in the answer contains a history of the different changes in the civil service regulations of the city and in substance alleges that the employment which the plaintiff claims infringed upon his rights was regular by reason of the rule allowing the defendants to appoint men as foremen when there was no list prescribed by the civil service commission from which selections could be made.</p> <p>It appeared in evidence and is admitted that prior to the hearing of the writ the plaintiff was re-employed in his classification and was then so in the employment of the city. It seems that during the pendency of the action the plaintiff filed a supplemental petition alleging further violations of his rights to his increased damage, but no amended writ was issued.</p> <p>The court after a hearing made the writ peremptory but with this difference, that instead of compelling the defendants to pay the damages alleged they were commanded “that they and each of them forthwith comply with all of the provisions of the charter of the City of Portland, of the ordinances of the City of Portland, and with the rules and regulations of the Civil Service Board of the City of Portland, necessary on their part to be done to enable the plaintiff to obtain the said sum of $225.75 from the City of Portland, that being the total amount of the plaintiff’s damage as asserted in the writ and the supplemental petition. The defendants appeal.</p>

<p>Fraud — Injury from Fraud.</p> <p>1. Although defendant, an attorney, indueed plaintiff, his client, to execute to him without consideration a note and mortgage on her land, whieh note and mortgage he sold, retaining the proceeds, plaintiff could not recover the amount of the note; the land having been purchased by one who agreed to pay, as part consideration therefor, the note and mortgage, and who had in fact acquired the note and mortgage, and plaintiff not having paid the note, and no demand therefor having been made on her, plaintiff might have a valid defense to any suit thereon.</p> <p>Fraud — Evidence—Sufficiency.</p> <p>2. Evidence held to show that note and mortgage in hands of bona fide purchaser were secured by defendant through fraud upon plaintiff, who was then his client, so as to warrant judgment for plaintiff against him for the amount of the note and mortgage.</p> <p>[As to what is sufficient proof in actions for fraud, see note in 65 Am. Dec. 157.]</p> <p>Costs — Discretion of Court.</p> <p>3. Under Article VII, Section 3, of the Constitution, as amended in 1911 (see Laws 1911, p. 7), authorizing modification of judgment on appeal, the court on appeal has the power to award costs on equitable principles, and to give or deny costs to either party on appeal.</p>

<p>From Umatilla: Gilbert W. Phelps, Judge.</p> <p>In Banc.</p> <p>This is an action by a real estate broker to recover his commissions alleged to have been earned in finding a purchaser for certain lands of defendant. The complaint alleges a written contract between the parties, which is set out in full, as follows:</p> <p>“Pendleton, Oregon, May 10, 1917.</p> <p>“E. T. 'Wade:</p> <p>“Until July 10, 1917, you are hereby authorized to act as my sole agent to sell my land. The NW. *4 and the South half of Section 31, and the Southwest % of Section 32, Tp. 3 N. Eange 31 E. W. M., Umatilla County, Oregon, for the sum of $45.00 per acre, and in case of a sale, you are to receive 5 per cent as commission for selling same. It is understood that the 1-3 of the crop goes with the land at above price.</p> <p>“H. Peters, Owner.”</p> <p>This is followed by these allegations:</p> <p>“That thereafter and prior to the 10th day of July, 1917, to wit, upon the 27th day of June, 1917, this plaintiff duly accepted the appointment as such agent and accepted the offer so made by the said H. Peters in writing, and so notified the said H. Peters thereof by letter as follows:</p> <p>“ ‘Pendleton, Oregon, June 27, 1917.</p> <p>“ ‘Mr. Herman Peters,</p> <p>“ ‘Pendleton, Oregon.</p> <p>“ ‘Dear Sir:</p> <p>“ ‘I have this day sold the land described as the Northwest quarter and the South half of Section 31 and the Southwest quarter of Section 32, Township 3 North, Range 31 East W. M., acting as your agent, to Mr. William Mills, of Pendleton, Oregon, at a price of $45.00 per acre, including one-third of the crop to go with the land. Mr. Mills is willing to take the land subject to the rights of the present lessees in the summer fallow, and if there is a mortgage against the property, he is willing to take the land subject to the mortgagee, providing the amount of the mortgage and interest to date of transfer is deducted from the purchase price of $45.00 per acre. Kindly arrange to furnish abstract and make deed within the next day or two, as Mr. Mills is anxious to get the transaction closed. Yours truly,</p> <p>“ ‘E. T. Wade/</p> <p>“And thereafter, and on the 28th day of June, 1917, the said defendant further ratified said offer and ratified and confirmed the acts of this plaintiff as his agent in selling and disposing of said lands, and so notified the plaintiff in writing by letter as follows:</p> <p>“ ‘Pendleton, Oregon, June 28,1917.</p> <p>“ ‘E. T. Wade,</p> <p>“ ‘Pendleton,</p> <p>“ ‘Oregon.</p> <p>“ ‘Dear Sir:</p> <p>“ ‘Mr. Herman Peters and wife executed a deed to William Mills for the Northwest quarter and the South half of Sec. 32, all in the Township 3 North, Range 31 East W. M., in Umatilla County, Oregon. Mr. Herman Peters left the deed to Mr. William Mills upon the payment of the money. Please advise Mr. Mills and have him call and get the deed at his earliest convenience.</p> <p>“ ‘Respectfully yours,</p> <p>“ ‘J. B. Perry.’</p> <p>“In duplicate.</p> <p>“That this plaintiff did-prior to the 8th day of July, 1917, sell the said lands to one William Mills, at the agreed price of $45.00 per acre. That the said defendant has heretofore in pursuance of such sale, executed and delivered a deed to the said William Mills, and has received the purchase price therefor, and the entire sale and transaction has been completed, and the defendant has fully accepted same, and has received the benefit of the services of this plaintiff in the sale of said lands, and has received the benefit of the moneys expended by this plaintiff in effecting such sale of said lands and the defendant II. Peters is indebted to this plaintiff in the sum of $1487.58 as commission upon said sale, but the defendant has refused, neglected, and failed to pay same.”</p> <p>The answer, after some admissions and denials pleaded two affirmative defenses, of which the second only is material to the present discussion. This portion of the answer pleads a former adjudication of the same issues, setting out the complaint, which, because of the questions involved, is here set out in full.</p> <p>“That on prior to, and subsequent to the 10th day of May, 1917, the defendant, H. Peters, was the owner of the Northwest quarter, and the South half of Section 31, and the Southwest quarter of Section 32 in Township 3 North, Range 31 East of the Willamette Meridian in Umatilla County, and State of Oregon.</p> <p>“That on the 10th day of May, 1917, and while the defendant was so the owner of said lands, the defendant in writing employed the plaintiff to act as his sole agent to sell the said tract of land at the agreed price of $45.00 per acre, and therein agreed that in case of sale of said lands on or before July 10,1917, he would pay to the plaintiff the sum of five (5) per cent as commission for sélling said lands.</p> <p>‘‘ That the writing and authority under and by which the defendant so authorized this plaintiff to sell said lands and so agreed to pay such commission therefor, was in words and figures as follows, to wit:</p> <p>“ ‘Pendleton, Oregon, May 10, 1917.</p> <p>“ ‘E. T. Wade:</p> <p>“ ‘Until July the 10th, 1917, you are hereby authorized to act as my sole agent to sell my land. The NW. % and the South half of Sec. 31 and the Southwest % of Section 32, Tp. 3 N. Range 31 E. W. M. in Umatilla County, Oregon, for the sum of $45.00 per acre, and in case of a sale, you are to receive 5 per cent commission for selling same. It is understood that the 1-3 of the crop goes with the land at above price.</p> <p>“ ‘H. Peters, Owner.’</p> <p>“That in pursuance of such authority, and relying upon the promises and agreements of the defendant, that the defendant would pay to the plaintiff the commission aforesaid in the event the plaintiff sold the aforesaid lands before July 10, 1917, this plaintiff did with the full knowledge and approval of defendant, devote many days’ time and incurred financial expenses in an endeavor to sell the said lands for the defendant; and did advertise the same for sale at his own cost and expense, and in so advertising and endeavoring to sell said lands did spend a sum of money, to wit: the sum of $50.00, and this plaintiff did prior to the 6th day of July, 1917, .sell the said lands to one William Mills, at the agreed price of $45.00 per acre. That the said defendant has heretofore, and in pursuance of such sale, executed and delivered a deed to the said William Mills, and has received the purchase price therefor, and the entire sale and transaction has been completed, and the defendant has fully accepted same and has received the benefit of the .services of this plaintiff in the sale of said lands, and has received the benefit of the moneys expended by this plaintiff in effecting such sale of said lands, and the defendant H. Peters is indebted to this plaintiff in the sum of $1487.58 as commission upon said sale, but the defendant has refused, neglected and failed to pay the same.”</p> <p>The answer then sets out the demurrer and the ruling of the trial court, sustaining it, and the judgment dismissing the action.</p> <p>A reply having been filed, there was a trial resulting in a verdict and judgment for plaintiff, from which defendant appeals.</p>

From Lake : L. F. Conn, Judge. Department 1. Statement by Mr. Justice Harris. This suit involves the question of whether the voters of Lake County can, in the exercise of the initiative and without an enabling act, enact a law authorizing the County Court to levy taxes for the payment of bounties on jackrabbits.

From Multnomah: George N. Davis, Judge. Department 1. On May 13,1913, the defendants were, and now are, the owners of Lots 1 and 4 in Bloch 18 of Couch’s Addition to the City of Portland and then executed a lease thereof, with a building to be erected thereon, to the plaintiff and P. J. Maher for the term of ten years; for which they received $10,000 under the terms and conditions of the lease, a copy of which is made a part of the complaint and in which it is provided: ‘ ‘…

From Multnomah.: John P. Kavanaugh, Judge. Department 1. The parties agree that the plaintiff is the owner of the storeroom and premises in question. The complaint narrates an oral agreement made on June 16, 1914, to the effect that the plaintiff was to make certain changes in the premises, fitting them for the defendant’s use, and that in pursuance thereof the alterations were made.

From Multnomah: Calvin U. Gantenbein1, Judge. Department 1. This is a suit brought by the appellant on behalf of himself and Diamond Vitrified Brick Company against the defendants for an accounting.

<p>From Multnomah: George W. Stapleton, Judge.</p> <p>Department 1.</p> <p>The plaintiff sued for and was granted a decree of divorce. The defendant was given the custody of the two children, one of whom is now about á years of age and the other is now about 2 years of age. The father was directed to pay $30 per month to the mother for the maintenance of the children. The defendant did not ask for any affirmative relief but her answer contained only a general denial and a prayer for the dismissal of the suit. The plaintiff was satisfied with the decree but the defendant appealed.</p>

From Polk: Harry H. Belt, Judge. Department 1. The defendant appealed from a judgment awarding the plaintiff damages for the loss of a calf and a horse struck by cars operated along an unfenced track. Between Black Rock and Salem, Oregon, a line of railway, commonly known as the Salem, Falls City & Western Railroad, is operated by the Southern Pacific Company.

From Lane: George F. Skipworth, Judge. Department 2. This is a suit to foreclose an alleged lien.

<p>From Lane: George F. Skipworth, Judge.</p> <p>Department 2.</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 2.</p> <p>Defendant Crayton S. Andrews was indicted, tried and convicted of the crime of larceny by bailee, and appeals.</p> <p>By the indictment, the defendant is charged with having on March 26,1915, in the county of Multnomah and State of Oregon, then and there being, and then and there being the bailee of a certain promissory note dated on the twenty-sixth day of January, A. D. 1915, signed by H. L. Price and S. Anna Price, and for the sum of seventeen hundred - twenty-seven- and fifty one-hundredths dollars ($1727.50) and made payable to the order of C. L. Look and L. M. Andrews of the value of seventeen hundred and twenty-seven and fifty one-hundredths dollars ($1727.50) and the personal property of the said C. L. Look and L. M. Andrews and as such bailee aforesaid, did then and there feloniously embezzle and unlawfully and wrongfully convert the said promissory note to his, the said Crayton S. Andrews ’ own use, and did then and there unlawfully and feloniously fail, neglect and refuse to deliver, keep or account for the said property according to the nature of his trust, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.</p>

<p>From Clatsop: James A. Eakin, Judge.-</p> <p>Department 2.</p> <p>On motion to dissolve a temporary injunction issued by tbe Supreme Court.</p>

From Clatsop: James A. Eakin, Judge. In Banc. This is a creditor’s suit in which the complaint alleges that plaintiff and defendant, Arch McLean, were formerly partners conducting a shoe store in Astoria; that plaintiff began a suit for an accounting and dissolution of the partnership, in which he prevailed, obtaining a decree, inter alia, for sums of money amounting in all, to about $3,000.

<p>Criminal Law — Indeterminate Sentence — Construction of Statute,</p> <p>1. Laws of 1917, Chapter 302, Section 17, providing that Laws of 1911, Chapter 127, Sections 6-8, 14-17, dealing with the giving of indeterminate sentences and amended by the act of 1917, shall remain in effect in certain specified cases, held to preserve the operation of original sections as to crime committed before aet of 1917 went into effect.</p> <p>Statutes — Subjects and Titles of Acts — Paroles.</p> <p>2. Under Article IV, Section 20, of the Constitution, providing that an aet shall embrace but one subject, which shall be expressed in title, Laws of 1917, Chapter 302, Section 17, is void in so far as it limits parole by court, the aet relating to executive paroles and its title making no mention of Laws of 1911, Chapter 108, of whieh sueh Section 17 would be an amendment.</p> <p>Criminal Law — Repeal of Statute by Implication.</p> <p>3. The repeal of statutes by implication is not favored.</p> <p>Homicide — Assault to Kill — Sufficiency of Evidence.</p> <p>4. Evidence held to sustain conviction for assault with intent to kill.</p> <p>Homicide — Conspiracy—Question for Jury.</p> <p>5. In a prosecution against three defendants for assault with intent to kill, evidence of conspiracy held sufficient to justify submission to jury of question of whether there was a conspiracy to kill.</p> <p>[What constitutes conspiracy and what evidence is necessary to prove it, see note in 3 Am. St. Rep. 474.]</p> <p>Homicide — Instructions—Evidence.</p> <p>6. In a prosecution against three defendants for assault with intent to kill, where there was sufficient evidence to justify submission of conspiracy to jury, the giving of instructions as to conspiracy was not error.</p> <p>Criminal Law — Conspiracy—Instruction—Province of Jury.</p> <p>7. An instruction that, where two or more persons are associated together for purpose of doing an unlawful aet, the aet of one is deemed aet of all is not objectionable, as invading province of jury by assuming existence of conspiracy.</p> <p>ON PETITION POE REHEARING.</p> <p>Criminal Law — Instructions—Acts and. Declarations of Conspirators.</p> <p>8. An instruction that, where two or more persons are associated together for purpose of doing an unlawful act, the act or declaration of one while engaged in or pursuant to the common object or design is the act or declaration of all, for which all are liable, does not permit jury to use acts and declarations of one against all defendants regardless of proof of conspiracy or whether proof of conspiracy existed at the time of the act or declaration and does not permit proof of conspiracy as to all by evidence of acts and declarations of one.</p> <p>Criminal Law — Further Instruction — Necessity for Request.</p> <p>9. Where no request was made, court may assume that instruction further than that given was not desired, where instruction, although proper, could have been deduced from a given instruction.</p>

<p>From Multnomali: Judges John P. Kavanaugh, Eobert G. Morrow, Eobert Tucker, George W. Stapleton, William N. Gatens and Calvin U. Gantenbein Sitting in Banc.</p> <p>In Banc.</p> <p>The City of Portland, a municipal corporation, instituted this suit against the Portland Eailway, Light and Power Company, a corporate concern operating a street railway in that city, and thereby seeks to nullify an order made by the defendant, the public Service Commission of Oregon, allowing the company to charge six cents for the transportation of each person over its lines in the same general direction, instead of five cents as prescribed by an ordinance enacted by the council of the plaintiff and conferring upon the company the franchise under which it operates. A general demurrer to the complaint was sustained by the circuit judges in Multnomah County sitting in banc. The city appealed.</p>

<p>Taxation — Liens for Taxes and Special Assessments — Priorities.</p> <p>1. Under Sections 3540-3735, L. O. L., as to revenue and taxation, a lien for general taxes, although subsequent in time, is prior and superior to a lien for special assessments for street improvement made by City of Eugene pursuant to Section 58 of its charter, as to priority of lien for special assessment, and owner of lien for general taxes is entitled to foreclose it without first paying the city the amount of the special assessment.</p> <p>Statutes — Construction—Adoption from Other State.</p> <p>2. It is a general rule that when one state adopts the law of another, and that law has been construed by the highest court of the latter state, such construction will be followed.</p> <p>[As to construction of adopted statutes, see note in Ann. Cas. 1917B, 651.]</p>

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 2.</p> <p>The plaintiff was engaged in fishing with a gill net for salmon on the Columbia River in August, 1915. He had a gasoline boat about 30 feet long. He was fishing on Henrici Bar, laying out his net about 200 yards from the Washington shore toward the Oregon shore. The net was about 150 fathoms in length. The current in the river trends from the Washington shore toward the Oregon shore. Having laid out his net he loosed himself from the Oregon end of the net and proceeded to the Washington end, and tied that end of the net to his boat and was engaged in cleaning the timer of his engine when he saw the steamboat “Maria,” owned by the defendant, coming down the river with a tow. The steamboat was very close to him and when he saw that it was about to run over him he gave a hallo. The steamboat continued on its course towing its barges until one of the barges struck the plaintiff’s boat, when he jumped up and caught hold of the barge which struck him; then the boat was struck by the port barge of the two barges in tow of the “Maria,” which barge was a dredge. The accident occurred about 100 yards from the dredged ship channel but nearer to the Washington than to the Oregon shore. The plaintiff, having climbed up on the barges, went to the pilot-house and asked the pilot if he could not see the lights and he answered “No.” The steamer backed with its barges until it reached the boat of the plaintiff, when the plaintiff left the steamer and its barges and got into his boat and went ashore. By the collision the boat was damaged and the line which fastened the net to the boat was broken close to the boat, and the net was lost. Plaintiff brought his suit under Section 5203 of Lord’s Oregon Laws, alleging his damages at $550 and asking for treble damages in the sum of $1,650. The jury brought in a verdict in his favor- for $450. Prom a consequent judgment defendant appeals.</p> <p>The coinplaint charged defendant with negligence in: (1) Failing to observe two lights displayed on plaintiff’s boat, to wit, a red light about ten feet above deck, and a white light about five feet above deck. (2) Navigating the “Maria” outside of the channels of the river and outside of the usual course taken by navigators. (3) Failing to avoid the collision. (4) Failing to observe the usual rules of navigation. The complaint asserts no lien on the boat.</p> <p>The answer admits the existence of the red light, but denies the white one, and denies the negligence and the amount of damages, and alleges that the collision was the result of plaintiff’s negligence.</p> <p>The reply denies the allegations of the answer.</p> <p>Appellant raises no objection to the evidence, except as follows: Before any testimony was taken in the case the defendant challenged the jurisdiction of the court, claiming that inasmuch as the case was brought under Section 5203 of the Code, it was a suit in equity to enforce a lien and not simply an action at law to recover damages, and inasmuch as the jury had been impaneled and the plaintiff was proceeding as if the complaint presented a cause of action, the court was without jurisdiction to try the cause.</p> <p>The evidence tended to show that at the time of the collision the plaintiff was drifting down the Columbia River, on the Oregon side of the channel between the states of Oregon and Washington, at a point about four miles above St. Helens, where it is the custom to fish; he had two lights upon the boat, a red light about ten feet above deck, which ,could be seen at a distance of two miles, and a white light about five feet above deck, which could be seen at a distance of three miles.</p> <p>The defendant was navigating down the river lighted as required by the rules of navigation, with a full complement of officers and men, but with no regular lookout aboard, and defendant overtook plaintiff’s boat without seeing it until within 200 feet of it. The steamboat could not be stopped in less than 200 yards.</p> <p>The river at the place where the accident occurred is considerably more than a mile in width and is navigable by boats of the draft of the “Maria” and her tow, practically from bank to bank.</p>

<p>From Linn: William Galloway,’Judge.</p> <p>Department 2.</p> <p>The plaintiff brings this suit to foreclose three certain mortgages upon the tracts of land described in the complaint executed on May 8, 1911, to secure the payment of two promissory notes aggregating $14,500. One of the mortgages was duly recorded in the records of Linn County on June 10,1911. Another was placed on record October 14, 1911, and the third was made a matter of record on October 15, 1911.</p> <p>The defendant being in default in the payment of interest, a decree was rendered foreclosing the mortgages and declaring them to be prior to the liens asserted by any of the defendants.</p> <p>Charles Leonard, B. F. Raines, John Edwards and A. W. Smith were made defendants in the suit. B. F. Baines filed an answer and cross-complaint setting forth an attachment lien upon the land involved made on March 20, 1915, and a judgment thereafter rendered and docketed in the Circuit Court for Linn County perpetuating the attachment lien. John Edwards and Charles Leonard answered asserting a judgment lien, which was docketed in that court on the fourth day of September, 1915.</p> <p>Lydia L. Meyer, Alice C. Arzt, Frank Buehring, W. T. Franklin, Frank Rost, Elizabeth B. Page, J. J. Page, H. A. Noble, Andrew Torkelson, Tena Torkelson, IV. E. Still, PI. E. Still, W. H. Page, and Eustace Spence, defendants and appellants, by their answer claim an equitable lien upon certain tracts of land, being portions of the lands described in plaintiff’s mortgages, by reason of certain contracts for the purchase of the same. These defendants allege,</p> <p>“That the purpose of the organization and existence of the Linnhaven Orchard Company was to lay out, plat, put on the market and sell certain tracts of land located in Linn County, Oregon, and more particularly described as the Linnhaven Tracts, as the same appear from the duly recorded plat thereof on file in the office of the County Recorder for Linn County, Ore gon.”</p> <p>That the Linnhaven Orchard Company made cei-tain false and fraudulent representations in regard to the several tracts of land purchased by these defendants for the purpose of inducing them to purchase the certain tracts and then allege as follows:</p> <p>“That thereafter defendant Linnhaven Orchard Company, by means of said false and fraudulent representations set forth and alleged above, sold to defendants mentioned herein, who here relying upon said representations as aforesaid made by the said defendant Linnhaven Orchard Company, did each for himself enter into a contract for the purchase of tracts in the said Linnhaven tracts for the prices herein set forth and upon which each of said defendants respectively has paid the amount herein mentioned, to wit:</p> <p>Name. Tract No. Date of Cont. Lydia L. Meyer........215 March 29, 1911 Alice 0. Arzt..........216 May 30, 1911 Frank Buehring ....... 207 Jan. 18, 1911 W. T. Franklin........ 206 Oct. 1, 1912 Frank Host ...........212 Jan. 14, 1911 Elizabeth B. Page...... 178 Dec. 14, 1910 Elizabeth B. Page...... 213 Dec. 6, 1910 H. A. Noble........... 20 Oct. 24, 1910 H. A. Noble........... 26 March 1, 1911 Andrew Torkelson 1 Tena Torkelson. j W. E. Still 1 H. E. Still 5 ' W. H. Page............ 208 May 8, 1913 Eustace Spence ........ 179 Oct. 8, 1913 22 Sept. 1, 1911 181-133-134 May 8, 1911 Pur. Price $3600 3600 3600 4200 3600 3600 3600 3600 3600 4200 9800 4200 4200 Amt. Paid. $1800.00 1800.00 1800.00 1200.00 2400.00 2400.00 1800.00 3600.00 1200.00 1200.00 5400.00 1000.00 600.00”</p> <p>That each of the contracts for the purchase and sale of said tracts was evidenced by a written contract, whereby the defendant Linnhaven Orchard Company agreed to sell to the purchaser therein named the tracts of land therein described and to execute and deliver to the purchaser, or his heirs, a good and sufficient warranty deed, accompanied by an abstract showing a perfect title in the grantor, upon the completion of the payments provided for in the contract, and to perform the other stipulations of the contract.</p> <p>That on account of the failure of the Linnhaven Orchard Company to comply with the terms of said contracts, and its inability to convey a good title as agreed, “each of said defendants has refused to make further payments upon his or her said contract and has rescinded the same. ’ ’</p> <p>That the liens of these defendants as to the particular tracts upon which said liens exist, are prior to the lien and claim of plaintiff herein, “said lien and claim of each of said defendants being as of the date of the contract of said defendants.”</p> <p>It was stipulated that the answers be deemed denied and replied to.</p> <p>The trial court decreed the purchasing defendants to have a lien subsequent in time and inferior in right to plaintiff’s mortgages, and subsequent to the lien of the judgments mentioned. These purchasing defendants appeal.</p>

<p>Sales — Breach of Warranty — Reliance and Inducement.</p> <p>1. In action for breach of warranty, plaintiff must show that the warranty was relied on and that it was an operative cause, although it need not have been the sole inducement.</p> <p>Sales — Pleading—Breach of Warranty.</p> <p>2. In aetion for breach of warranty of personal property, the purchaser must allege he relied upon the warranty and was thereby deceived.</p> <p>Sales — Rescission—Breach of Warranty — Return of Property.</p> <p>3. The purchaser of a machine may rescind the contract and return the machine within a reasonable time after delivery, if it is not as warranted.</p> <p>Sales — Contracts—Remedies of Purchaser.</p> <p>4. Generally, in a contract of sale, in the absence of language evi-' deneing an intention to make a given remedy, such as a right given to the purchaser to retain without charge the article, if not as warranted, exclusive of all others, such remedy will be deemed cumulative and permissive rather than exclusive and mandatory.</p> <p>[As to remedies of vendee for breach of warranty of quality, see note in 54 Am. Dec. 146.]</p> <p>Sales — Warranty—Remedies of Purchaser.</p> <p>5. A purchaser’s right to proceed on the warranty in his sale contract was not destroyed by the seller’s agreement that if the property sold were not as warranted the purchaser could keep it without paying for it, especially when the purchaser waived any right arising out of the promise not to charge and sued on the warranty.</p> <p>Sales — Breach of Warranty — Damages.</p> <p>6. When the seller of personal property has breached his express warranty to furnish an article of a specified kind, quality or condition, he is liable, as in the case of any othej; kind of a contract, for both general and special damages.</p> <p>Sales — Breach of Warranty — Bifeet of Acceptance.</p> <p>7. Acceptance of property sold does not of itself preclude the buyer from recovering damages for breach of warranty.</p> <p>Damages — Breach of Warranty — Deduction of Damages.</p> <p>8. In case of breach of warranty in a contract of sale, the buyer owes an,active duty to exercise ordinary care to keep the damages as low as possible.</p> <p>Sales — Breach of Warranty — Damages—Expenses.</p> <p>9. If buyer of a machine was obliged, because the machine bought did not work, to rent another machine to prevent loss to himself, he was entitled to reimbursement from the seller to the extent such expense was extra'in character and reasonable in amount.</p> <p>Sales — Breach of Warranty — Anticipated Profits.</p> <p>10. The theory of the law being to award compensation for gains prevented and losses sustained, and anticipated profits not being nonreeovorable merely because they are such, if it is reasonably certain that the breach of a contract has deprived the complaining party of a profit which was contemplated or can reasonably be presumed to have been contemplated by the parties at the time the contract was made, then the party committing the breach is liable for the loss of the profit.</p> <p>Sales — Broach of Warranty — Special Damages.</p> <p>11. In order to recover special damages for a breach of warranty, the buyeT must allege and prove that the special damages claimed by him are such as were contemplated, or may reasonably be said to have been contemplated, by the parties at the time they made the contract.</p> <p>Sales — Special Damages — Boss of Profits.</p> <p>12. If at the tinre of sale of a hoist the seller did not know that the buyer intended to use it in the sale of gravel to the public, the buyer could not recover loss of profits on account of the seller’s breaeh of warranty of the hoist, since it could not be said the parties contemplated such loss as a result of breaeh.</p> <p>ON REHEARING.</p> <p>Sales — Breach of Warranty — Anticipated Profits.</p> <p>13. In action for price of machinery to be used in loading gravel, defended on ground of breaeh of warranty, the purchaser could not recover anticipated profit on mere allegation that he could have sold the gravel, in the absence of showing that he had definitely contracted to that effect; the damages being too remote.</p> <p>Pleading — Benmrror—When Proper.</p> <p>14. Where answer, in aetion for price of machinery, disclos’ed breaeh of warranty, sought recovery for special damage for loss of profits, but failed to set out the facts entitling defendant to recover therefor, the plea was nevertheless not demurrable, being good for at least nominal damages, and the proper method of .attack was by objection to the evidence.</p> <p>Sales — Breach of Warranty — Damages.</p> <p>15. Where defendant purchased machinery for loading gravel, but because of breach of warranty of the machinery was prevented from selling the gravel or handling it, sinee he still had the gravel, his measure of damages was the difference between the contract and the market price of the gravel, constituting the profit which he lost.</p>

<p>From Multnomah: George R. Bagley, Judge.</p> <p>Department 2.</p> <p>The complaint alleges in substance that the defendant is a corporation organized under the laws of the State of Oregon, and operating an establishment at East 2d and Holgate Streets, Portland, Oregon, as a home for members of the Independent Order of Odd Fellows.</p> <p>“That on and prior to the 9th day of November, 1911, the plaintiff was employed as a laundress in said home or establishment maintained by defendant and known as the Odd Fellows Home of Oregon; that as a part of her duties, she was directed and required to hang washing upon lines fastened upon the porch of said home; that said lines were carelessly, recklessly and negligently stretched over a cement floor, the surface of which was hard, rough and irregular; that said lines were carelessly, recklessly and negligently placed by the defendant at such a high and unreasonable distance from the floor that it was necessary, in order to hang the washing upon said lines, to stand npon some portable object; that in order to enable the plaintiff to hang washing npon said lines, this defendant, by its Superintendent, on or about said 9th day of November, 1914, carelessly, recklessly and negligently directed this plaintiff to use a small portable wooden stepladder; that while plaintiff was descending said stepladder in the discharge óf her duties, her skirt caught upon the top thereof, and on account of the dangerous and defective condition of said stepladder as hereinafter set out, became fastened thereon, and caused said ladder on account of its dangerous and' defective condition as hereinafter set out, to move or shift by reason of which plaintiff was caused to and did fall from said ladder to the cement floor with great force and violence, and by reason thereof sustained injuries.</p> <p>“That the stepladder furnished the plaintiff was a defective, dangerous and unsafe contrivance to be used for the purpose for which plaintiff was directed to and did use the same, in this: That said stepladder was light, narrow and unstable, without sufficient base, the effect of which was that it might and did shift and tip easily; that said stepladder was steep and declivitous and was not equipped with a handrail or other appliance whereby plaintiff might steady herself when using and standing upon the same; that the surface of the material composing said ladder was rough and unequal; that the edges thereof were rough, jagged and projecting, that said stepladder had no rubber nubs, weights or other safety devices upon the base or feet thereof to keep the same from shifting or slipping upon said concrete floor; that said stepladder was attached to no portable platform for a base thereof; that the surfaces of the material composing said ladder might and could have been made smooth and equal; that the rough, jagged and projecting edges of said ladder might and could have been removed therefrom; that a handrail or other appliance wherewith plaintiff might steady herself in using said stepladder, rubber nubs and movable platform thereto attached could have been constructed and maintained in connection therewith for plaintiff’s use and protection; that defendant might and could have provided plaintiff with a movable platform resting upon an even, solid base, wherewith to reach the lines; that the said lines might and could have been lowered; that any and all of the foregoing precautions might and could have been taken by the defendant to protect and safeguard the life and limb of this plaintiff without interfering with the use of such ladder, platform or other device so to be used in the hanging of said washing, and without interfering with or depreciating the effect of the work in which plaintiff was engaged. That the work in which plaintiff was engaged involved a risk or danger to the plaintiff.”</p> <p>And alleges her damages in the sum of ten thousand ($10,000) dollars, and twenty-five ($25) dollars, doctor bills.</p> <p>The defendant answered denying any negligence, and for a first, further and separate answer averred, that at the time of the injury, plaintiff selected from a number of stepladders at said home, a stepladder about two or three feet in height, consisting of two steps and a top, and constructed in a substantial manner; that plaintiff was wearing a narrow skirt, commonly called a hobble skirt, so that it hindered the plaintiff from stepping up or down; that after plaintiff had safely hung all of said clothes upon the line and while attempting to descend from the stepladder, the narrowness and tightness of the skirt hobbled and hampered the plaintiff in the use of her limbs in descending the ladder, and she was thereby caused to fall from the stepladder to the porch, and that plaintiff’s injury, if any, was proximately caused by the wearing of such hobble skirt.</p> <p>For a second and further defense, defendant avers that the injuries of plaintiff, if any, were suffered by reason of the wearing of a tight, hobble skirt, and the proximate cause thereof was the contributory negligence of the plaintiff.</p> <p>For a third separate answer, defendant asserts that plaintiff realized and appreciated any danger or risk in attempting to step down from the ladder while wearing such hobble skirt, and assumed such risk.</p> <p>For a fourth defense, defendant avers that plaintiff’s' fall from the stepladder was purely accidental without any negligence or fault on the part of defendant.</p> <p>The reply put in issue all the affirmative defenses of the answer, except as alleged in plaintiff’s complaint. After the jury was impaneled to try the cause, defendant by leave of court filed a fifth separate answer and defense as follows:</p> <p>“I.</p> <p>“That during all the time hereinafter mentioned, the defendant has been a Benevolent corporation, organized and existing under and by virtue of the laws of the State of Oregon, with its principal place of business at Portland, Oregon, and during all the times hereinafter mentioned, has been conducting and operating a home for the old men and women belonging to the Independent Order of Odd Fellows and for the orphan children of the members of said order, and for the benefit of the members of said order, and said home is known and designated as the Odd Fellows Home of Oregon.</p> <p>“II.</p> <p>“That said Odd Fellows Home is owned, operated and conducted without profit of any kind whatsoever, and is maintained by assessment made upon the lodges and membership of the State of Oregon and that the home and grounds above alleged and all of the money and property whatsoever is held by the Odd Fellows Home in trust and not otherwise, for the maintenance, support and care of the old men and women of the order and for the maintenance, support, care and education of the orphan children of members of the order and for the purpose of caring for said old members and said children in sickness and furnishing them with medical attention, nurse and hospital services without any compensation therefor, and solely in a benevolent way and manner and without any profit whatsoever and that in carrying on said work and purposes, said Odd Fellows Home is a Benevolent and eleemosynary corporation and is trustee only and no more, for all of the property and all of its conducts and acts for the membership of said order in general in the state, and that therefore said Odd Fellows Home, as above alleged, is not liable in damages herein, and was such corporation at all of the times hereinbefore alleged.”</p> <p>The fifth further and separate defense being admitted by the plaintiff, no reply thereto was made. Whereupon the court rendered judgment for the defendant upon the facts admitted by the pleadings, as for want of a reply to the answer. The plaintiff appeals from such judgment.</p>

<p>Statutes — Amendment—Setting Forth Act Amended — Budget Law.</p> <p>1. Laws of 1915, page 297, merely declaring all districts, with certain exceptions, subject to Laws of 1913, page 458, the budget law provided for counties contravenes Article IV, Section 22, of the Constitution, inhibiting revising of amendment of an act by mere reference to its title, and requiring the act revised or section amended to be set forth in full.</p>

Prom Washington: George R. Bagley, Judge. Department 2. Zwald Brothers, as partners, conducted a dairy on the Westhoff farm in Washington County. On November 12,1912, they purchased forty milk cows from Henry Anderegg and Henry Naegeli, for which they executed their joint promissory note for $4,000, secured by a chattel mortgage upon the cows, two horses and harness, and the lease of the land used by them in their business.

From Coos: John S. Coke, Judge. Department 2. This is an action to recover damages for the appropriation of certain lots in the City of Marshfield and the destruction of the trees and shrubbery thereon. The real question at the trial] was as to the amount of damages which plaintiff sustained. The jury returned a verdict for $570, for which, with costs, judgment was entered against the defendants.

From Lane: George F. Skipworth, Judge. Department 2. This is an action to recover upon a policy of insurance upon the life of William H. Davidson.

<p>Statutes, Subjects and Titles.</p> <p>1. Section 5126, L. O. L., as to persons having the right to water privilege not being required to construct or keep in repair any bridge across any mill-race, etc., being a part of an act of territorial legislature entitled “An act fixing the rate of toll for grinding,” is of no force, in view of Enabling Act, Section 6, as to every law embracing but one subject, expressed in its title.</p> <p>[As to when the title of a statute embraces but one subject and what may be included thereunder, see note in 79 Am. St. Rep. 456.]</p> <p>Constitutional Law — Police Power of State.</p> <p>2. The use of all property is subject to the general police power of the state, to be exereised either directly or through subordinate agencies to whom the state may intrust the exercise of that prerogative.</p> <p>Municipal Corporations — Police Power — Control of Property.</p> <p>3. Act of 1893 (Section 3229, L. O. L.), conferred upon cities and towns incorporated under it general poliee power to regulate the use of private property, and a mill constructed without license before incorporation of town, in what was then a county road, and which is now maintained along and across a street, is no exception.</p> <p>Highways — Encroachment—Mill-race.</p> <p>4. From statutes requiring the owner to bridge mill-races where they cross a county road there may be inferred authority for passing laterally over such roads, but not for going along them longitudinally.</p> <p>Highways — “Nuisance Per Se” — Mill-race.</p> <p>5. The admitted fact that a mill-raee occupies a portion of a highway longitudinally makes it a nuisance per se, at eommon law, in the absence of any authority for its being there.</p> <p>Statutes — Amendment by Reference to Title Only.</p> <p>6. Statute of February 21, 1913 (Laws 1913, p. 136), granting to the town of Gaston exclusive control over county roads within its corporate limits, cannot, in so far as it attempts to amend the general law, be considered, since it does not set out the part of the statute as amended, as required by Article IV, Section 22, of the Constitution.</p> <p>Municipal Corporations — Control of Streets — County Roads.</p> <p>7. Statute of February 21, 1913 (Laws 1913, p. 136), amounted to an offer on the part of the state to surrender to the town of Gaston the control over county roads within its corporate limits and initiative charter (April 14, 1914), by whieh the town assumed control over all public parks, etc., reasonably included what was formerly the county road in question, and operated as an acceptance of the offer.</p> <p>Municipal Corporations — Control of Streets — County Roads.</p> <p>8. A mill-race constructed without license and before incorporation of the town of Gaston in what was then a county road, whether a nuisance or not, is subject to reasonable police regulation, after inclusion within corporate limits of said town.</p> <p>Injunction — Violation of Ordinance — Remedy at Law.</p> <p>9. Defendant, maintaining a mill-raee within corporate limits of town of Gaston, contrary to its police regulations, being a nonresident, so that the legal remedy provided by ordinances is insufficient to work out obedience, relief will be granted in equity.</p> <p>Municipal Corporations — Control of Streets.</p> <p>10. Requiring defendant to keep mill-raee maintained along a street of plaintiff, to be covered with planks sufficient for ordinary travel, is a reasonable exercise of the police power committed to plaintiff by statute of 1893 (Laws 1893, p. 119), and reasserted in initiative charter (April 14, 1914), and is properly classified as local, special and municipal legislation, under Article IV, Section la, of the Constitution, reserving initiative power to voters.</p> <p>Municipal Corporations — Control of Streets — Scope and Authority.</p> <p>11. The existence of an open 'mill-race in the principal thoroughfare of a town primarily affeets the local situation, and is within scope of authority of eities and towns, under Article XI, Section 2, of the Constitution, empowering the legal voters to enaet and amend their charters.</p>

From Multnomah: George N. Davis, Judge. Department 2. On February 9, 1914, plaintiff obtained a decree of divorce from the defendant, wherein she was awarded the custody of two infant sons, and certain money and property as alimony, but the decree is silent as to any award for the nurture and education of the children. The custody of the third child, a daughter, now about twelve years of age, was awarded to the defendant.

<p>Prom Clatsop: Jambs A. Eakin, Judge.</p> <p>On motion to dismiss appeal.</p>

<p>Deeds — Understanding of Grantor — Sufficiency of Evidence.</p> <p>1. In suit by a daughter to cancel her mother’s deed to a son on the ground of undue influence, evidence held to show that the mother understood the purport of her deed when she executed it, and that she realized thereafter that her son had title to the property.</p> <p>Appeal and Error — Review—Findings.</p> <p>2. Some weight must be given to the fact that the lower court which saw the witnesses determined the issues in favor of defendants.</p> <p>Deeds — Trust Relationship — Burden of Proof.</p> <p>3. If a fiduciary relation existed between mother and son, in suit by a daughter to cancel the mother’s deed to the son the burden of proof devolved on the son to sustain the transaction.</p> <p>[As to presumption and burden of proof of undue influence in conveyance by parent and child, see note in Ann. Cas. 1915D, 711.]</p> <p>Trusts — Conveyance to Trustee — Independent Advice.</p> <p>4. The principle that a deed from eestui que trust to trustee will be upheld only when the former has acted under independent advice, applies only to eases whereby ill health, mental infirmity, immaturity or otherwise, the party whose deed is attached is one not likely to aet wisely without disinterested advice, for a party of normal mentality is entitled to dispose of his own as he sees fit.</p> <p>Deeds — Trust Relationship — Evidence.</p> <p>5. In a daughter’s suit to cancel a deed executed by her mother to a son on the ground of undue influence and trust relationship, that the mother executed a power of attorney to the son was a circumstance to be given weight in determining whether a trust relation existed between them, but the circumstance does not, of itself, establish a fiduciary relation.</p> <p>Deeds — Conveyance to Trustee — Independent Advice — Burden of Proof.</p> <p>6. Where a mother constituted her son her attorney in fact by giving him power of attorney, but the only use he made of such power was the ministerial act of withdrawing a deed to the mother’s land deposited in. escrow, the power of attorney did not create such relation of trust between the mother and son that in a daughter’s suit against him to cancel his mother’s deed to him, executed after revocation of the power, he had the burden to prove his mother acted under independent advice.</p> <p>Deeds — Conveyance to Trustee — Independent Advice — Termination of Relation.</p> <p>7. If son’s power of attorney from his mother created a relationship of trust between them, laying upon him the burden, in his sister’s suit to cancel his mother’s deed to him, to uphold the good faith of the transaction, the termination of the relation by revocation of the power of attorney destroyed the son’s disqualification to deal with his mother unadvised.</p> <p>Deeds — “Fiduciary Relation” — Absence of Trust or Agency.</p> <p>8. Fiduciary relationship may exist in the absence of a trust or ageney, being found, with its accompanying burdens and disqualifications, wherever there is confidence reposed on one side and resulting superiority and influence on the other.</p> <p>Deeds — Fiduciary Relationship — Parent and Child.</p> <p>9. The relation of parent and child, accompanied by the affeetion and companionship incident thereto, does not make the child a fiduciary within the rule casting the burden upon him to justify a deed in his favor from his parent.</p> <p>Deeds — Undue Influence — Burden of Proof.</p> <p>10. In a daughter’s suit to cancel her mother’s deed to a son, where the daughter failed to show the existence of a fiduciary relationship between mother and son, the burden of proof was on her to establish the undue influence and other matters relied on to set aside the deed.</p> <p>Deeds — Undue Influence — Execution on Request.</p> <p>11. The execution of a deed at the suggestion or request of the grantee, the grantor, his mother, reserving a life estate and revenues adequate to her necessities, did not constitute undue influence nor vitiate the conveyance.</p> <p>Deeds — Deed from Parent to Child — Presumption of Invalidity.</p> <p>12. No presumption of invalidity attaches to a deed from mother to son wherein the mother reserves a life estate and revenues adequate to her necessities, though executed without monetary consideration at the suggestion or request of the son; the mother being mentally competent and no trust relation existing.</p> <p>ON REHEARING.</p> <p>Deeds — Undue Influence — Fiduciary Relation — Termination.</p> <p>13. On the issue of undue influence in procurement of deed from mother to son, a power of attorney from her to him, to enable him to obtain a paper put by her in escrow, and used only for that purpose, was without value as conclusive evidence of trust relation between them, where it was revoked before execution of deed.</p> <p>Deeds — Fiduciary Delation — Independent Advice.</p> <p>14. That the grantor has confidence in and trusts the grantee does not make independent advice a sine qua non to validity of deed of gift.</p> <p>Deeds — Deed to Son — Presumption of Validity.</p> <p>15. Presumptions, under Section 799, subdivisions 1, 19, L. O. L., of innocence of wrong and fairness and regularity of private transactions, held to require finding against undue influence in deed to son, with reservation of life estate, only confidence and opportunity appearing; other children being presumptively dead or near death, and testimony of fairness not being met.</p>

From Multnomah: Calvin H. G-antenbein, Judge. Department 1. This is an action for damages for fraudulent misrepresentations.

<p>Specific Performance — Parol Agreement — Interest in Xiand.</p> <p>1. In order that a parol agreement, creating an interest in real property, may be enforced, it must be clear, definite, just, reasonable and mutual in all its parts.</p> <p>[As to certainty in contract a& requisite for specific performance, see note in 26 Am. Dec. 661. As to mutuality of contract as requisite for specific performance, see note in 7 Am. Dec. 492.]</p> <p>Specific Performance — Confidential Relationship of Parties — Presumption of Invalidity.</p> <p>2. Where plaintiff assisted sixty-nine year old widow in the management of her property, secured tenants, collected rents and advised her in business matters, the relationship was confidential, and latter’s parol agreement to convey land to former in suit for specific performance is presumed to be invalid.</p> <p>Specific Performance — Degree of Proof — Presumption of Invalidity.</p> <p>3. In action for specific performance of parol agreement to convey land, where plaintiff had for many years assisted promisor in the management of her property and advised her concerning her business affairs, the presumption of invalidity of the agreement raised by confidential relationship of the parties can be overcome only by clear proof of good faith of former and full knowledge and independent consent of latter.</p> <p>Principal and Agent — Principal’s Agreement to Convey to Agent— Independent Advice of Third Person.</p> <p>4. Independent advice of a third person is not essential to support principal’s agreement to convey land to his agent for a fair consideration.</p> <p>Specific Performance — Sufficiency • of Evidence — Parol Agreement to Convey.</p> <p>5. In action for specific performance of parol agreement to convey bungalow, evidence held to show-that owner agreed to convey bungalow to plaintiffs in consideration of their being married and boarding and caring for her the remainder of her life.</p> <p>Descent and Distribution — Liability of Heir for Ancestor’s Debt.</p> <p>6. In action for specific performance of agreement to convey bungalow, brought after promisor’s death, plaintiffs cannot recover judgment for unpaid installments on bungalow against promisor’s heir -under Section 491, L. O. L., making heir liable for ancestor’s debts to extent of real estate inherited, where it does not appear that personal assets of the estate were insufficient to pay such debt under Section 492.</p>

<p>From Wasco: William L. Bradshaw, Judge.</p> <p>Department 2.</p> <p>This is a suit for divorce. The amended complaint alleges that the plaintiff and the defendant were intermarried at The Dalles, Oregon, in February, 1889; that there has been no issue of their marriage and:</p> <p>1 ‘ That about ten years ago the defendant complained that her rights in the property of the plaintiff were not properly protected, and demanded that the plaintiff deed to the defendant one half of all his property, the defendant claiming that by so doing she would become the owner of all the property at the plaintiff’s death, which she claimed and demanded as her right, and that the (adopted) daughter of the plaintiff and defendant has no right to any portion of the plaintiff’s property, either in his lifetime or at his death.</p> <p>“That the defendant became very insistent upon her demands for the plaintiff’s property, and in a violent and threatening manner asserted to the plaintiff that he never could get a divorce from her, but she could get a divorce from him, and that she would leave him and get a divorce from him unless he conveyed his property. to her, and at other times she would threaten not to leave him, but to stay with him for the purpose of harassing, vexing, annoying and persecuting him, and stating that she would make life a burden to him, and that she would break him up in btisiness and bring him to want, and at other times she would threaten to commit suicide if her demands were not granted by the plaintiff, and the defendant promised that if the plaintiff would convey his property to her that she would live with him and be entirely contented and would treat the plaintiff right and endeavor to make him happy.</p> <p>“That by the threats of the defendant, who is a violent woman, and being intimidated by her threats and relying upon her promises of better treatment in case her demands should be granted, the plaintiff for these reasons and.not otherwise yielded to the demands of the defendant and conveyed to her Block 9 in the town of Mosier, comprising about four acres, and which would constitute about thirty-two town lots if subdivided, and which is of the value of-. ’ ’</p> <p>For such reasons the plaintiff thereafter caused to be conveyed to the defendant an undivided one-half interest in ninety-three acres of land in Wasco County, for which it is alleged that he paid the entire consideration.</p> <p>The amended complaint then alleges that the defendant was not satisfied, but ever since</p> <p>“has persistently and continuously demanded that the plaintiff deed to her an undivided one-half interest in all of his property of every kind, and frequently when the plaintiff would not grant her requests and demands the defendant has cursed and abused the plaintiff and called him vile, profane and opprobrious names, and has threatened to commit suicide if plaintiff did not grant her requests and demands and convey to her an undivided one half in and to all of the plaintiff’s property. ’ ’</p> <p>It is alleged that such demands and threats were frequent, that defendant would not live with plaintiff unless he granted them, and:</p> <p>“In the last ten years the defendant has lived separate and apart from the plaintiff by far the greater portion of the time, and has lived in Portland, Oregon, and at the beaches and in the State of California and has only come to the plaintiff’s home and lived with him at such times as were convenient for the defendant, and at such times that she wished to press her demands above mentioned, and to torment, harass, vex and annoy the plaintiff in the manner hereinbefore mentioned. * *</p> <p>“That the defendant has without cause or provocation on the part of the plaintiff repeatedly and at different times which the plaintiff cannot now mention, called the plaintiff vile and opprobrious names and threatened to' do him bodily harm and threatened to kill him, and has struck the plaintiff, all without cause and for the purpose of injuring, vexing, harassing and annoying the plaintiff.”</p> <p>It is also alleged that:</p> <p>“The plaintiff has been intimidated by the defendant until he is afraid to remain or live with the defendant, or be in her presence for fear of physical injury at her hands, and he has been rendered sick and nervous and has been harassed, humiliated, vexed and annoyed beyond description and measure, and said acts' and threats and conduct on the part of the defendant constitute cruel and inhuman treatment of the plaintiff by the defendant and personal indignities toward him, all of which render the plaintiff’s life with the defendant unbearable and burdensome.”</p> <p>The foregoing is the substance of the complaint, to which the defendant filed an answer in which she denied any and all of the material allegations and pleaded an affirmative defense, setting out a list of real and personal property owned by the plaintiff and its probable and rental value. She alleges that for a long time she had been and now is in ill health and unable to perform any work or labor; that all of the property was acquired by the joint efforts and industry of the plaintiff and herself; that at the time of their marriage the plaintiff was twenty years of age and she was an inexperienced child of fourteen years; she charges plaintiff with cruel and inhuman treatment and failure and neglect to provide for her properly, and specifies other grounds which are unnecessary to this opinion. The lower court rendered a decree for the plaintiff, from which the defendant appeals.</p> <p>For respondent there was a brief and an oral argument by Mr. William U. Wilson.</p>

From Lane: George F. Skepworth, Judge. This action is brought under the Federal Employers’ Liability Act by the plaintiff, as administrator of the estate of William J. Framhein, deceased, against the defendant, to recover damages for his death while in its employ. Framhein was a telegraph inspector and lineman and it was his duty to keep the telegraph lines of the defendant in repair along its railroad tracks between Reedsport and Eugene in this state.

<p>Vendor and Purchaser — Remedies of Purchaser — Lien for Purchase Money — Priorities.</p> <p>1. The purchaser’s equitable lien against the land for the amount of the price paid does not attach until the time of payment, and in an action to determine priorities, the failure of the purchaser to allege or prove date of payment bars an investigation of his claim of priority. [As to lien of vendee, see note in 127 Am. St. Rep. 873.]</p>

From Multnomah: Robert G. Morrow, Judge. Department 1. The plaintiff sues to recover damages for the breach by the United States Cashier Company and Thomas Bilyeu of a contract which the plaintiff alleges bound them to pay him a commission for finding a purchaser for certain British patent rights of which they claimed to be the owners.

<p>Principal and Agent — Ratification—Effect.-</p> <p>1. Wben tbe principal, with knowledge of all faets, ratifies a transaction unauthorized when performed, he adopts the aet as of the time of its performance, as mueh as if he had done it himself.</p> <p>[As to effect of ratification by principal of agent’s act, see note in 5 Am. St. Rep. 109.]</p> <p>Principal and Agent — Pleading—Proof-Act of Agent.</p> <p>2. Under an allegation that an act was done by defendant, plaintiff can show the aet was done by defendant’s agent, or that it was afterward ratified.</p> <p>Principal and Agent — Action Against Agent — Pleading.</p> <p>3. Plaintiff, seeking to bold a principal on account of his agent’s act, later ratified, should allege the aet directly as defendant’s, and not state that the business was done by an agent, and later ratified by defendant.</p> <p>Principal and Agent — Action for Fee — Question for Court.</p> <p>4. In an attorney’s action for a fee, he eould show that defendant’s general agent employed him in her behalf, and it was for the court to decide, from the facts shown, whether the act was within the agent’s authority.</p> <p>Principal and Agent — Existence or Extent of Agency — Question of Law and Fact.</p> <p>5. If there is a dispute about the extent of an agency, a mixed question of law and fact is presented, which should be submitted to the jury.</p> <p>Principal and Agent — Existence or Extent of Agency — Question of Law and Fact.</p> <p>6. If there is a dispute about the existence of an agency, a mixed question of law and fact is presented, which should be submitted to the jury.</p>

<p>Drains-1 — Conclusiveness of Determination — Benefits.</p> <p>1. Where court, upon land owner’s objection to inclusion of Ms land in proposed drainage district, decided such land would be benefited by the ditch and subsequently upon objection to levy of assessment and to amount thereof made similar finding, owner cannot raise same question on district’s action to foreclose the lien of assessment.</p> <p>Drains — Purpose of Drainage — Public Use — Health.</p> <p>2. Drainage for benefit of the public health is for a public use.</p> <p>Drains — Purpose—Public Benefit — Agriculture—Swamp-land.</p> <p>3. The reclamation of large tracts of swampy lands for agricultural purposes is generally considered to be for the public benefit. .</p> <p>Eminent Domain — Public Uses — Drainage District.</p> <p>4. Laws of 1889, page 25 (Section 6126, L. O. L.), as amended by Laws of 1911, page 424, providing for organization of drainage district upon petition of 25 per cent of owners desiring to drain land “for the public benefit for sanitary purposes,” and Section 6128, L. O. L., as amended by Laws of 1911, page 424, requiring court to find that “district is of public utility and importance,” provide for drainage for public uses and do not authorize talcing of private property for private purposes.</p> <p>[As to drainage districts, see note in Ann. Cas. 1915A, 9.]</p> <p>Drains — Drainage District — Statute—Petition.</p> <p>5. Section 6126, L. 0. L., as amended by Laws of 1911, page 424, providing for organization of drainage district for public benefit and requiring petition to state “necessity for such drainage,” held to require petition to allege that district is to be for a public purpose, and hence not unconstitutional.</p> <p>Drains — Drainage District — Statute—Petition—Public Purposes.</p> <p>6. A statute providing for organization of drainage districts íb not necessarily unconstitutional because of failure to expressly require petition to allege the proposed district to be a public necessity.</p> <p>Constitutional Law — Due Process — Special Assessment — Notice.</p> <p>7. Though special assessment cannot be imposed upon property unless notice be given and owner afforded opportunity to be heard at some stage of the proceedings, personal notice is not required, and notice by publication or by posting is sufficient.</p> <p>Drains — Drainage Districts — Statutes—Notice.</p> <p>8. Section 6126, L. O. L., as amended by Laws of 1911, page 424, relating to formation of drainage districts and providing for published, posted and personal notice to owners of land within proposed district, is valid though provision as to personal service is too uncertain to be enforceable, provision as to notiee by publication and posting being sufficient, though no provision as to notice would have been necessary to statute’s validity.</p> <p>Statutes — Validity—Unconstitutionality of Part.</p> <p>9. An entire statute is not invalid because one or more of the details or minor provisions or incidental clauses are unconstitutional, where invalid part may be eliminated without materially affecting the general purpose.</p> <p>Statutes — Partial Invalidity.</p> <p>10. Section 6136, L. O. L., as amended by Laws of 1911, page 424, providing for notice of assessment for drainage benefits by posting on bulletin in the courthouse and in such other manner as County Court may prescribe, held not invalid even though provision as to posting be declared invalid because of uncertainty; any notice by posting or publication being sufficient to satisfy “due process of law” requirement, and elimination of invalid part leaving valid remainder which gives court power to prescribe method of notice.</p> <p>Constitutional Law — Drains—Delegation of Legislative Power to Judiciary.</p> <p>11. Section 6136, L. O. L., as amended by Laws of 1911, page 424, giving court right to prescribe notice to be given land owners in drainage district of assessment for drainage benefits, held not a delegation of legislative power to the judiciary.</p> <p>Drains — Drainage Districts — Organization—Notice.</p> <p>12. A drainage district cannot be legally organized unless notice be given as prescribed by Section 6126, L. O. L., as amended by Laws of 1911, page 424.</p> <p>Drains — Drainage Districts — Assessment—Notice.</p> <p>13. An assessment for drainage benefits is not valid unless notice is given as provided by Section 6136, L. O. L., as amended by Laws of 1911, page 424.</p> <p>Drains — Assessment—Action—Evidence—Notice.</p> <p>14. In aetion to foreclose lien of assessment for drainage benefits where fact of service of notice of the organization of the district actually existed, it was competent in Circuit Court to supplement the proof of service submitted to the County Court, who had jurisdiction over organization of the district, with the parol testimony of deputy sheriff, who claims to have served notice.</p> <p>Drains — Statutes—Assessment—Enforcing Payment. •</p> <p>15. Laws of 1915, page 540, repealing by implication Sections 6126-6145, L. O. L., relating to drainage districis, does not prevent a district from enforcing payment of a delinquent assessment, where all assessment proceedings were completed before the act of 1915 became effective; the assessment under Section 6136, L. O. L., as amended by Laws of 1911, page 424, having become lien on land, and act of 1915, although without saving clause, operating prospectively and not retrospectively.</p> <p>Statutes — Construction—Change of Statute.</p> <p>16. A change of statute will ordinarily be construed, if practicable, as having a prospective operation only.</p> <p>Constitutional Law — Bancroft Bonding Act — Contract Rights.</p> <p>17. Where owners of land assessed for drainage benefits sign applications for right to pay in annual installments under Bancroft Bonding Act, they enter into contract which cannot be impaired by subsequent legislation.</p> <p>Statutes — Repeal—Effect on Bending Litigation.</p> <p>18. The general rule is that the repeal of a statute without any reservation takes away all remedies given by repealed statute and defeats all actions pending under it at the time of its repeal; but, where repealing act relates to matters of procedure and substitutes new forms in" place of old pending actions and proceedings already taken are not affected._</p>

From Coos: George F. Skipworth, Judge. Department 2. This is an appeal by defendants from a decree of the trial court enjoining the officials of the defendant city from improving and grading approximately 609.8 feet of First Street North, formerly known as Pine Street.

<p>From Multnomab: Robert Tucker, Judge.</p> <p>In Banc.</p> <p>This is an action of negligence against the City of Portland brought by Victoria I. Colby for personal injuries alleged to have been received on the sixth day of May, 1915, as the result of a fall on a cross-walk at the intersection of East Salmon and East Thirty-second Streets in the City of Portland. The case was tried before the court and a jury, resulting in a verdict for the plaintiff in the sum of $1,578.50. The facts involved were before this court in the case of Colby v. City of Portland, 80 Or. 359 (166 Pac. 537), decided July 3, 1917. In that case, the trial of the lower court resulted in an alleged order of non-suit as against the City of Portland, and a judgment against the other defendants who were officers of the municipality. Upon the reversal by this court of the judgment then obtained by the plaintiff against the city officers, this action was brought against the City of Portland alone.</p>

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement hy Mr. Chief Justice McBride. This is an action to recover rent claimed to be due, according to the terms of a certain lease of Lots No. 1 and 2 Block 315, in the City of Portland, Multnomah County, Oregon, which lease was executed on March 8, 1909, and was to continue in force for a period of twenty years, from March 1st of that year.

<p>Original proceeding in Supreme Court.</p> <p>In Banc.</p> <p>Claiming to be unlawfully imprisoned by the sheriff of Clatsop County, the petitioner obtained a writ of habeas corpus from this court, commanding the officer to state the cause of the detention, in pursuance of which the latter made return to the effect that on September 4, 1918, in Clatsop County, Oregon, the petitioner was accused before the circuit judge of that county, sitting as a magistrate, of the crime of unlawful gaming, by an information, a copy of which is annexed to the petition herein and made a part of the return by reference. It is further stated by the sheriff, in substance, that at said hearing, on consideration of the proofs, the magistrate found that the petitioner here had committed a crime designated as “indecent and immoral acts not otherwise made punishable, ’ ’ ordered that he be held to answer therefor, fixing the bail in the sum of $100, and thereupon issued to the sheriff a commitment in the form prescribed by Section 1797, L. O. L., which is set out in the return and will be more fully noticed hereafter. It is also stated that the defendant has not given bail. The matter was heard before us on demurrer to this return.</p>

From Multnomah: Bobert G. Morrow, Judge. Department 2. The plaintiffs commenced this action against the defendant corporation to recover $1,049.16, the alleged value of a carload of lumber. The defendant admits the purchase and the value, and as a defense pleads six separate counterclaims amounting to $821.15.

From Multnomah: Henry E. McGinn, Judge. Department 1. Originally the plaintiffs began an attachment action against the defendant, in the Circuit Court of Multnomah County, and levied the writ upon property. The defendant gave bond to release the attachment with the Illinois Surety Company on his undertaking. Afterwards, without the consent of the surety, judgment was rendered in that court against the defendant for the amount named in the complaint.

<p>Bailment — Lien for Work — Possession.</p> <p>1. It was competent for the legislature, by enactment of Section 7497 et seq., L. O. L., as amended by Laws of 1911, page 213, as to liens upon chattels, to provide for a lien notwithstanding the claimants had not possession of the property, sinee the lien rests upon the doing of labor or furnishing material.</p> <p>Bailment — Lien—Loss—Lapse of Time.</p> <p>2. Claimant of lien on chattel held to have performed work in various months under a single contract, so as to be entitled to a lien for the entire amount of work done, notwithstanding the lapse between dates on which the work was done.</p> <p>Bailment — Lien—notice of Claim.</p> <p>3. Where defendants, owning donkey-engine, desired its occasional repair during logging season, and authorized plaintiff to make the repairs on the job, so as to keep the engine running, plaintiff had a qualified possession, which was terminated by the mutual agreement to abrogate the contract, so that notice within 60 days after the abrogation of the contract was in time, under Section 7497 et seq., L. O. L., as amended by Laws of 1911, page 213.</p> <p>[As to lien on automobile for repairs or storage, see note in Ann. Cas. 1916A, 630.]</p>

From Multnomah: Robert G. Morrow, Judge. Department 2. This is a proceeding in mandamus to compel the civil service board of the City of Portland to place the name of plaintiff at the head of the eligible list on the civil service register, and to certify his name to George L. Baker, a commissioner of said city and commissioner of public affairs thereof, and to require such commissioner to appoint plaintiff to the position of director of the Public Employment Bureau of said…

<p>Work and Labor — Quantum Meruit — Issues—Rescission.</p> <p>1. Contention that complaint, based on quantum meruit and showing there was written contract, is fatally defective for absence of allegation of rescission, is untenable, where answer pleads abandonment of contract by plaintiffs, and reply admits same and justifids it; allegations sufficiently raising issue of rescission.</p> <p>Appeal and Error — Harmless Error — Evidence.</p> <p>2. In action for cutting cordwood, error in admitting testimony as to reasonable value of plaintiffs’ services was harmless where court evidently disregarded it, and properly adopted contract price as reasonable value of work.</p> <p>Appeal and Error — Review—Credibility of Witnesses.</p> <p>3. Supreme Court cannot go into question of credibility of witnesses.</p> <p>Appeal and Error — Review—Weight of Evidence.</p> <p>4. The Supreme Court cannot go into the question of the weight of the evidence.</p> <p>Work and Labor — Breach of Contract — Quantum Meruit.</p> <p>5. When contract for services provides for payments at specified intervals, and installments are not paid when due, aggrieved parties may abandon work and recover on quantum meruit.</p> <p>Election of Remedies — Necessity of Pleading.</p> <p>6. Prior election of inconsistent remedy by plaintiff being a bar, and therefore affirmative defense, to be available to defendants, it must be pleaded, and cannot be predicated on original complaint in evidence declaring for breach of contract, which plaintiffs amended to recover on quantum meruit.</p> <p>Work and Labor — Prior Breach by Plaintiffs — Effect.</p> <p>7. Where contract for cutting cordwood provided plaintiffs should have 1,200 cords cut by March 1st, and they failed to comply, but defendants did not object, in plaintiffs’ action for services after defendants’ subsequent breach, plaintiffs can recover.</p> <p>Costs — Services of Interpreter.</p> <p>8. Section 855," L. O. L., requires intervention of interpreter in case where witness does not understand English language. An item in judgment for services of interpreter under such circumstances was proper as a necessary disbursement.</p> <p>[As to the proper method of examining a witness through an interpreter, see note in Ann. Cas. 1912B, 726.]</p>

From Multnomah: Henry E. McGinn, Judge. Department 2. This is a suit to set aside a sheriff’s deed, and permit the judgment debtors to redeem. It appears from the pleadings and the evidence that on November 1, 1911, the plaintiff J. H. Shepperd was indebted to the defendant Holmes, and to secure the payment of the debt executed three promissory notes, in which his father, the plaintiff George Shepperd joined.

<p>From Linn: George G. Bingham, Judge.</p> <p>Department 1.</p> <p>This is a suit whereby the plaintiff seeks to enforce against the other heirs and the administrator of his deceased father a parol agreement said to have been made by the latter to convey to the plaintiff fifty acres of land. The substance of his complaint is as follows: In 1901 the father purchased a 250-acre farm in Linn County, upon which he paid all the purchase price but $1,000, and agreed with the plaintiff at the time that if the latter would remain upon the farm and contribute his labor in its necessary management and cultivation until it was fully paid for, he would convey to the plaintiff fifty acres thereof as his compensation. The plaintiff claims to have fully performed the contract on his part by working on the farm until the remainder of the purchase price was fully discharged and in pursuance of their- stipulation his father set off to him fifty acres out of the north and west part of the large tract, and he went into possession thereof under the contract, built a house on his land thus designated and made other improvements and lived there for a time. He then took employment elsewhere, agreeing with his father that the latter should have the use of the land in consideration of his paying the taxes thereon until the son should want possession of it again. A few years later he returned, and at his father’s request made an exchange with him, giving up the first fifty acres and taking in lieu thereof a like area from the north end of the original 250-acre tract. With his parent’s consent and approval he moved the house mentioned from the first tract to the new one, built on the latter a new bam and other improvements of considerable value and remained in possession, living thereon with his family continuously thereafter.</p> <p>His father died suddenly on June 10, 1916, without having made the deed, although the son had asked him for a conveyance. After his father’s death the plaintiff demanded a deed from his brother and sisters, but they refused to execute one, and hence this suit.</p> <p>The relationship of the parties, the death of the father, the appointment of the elder son, J. L. Hayes, as administrator, are all admitted, but the remainder of the complaint is denied. The defendants allege that there was no contract made between the plaintiff and his father. They state that he was anxious to have his children living near him and that in pursuance of that desire he allowed the plaintiff to go upon the piece of land mentioned, requiring him to pay a small rent therefor, that he followed the same course with his other son and his unmarried daughter, Huldah Hayes, and that the only occupancy that either of them had of any of the land was that of a mere tenant at a nominal rent.</p> <p>This in turn is denied by the reply. The Circuit Court heard the ease and entered a decree according to the prayer of the complaint. The defendants appeal.</p>

From Yamhill: Harry H. Belt, Judge. Department 2. Joseph P. Turnidge met his death by coming in contact with an electric wire, charged with 2,300 volts of electricity, and his widow Nellie E. Turnidge brought this action against J. T. Thompson and a corporation known as the Sheridan Light & Power Company. A judgment of nonsuit eliminated the Sheridan Light & Power Company, hut the plaintiff was awarded a verdict and judgment against Thompson, and he appealed. Joseph.

<p>Judgment — Lis Pendens — Setting Aside Default — Effect.</p> <p>L Order under Section 59, L. O. L., setting aside default, restores the cause to tbe court’s control, so that it becomes lis pendens with all its incidents.</p> <p>Judgment — Vacating Orders — At Same Term.</p> <p>2. At the term at whieh a court makes an order or determination, though it be a final judgment or decree, it may modify or vaeate it.</p> <p>Judgment — Vacating Orders — After Term.</p> <p>3. The court, making^ an order vacating a default and giving time extending into the next term to answer, has jurisdiction at next term after filing of ansVer to vacate the order.</p> <p>Judgment — Opening Default — -Setting Aside Order of Opening.</p> <p>4. The court, being convinced that it had been imposed on in vacating a default and allowing defendant to answer, can set aside the order as improvidently made.</p> <p>Appeal and Error — Recital in Order.</p> <p>5. Recital of fact in order appealed from imports absolute verity if nothing else is shown, as aga'nst unverified assignment of error and statement of counsel in brief.</p> <p>Judgment — Opening Default — Accompanying Answer.</p> <p>6. Application for leave to answer after default must be accompanied by proposed answer.</p> <p>Appeal and Error — Affirmance—Reason.</p> <p>7. Order vacating order opening default and allowing answer will be affirmed, assuming reason given in vacating order to be unsound, the record showing application to open default should have been denied because not accompanied by proposed answer.</p> <p>[As to absolute right of defendant not personally served to have judgment opened and to defend, see note in Ann. Cas. 1916B, 565.]</p>

<p>Appeal and Error — Parties—Intervention, on Appeal.</p> <p>1. The Supreme Court is a court of appellate jurisdiction only, and cannot admit interveners who were strangers to the proceeding below, as that would be an exercise of original jurisdiction.</p> <p>Appeal and Error — Notice of Appeal — Adverse Parties.</p> <p>2. Anyone whose rights may bo injuriously affected by the modification of a decree is a party adverse to the one appealing, and should be served with notice of appeal.</p> <p>Appeal and Error — Notice of Appeal — Parties—Dismissal.</p> <p>3. A proceeding was commenced before the board of control to determine the relative rights of the users of the water of a river, and on notice numerous users appeared and filed their claims and notices of contest, and after hearings, etc., the record was filed in the Circuit Court, and it entered a decree modifying the findings of the board, from the whole of which decree two of the parties appearing before the board and the Circuit Court separately appealed, but failed to serve notice of appeal upon all the parties appearing in the Circuit Court. Section 6650, L. O. L., as amended by Laws of 1913, page 161, provides that in such proceedings appeals from the decree may be taken to the Supreme Court the same as in other eases in equity, except that notice of appeal must be served and filed within 60 days from the entry of the decree, and Section 556 provides that upon an appeal from a decree the suit shall be tried upon the transcript and accompanying evidence. Held that, as the rights of all the parties were put in issue by the appeals, the failure to give notice of appeal to all who were parties below deprived the Supreme Court of jurisdiction of the subject matter.</p> <p>Appeal and Error — Appellate Jurisdiction — Notice of Appeal.</p> <p>4. To give the Supreme Court jurisdiction, notice of appeal must be served upon every adverse party.</p> <p>Appeal and Error — Right of Appeal — Conditions.</p> <p>5. The privilege of appeal is not inherent or constitutional, but exists only by virtue of the statute, and if the statute is burdensome in respect to notices of appeal, expenses, etc., it is not the province of the court to amend it or to dispense with its requirements, especially in view of Section 550, L. O. L., as amended by Laws of 1913, page 617, granting the privilege of giving oral notice of appeal in open court at rendition of final decree.</p> <p>Appeal and Error — Notice of Appeal — Contents.</p> <p>6. A notice of appeal should contain enough in its terms to show that the party presenting the same is really a party to the record sought to be reversed or modified.</p> <p>ON REHEARING.</p> <p>Appeal and Error — Right of Appeal — Statute.</p> <p>7. No appeal exists as a matter of right, but must be founded on statute.</p> <p>Appeal and Error — Dismissal of Appeal — Policy of Court.</p> <p>8. In view of the statute and rules of court which, where good faith is shown, provide for any amendment necessary to perfect appeal after notice of appeal and after Supreme Court has acquired jurisdiction, it is Supreme Court’s policy to sustain rather than to dismiss an appeal.</p> <p>Appeal and Error — Notice of Appeal — Jurisdiction of Supreme Court —Statute.</p> <p>9. The appellate court has no legal discretion over the service of the notice of appeal, and to give the Supreme Court jurisdiction on the merits there must be á strict compliance with Section 550, L. 0. L., as amended by Laws of 1913, page 617, providing for the service of notice of appeal.</p> <p>Appearance — “General Appearance.”</p> <p>10. A “general appearance” must be express or implied from defendant’s taking of some step in a cause ‘beneficial to himself or detrimental to plaintiff other than one contesting the jurisdiction only, the purpose of which must bear some substantial relation to cause.</p> <p>Appeal and Error — Notice of Appeal — “Party”—Statute.</p> <p>11. Where all sections of water law were complied with, and, under Section 14, a claimant filed his statement, he became an actor, and appeared and submitted his water right to Circuit Court’s jurisdiction for adjudication and to obtain his water right certificate, and was a party to proceeding entitled under Section 550, L. O. L., as amended by Laws of 1913, page 617, and in view of Section 6650 as amended by Laws of 1913, page 161, to notice of appeal.</p> <p>Appeal and Error — Notice of Appeal- — “Adverse Party.”</p> <p>12. Under Section 550, L. O. L., as amended by Laws of 1913, page 617, an “adverse party” entitled to notice of appeal is every party whose interest in relation to the judgment appealed from is in conflict with a modification or reversal sought by the appeal; every party interested in sustaining the judgment.</p> <p>Appeal and Error — Notice of Appeal — “Adverse Party” — Statute.</p> <p>13. Every claimant who filed his statement with water board in a proceeding under water law, and whose water right was adjudicated by decree of Circuit Court, is bound by that decree, though not excepting in Circuit Court, and is an adverse party within Section 550, L. O. L., as amended by Laws of 1913, page 617, entitled to a notice of appeal.</p>

From Multnomah.: Calvin U. Gantenbein, Judge. Department 2. This is a suit to foreclose a lien for materials which were used in a dwelling-house built for J. P. Tamiesie, the owner. The Peerless Pacific Company, a corporation, is a wholesaler dealing in heating plants and plumbing supplies and it furnished the heating plant and plumbing fixtures which were installed in the Tamiesie residence.

Original proceedings in Supreme Court. Department 2. This is a proceeding in mandamus, instituted in this court to compel the assessor, sheriff and clerk of Morrow County, Oregon, to correct the assessment-rolls for the tax of 1917, “by calculating the rate per cent of the special tax voted by School District No. 25 of Morrow County, Oregon, on the twenty-seventh day of November, 1917,” and to levy and extend the said special tax on the assessment-rolls, and to certify and…