Volume 90 — Oregon Reports

From Linn: William Galloway, Judge. Department 2. Held: at which representations were made on behalf of the corporation to the effect that the preferred stock and the trust deed to secure it was practically a bond; that such representations were made to most of the defendants who purchased the preferred stock by the agent of the corporation in selling the same.

<p>Navigable Waters — “Navigable Stream” — Common Law.</p> <p>1. At common law all streams on which the tide ebbed and flowed were prima facie “navigable,” and all other streams were held to be private or unnavigable.</p> <p>Navigable Waters — -Navigability—Test.</p> <p>2. The test of navigability which is applied in most of the jurisdictions in the United States, including the Supreme Court of the</p> <p>.•United States, is navigability in fact.</p> <p>Navigable Waters — Classes.</p> <p>_ 3. Streams and bodies of water as regards navigability are divided into several distinct classes: (1) Those in which the tide ebbs and flows; (2) those which are navigable in fact for boats, vessels, or lighters; (3) streams not navigable for any purpose; and •(4) the larger rivers susceptible of a great volume of commerce.</p> <p>Navigable Waters — Capacity for Floatage.</p> <p>4. A stream capable in its natural state of floating sawlogs to market successfully is navigable for that purpose.</p> <p>Navigable Waters — Riparian Owners — Right to Water.</p> <p>5. Conceding that title to bed of stream which is navigable in fact is in riparian owners, they do not own the water itself, but only the use of it as it flows by their property.</p> <p>[As to riparian proprietor’s right to use and detain water, and to the natural flow of the stream, see note in 79 Am. Dec. 638.]</p> <p>Navigable Waters — “Navigability”—Test.</p> <p>6. The test of navigability of a stream is its capacity to afford the length, width, and depth which enables boats and vessels to make successful progress through its waters, rather than circumstances involving the present right of approach to its banks.</p> <p>Navigable Waters — “Commerce”—Pleasure Boats.</p> <p>7. A- vessel carrying a load of passengers to a picnic is in law as much engaged in “commerce” as one carrying grain or other merchandise.</p> <p>Navigable Waters — “Navigable Stream.”</p> <p>8. A stream having well-defined banks, a well-defined channel, and a fairly constant depth of water sufScient to enable small boats and scows capable of conveying cattle, hay and other products to traverse its waters at all seasons, possesses a qualified navigability.</p> <p>Navigable Waters — Navigability—Evidence.</p> <p>9. In suit to enjoin defendant riparian owner from obstructing the outlet of a stream having a qualified navigability, up to his property, but not beyond, by dam or otherwise, held, that plaintiffs bave tbe right to navigate the stream down to and across lands of defendant under water, but that the dam is practically the limit of such navigation.</p> <p>Navigable Waters — Use of Shore.</p> <p>10. Those using a stream having a qualified navigability have no right to land on the premises of a riparian owner without his permission.</p> <p>Navigable Waters — Eight to Divert Channel.</p> <p>11. Although it was necessary that defendant be permitted to build proposed dam to protect its land from erosion, it may be enjoined from placing any obstruction in non-navigable stream until it constructs a channel of sufficient capacity to carry off the water to the same extent as the natural channel.</p>

From Clackamas: James U. Campbell, Judge. Department 2. This is an action for damages for the breach of a contract. The cause was tried before a jury. At the close of the evidence, the court granted defendant’s motion for nonsuit. Plaintiff appeals.

<p>Setoff and Counterclaim. — Against Assigned. Cause of Action.</p> <p>1. Plaintiff corporation, which secured assignment of sums due assignor under his contract with defendant city for hauling wood, was in no better position than assignor, and defendant could counterclaim for sums collected for the city by assignor for wood sold by him, although defendant had exacted a bond from him in view of section 98, L. O. L.</p> <p>[As to scope and office of counterclaim under the Code, see note in 89 Am. Dec. 482.] t</p>

<p>Fraud — Waiver—Performance After Discovery of 'Fraud.</p> <p>1. Where one who has been induced through fraud to enter into contract discovers the fraud while contract is wholly executory, he waives the fraud by wholly or partly performing the contract.</p> <p>Fraud — Part Performance of Contract — Waiver.</p> <p>2. But he does not waive the fraud by partly performing the contract before discovering the fraud.</p> <p>Fraud — Election of Remedies.</p> <p>3. A person who has been induced through fraud to enter into contract and partly performs his part of contract before discovering fraud may keep what he has acquired by the contract and sue for damages, or may rescind contract absolutely and sue in action at law to recover consideration, or may sue in equity to rescind contract and obtain full relief in such action.</p> <p>Fraud — Actions—Rescissions of Contract.</p> <p>4. Where a person who has been induced to enter into a contract through fraud, elects to retain what he has received and bring an action at law to recover the damages sustained, he is not required to rescind the contract.</p> <p>Vendor and Purchaser — Rescission-r-Fraud—Payments With Knowl- ' edge of Fraud.</p> <p>5. Payments of purchase-money installments with knowledge of the fraud inducing the contract of purchase amount to ratification defeating complete rescission.</p> <p>Fraud — Action for Damages.</p> <p>6. Grantees who were induced through fraud to purchase property, instead of rescinding transaction upon discovery of fraud, could keep the property and sue for damages.</p> <p>Vendor and Purchaser — Sale of Land — Payment With Notice of Fraud — Estoppel.</p> <p>7. Where grantees who were induced through fraud to purchase property made payments upon notes given grantor after discovery of fraud, estoppel did not result, where such payments did not cause grantor to change his position to his injury.</p> <p>Fraud — Payments With Notice of Fraud — Waiver.</p> <p>8. Grantees who purchased property because of fraudulent representations did not, by making payments on notes given for part of purchase price after discovery of fraud, waive their right to sue grantor for damages.</p> <p>Fraud — Conveyance — Evidence — Payments Made With Notice of Fraud.</p> <p>9. In grantees’ action against grantor for damages for fraudulent representations, evidence of payments on notes made by grantees after discovery of fraud may have some value on question of whether grantees were really deceived, or whether their grievance is a mere afterthought growing out of dissatisfaction.</p> <p>Fraud — Misrepresentation—Opinions—Dealer’s Talk.</p> <p>10. Representations as to value of land and assertions in commendation of land commonly called “dealer’s talk” are mere expressions of opinion and not actionable fraud.</p> <p>[As to representations by vendor in respect to value of property, see notes in 15 Am. Rep. 382; 18 Am. St. Rep. 556.]</p> <p>Trial — Contradictory Instructions.</p> <p>11. Where the court charged that where vendees had lived on the land two months before taking deed or paying money, having opportunity to ascertain the nature of the soil, etc., they were bound to protect themselves from any fraud of vendor, a further instruction that defendant could not rely on such rule, if he made the fraudulent statements alleged, was contradictory, and ground for reversal.</p> <p>Appeal and Error — Harmless Error — Conflicting Instructions.</p> <p>12. Conflicting instructions are ground for reversal, because tending to confuse the jury.</p>

<p>Criminal Law — Evidence—Corroboration of Accomplice — Sodomy.</p> <p>1. The objection that corroboration of the prosecuting witness in a sodomy ease is necessary on the accomplice theory is untenable, where the jury found such witness resisted the commission of the act.</p> <p>[As to convicting on testimony of accomplice, see notes in 71 Am. Dec. 671; 34 Am. Rep. 408; 98 Am. St. Rep. 158.]</p> <p>Criminal Law — Review—Jury as Sole Judge of Facts.</p> <p>2. The jury is the sole judge of the facts in a sodomy prosecution, and a conviction will not be disturbed, where the record discloses evidence sufficient for submission to the jury.</p> <p>Criminal Law — Review—Misconduct of Counsel — Favorable Ruling.</p> <p>3. Appellant, convicted of crime, cannot complain of a ruling of court stopping alleged improper remarks of the district attorney.</p> <p>Criminal Law — Objection—Remarks of Counsel.</p> <p>4. Where no objection was made nor ruling had on alleged improper remarks of counsel, the appellate court cannot review the matter.</p> <p>Criminal Law — New Trial — Motion—Sufficiency.</p> <p>5. A motion for new trial for misconduct of the district attorney and supporting affidavit held to be conclusions drawn from the evidence, and not the evidence nor facts called for by Section 177, L. O. L., when made on grounds provided for in Section 174, subdivisions 1, 2, 3, or subdivision 4.</p>

<p>Witnesses — Diagrams of Brands — Use.</p> <p>1. In a prosecution for lareeny of a horse, diagrams resembling the brands on the horse were admissible to illustrate the testimony of the witnesses.</p> <p>Witnesses^-Diagrams of Brands — Relevancy.</p> <p>2. That a horse alleged to have been stolen was exhibited to the jury in order to understand testimony given did not make irrelevant diagrams of brands on the horse used for the same purpose.</p> <p>Criminal Law — Evidence—Diagram of Brand.</p> <p>3. Admission of diagram of brand on a horse, alleged to have been stolen, drawn by the witness, was not error despite a statement by the witness that he did not know whether he could make the “sketch as crooked as the original brand.”</p> <p>Larceny — Evidence—Ownership.</p> <p>i. In a prosecution for larceny of a horse, a chattel mortgage given by a witness for the purchase price of horses, not including the one in question, held irrelevant on the question of ownership of the horse stolen.</p> <p>Larceny — Evidence—Ownership.</p> <p>5. In a prosecution for lareeny of a horse, defendant could not prove ownership of the animal by showing that he had mortgaged it or that he had been sued by an outside party for its possession.</p> <p>Witnesses — Evidence—Interest of Witness.</p> <p>6. In a prosecution for larceny of a horse, evidence that defendant’s witness traveled 100 miles without a subpoena to attend the grand jury investigation of the crime, and voluntarily appeared before that body, was admissible as showing the interest of the witness.</p> <p>Animals — Evidence of Ownership — Brand.</p> <p>7. A brand is admissible in a prosecution for larceny of a horse to show previous ownership, although not recorded as required by Laws of 1915, Chapter 33, Section 8.</p> <p>[As to brands on animals as evidence of ownership, see note in Ann. Cas. 1913E, 133.]</p> <p>Criminal Law — Evidence of. Other Offenses — System.</p> <p>8. In a prosecution for the larceny of a horse, evidence that, about the time of the theft, other animals owned by other parties were also found in his possession or claimed by him, was admissible as showing a system of crimes.</p> <p>Criminal Law — Best Evidence — Change of Brand.</p> <p>9. In a prosecution for the larceny of a horse, it was not error to refuse to receive in evidence the contents of a letter .claimed by defendant to have been received from the state veterinarian authorizing him to change his brand, sueh change of brand being provable as a publie record.</p> <p>Criminal Law — Instructions—Form and Defect.</p> <p>10. In a prosecution for the larceny of a horse, an instruction as to the purpose for which evidence of brands was admitted held correctly refused as requiring a declaration of legal effect of the evidence and as emphasizing evidence.</p>

<p>Exceptions, Bill of — Typewritten Sheets — Necessity of Signature of Judge.</p> <p>1. Typewritten sheets, signed by court reporter, purporting to state what occurred on presentation of plaintiff’s motion to dismiss appeal from a Justice Court, lacking certificate of trial judge, and failing to meet requirements of bill of exceptions, were not sufficient as such.</p> <p>Justices of the Peace — Appeal—Docket—Entry of Allowance.</p> <p>2. Where the original papers are regular on their face, with the exception that the docket of the justice shows no entry of allowance of appeal, such fact does not defeat an appeal otherwise regular.</p> <p>Justices of the Peace — Appeal—Transcript—Certificate—“All.”</p> <p>3. Under Section 2463, L. O. L., providing that transcript on appeal from Justice Court shall contain copy of all material entries in justice’s docket, certificate stating transcript contained all entries is sufficient; “all” including restrictive term “material.”</p> <p>Appeal and Error — Presumption Favoring Court Below — Denial of Motion to Dismiss Appeal from Justice.</p> <p>4. Where original papers are attached to transcript of record on appeal from Justice Court, and there is sufficient certificate of justice that transcript contains all docket entries and all original papers attached, the Supreme Court must, presume that the action of the trial court in denying motion to dismiss the appeal from the justice was regular, in the absence of affirmative showing to the contrary.</p> <p>Appeal and Error — Making up Record — Attachment of Papers After Appeal.</p> <p>5. It is within discretion of trial court, after appeal has once been taken, to cause papers omitted from record to be attached thereto, and in absence of affirmative showing to contrary it will be presumed that court acted regularly and within his powers.</p>

<p>Frauds, Statute of — Acceptance and Receipt of Property — Evidence.</p> <p>1. In replevin for possession of 87 head of cattle, plaintiff’s title depending upon oral contract of sale, testimony held insufficient to .show acceptance and receipt of property, or some part thereof, so as to satisfy the statute of frauds as to oral contract of sale of property at a price not less than $50.</p> <p>[As to acceptance and delivery of goods to satisfy statute of frauds, see notes in 49 Am. Dec. 325; 37 Am. Rep. 16; 96 Am. St. Rep. 215.]</p> <p>Trial — Motion for Nonsuit.</p> <p>2. A motion for judgment of nonsuit concedes the truth of every statement made in the evidence for plaintiff.</p> <p>Frauds, Statute of — Questions for jury.</p> <p>3. When there is a dispute as to the facts, it must be solved by a verdict of a jury; but when the facts in relation to a contract of sale alleged to be within the statute of frauds are not in dispute, it belongs to the court to determine their legal effect.</p> <p>Frauds, Statute of — Performance of Contract — Change of Possession.</p> <p>4. Under statute of frauds as to sale of personalty for $50 or more, a verbal transaction is not complete or binding without some physical act sufficient to indicate to an observer a change of property in the chattel involved.</p> <p>Replevin — Title and Right to Possession.</p> <p>5. To maintain replevin, plaintiff must show title and right to possession.</p> <p>Sales — Title—Executory Contract.</p> <p>6. Title does not pass while contract of sale is executory.</p> <p>Sales — Breach of Executory Contract — Remedy.</p> <p>7. The remedy for breach of executory contract of sale is an action for damages, not replevin.</p> <p>Sales — Executory Contract.</p> <p>8. Where money for cattle was to be paid at time of delivery, payment and delivery were concurrent conditions, performance of which was necessary to make contract fully executed.</p>

From Wasco: William L. Bradshaw, Judge. Department 2. This is an action of damages for a conversion. The cause was tried by the court without a jury, resulting in the findings of facts and conclusions of law and a judgment in favor of defendants. Plaintiff appeals.

From Multnomah: Henry E. McGinn, Judge. Department 2; This is a suit to enforce the specific performance of the terms of a fifteen-year lease with an option to purchase, of certain lands on the Willamette River between Portland and St. Johns, executed by the plaintiffs to the defendant W. M. Barnett on March 29, 1906. On July 28, 1911, the lease was assigned by Barnett through W. 0. Hadley to, the defendant J. 0. Elrod.

<p>Appeal and. Error — Deposit in Court to Avoid Forced Sale — Assignment of Deposit.</p> <p>1. Plaintiff cannot appeal from a decree declaring a lien on land in his favor, and permitting appellee to deposit with clerk of lower court money awarded so as to avoid forced sale of appellee’s land if he assigns his interest in deposit to the surety on his appeal bond as indemnity, since he has no right to money deposited until he accepts it.</p> <p>Appeal and Error — Bonds—Defect—Correction.</p> <p>2. Under Section 505, subdivision 4, L. O. L., when party gives required notice of appeal and through mistake omits to file a proper undertaking therefor, permission may be granted to supply defect, and appeal will be dismissed unless that is done.</p> <p>ON THE MERITS.</p> <p>Wills — Contract to Devise Land — Construction.</p> <p>3. A 'contract to devise land to plaintiff, plaintiff and family to move upon land and board and lodge him, implied a condition that home given would be fairly decent and comfortable, that the food would be suitable, and treatment accorded him kind and respectful.</p> <p>Specific Performance — Contract to Devise Land — Equitable Relief— Value of Improvements.</p> <p>4. Where owner of land agreed to devise land to plaintiff in consideration that plaintiff and family would move upon the land and board and lodge him, and plaintiff moved upon land and made improvements thereon, but failed to give owner the comfortable home, good food, and respectful treatment contemplated by the contract, the court, in action for specific performance of the contract, although denying specific performance, will compensate plaintiff for the value of the improvements made, making such sum a lien upon the land.</p> <p>[As to specific performance of contract to make a will, see note in Ann. Cas. 1914A, 399.]</p>

From Multnomah: William N. Gatens, Judge. Department 2. In June, 1913, the respondents commenced an acr tion of ejectment against the appellants, in the Circuit Court of Multnomah County, to recover possession of lots 20 and 21 in Block 2 of Park Addition to Albina, in the City of Portland. . To enjoin the prosecution of that action the Millers filed a cross-bill for equitable relief, to which the Fishers filed a demurrer upon the ground that there was no equity in the bill.

From Multnomah: Robert Tucker, Judge. Department 2. This is an action by the plaintiff against the defendant on a promissory note for $1,700 dated January 30, 1910, upon which there was a credit of $16.33 as of March 27, 1913.

From Wasco: William L. Bradshaw, Judge. Department 1. This is a suit to foreclose a mortgage on real estate, given to secure the payment of a note of $8,577.37 alleged to have been given to the plaintiff on March 1, 1915, and due on November 1st of' the same year. The answer denies the making or execution of both the note and the mortgage and challenges the complaint in other material particulars.

From Linn: George G. Bingham, Judge. Department 2. The defendant, John Deere Plow Company, hereinafter referred to as the Plow Company, is an Illinois corporation engaged in the manufacture and sale of farming machinery and duly licensed to transact business in the State of Oregon. The plaintiff is a merchant doing business at Brownsville in this state.

<p>Frauds, Statute of — Land Contract — Part Performance.</p> <p>1. Payment by purchaser of $140 on land contract, where purchase price was $750, was sufficient part performance to entitle purchaser to specific performance, though contract did not comply with statute of frauds.</p> <p>[As to enforcement of contracts because of part performance, see note in 32 Am. Dec. 129.]</p> <p>Vendor and Purchaser — Mutual Rescission — Recovery of Purchase Price.</p> <p>2. Where contract for sale of land is mutually rescinded, purchaser is entitled to recover purchase price paid.</p> <p>Vendor and Purchaser — Forfeiture of Payments.</p> <p>3. Forfeiture provision in land contract may be self-executing, or may merely confer option upon vendor, in which latter event default .does not of itself work a forfeiture, and vendor is entitled thereto only after a declaration of forfeiture or some equivalent . act or conduct.</p> <p>Vendor and Purchaser — Forfeiture of Payments.</p> <p>4. A provision in land contract for forfeiture of payments will not be construed self-executing, unless unequivocal language is used showing plainly and dearly that such was the intention of the parties.</p> <p>Vendor and Purchaser — Forfeiture of Payments.</p> <p>5. Stipulation in land contract that, upon purchaser’s noneomplianee, “deposit shall be forfeited as liquidated damages,” is not a self-executing forfeiture clause.</p> <p>Vendor and Purchaser — Time of Payments — Waiver by Vendor.</p> <p>6. Where installment land contract provided for forfeiture of payments upon purchaser’s noneompliance with contract, vendor, after waiving strict compliance with terms as to time of payment, could not claim forfeiture for default in payment without notifying purchaser of its intention to claim a forfeiture unless he made payment within reasonable time.</p> <p>Vendor and Purchaser — Abandonment of Contract.</p> <p>7. Under installment land contract providing for forfeiture of payments upon noneompliance with contract, letter of purchaser stating that he was unable to make further payments, and that he would have to let-the land go, was an abandonment of the contract, dispensing with necessity of vendor’s giving notice of termination of contract in order to eiaim forfeiture of payments</p>

<p>Mechanics’ Liens — Claim—Validity of Lien — Bookkeeping Errors.</p> <p>1. Bookkeeping errors resulting in a delivery of more materials than was reasonably necessary to complete the building and a failure to note certain credits for materials returned, when not willful errors but honest mistakes, do not invalidate a lien.</p> <p>[As to liens for materials furnished to be used, but not in fact used, see note in 64 Am. Dec. 678'.]</p> <p>Mechanics’ Liens — Statutes—Failure to Give Owner Statement of Materials Furnished.</p> <p>2. Failure to mail or deliver statements of materials furnished to owner as required by Section 7416,\ L. O. L., as amended by Laws of 1915, page 224, rendered nonlienable only those items delivered after May 22, 1915, when amendment became effective; it not being retroactive.</p> <p>Mechanics’ Liens — Amount of Lien — Nonlienable Items.</p> <p>3. Though some of the items of materials furnished were nonlienable, the subcontractor is entitled to a lien for the lienable items after deducting the credits for returned materials.</p> <p>Parties — Want of Capacity — Assumed Name — Waiver by Failure to Plead.</p> <p>4. In action to foreclose mechanics’ lien where plaintiff alleged its assignor was doing business under a certain name, defendant’s failure to plead noncomplianee with requirements of Laws of 1913, page 270, as to doing business under an assumed name, waived any benefit which would otherwise accrue to them because of assignor’s noncomplianee with the statute.</p> <p>Mechanics’ Liens — Attorney’s Fee — Lack of Evidence.</p> <p>5. In mechanic’s lien foreclosure action where there was no evidence as to whether $300 was a reasonable amount to be allowed as attorney’s fees, plaintiff’s allegation that such sum was reasonable being denied no allowance can be made.</p> <p>ON PETITION FOB BEHEABING.</p> <p>Trial — Finding of Fact — Stipulations of Counsel.</p> <p>6. That counsel agree to allow the court to determine attorney’s fees in a lien foreclosure case does not obviate the necessity of introducing evidence upon which the court may base a finding as to an issue of fact.</p>

Prom Marion: George G.' Bingham, Judge. Department 2. On January 4, 1910, the plaintiffs and James M. Slyter entered into an executory contract for. the purchase and sale of about twenty acres of laud out of the Jesse Adams Donation Land Claim in Marion County. On December 9, 1910, Slyter sold and assigned to S. W. Cooley and G. W. Small his right, title and interest in the contract.

From Malheur: Dalton Biggs, Judge. In Banc. This is an action of trespass quare clausum fregit. The cause was tried to the court and a jury resulting in a verdict and judgment for plaintiff. Defendant appeals.

From Lane: James W. Hamilton, Judge. Department 1. The plaintiff is the owner of land through which runs a slough originally debouching from the McKenzie Kiver but now closed from that stream, except in floods, by gravel washed in by the water. Before the defendant’s advent in the vicinity, at the usual stage on the plaintiff’s land the slough carried a flow of about sixteen inches in depth derived from springs and surface water brooks.

<p>Master and Servant — Action for Wages Due — Attorney's Fee.</p> <p>1. Under Laws of 1007, page 313 .(Sections 5066-5068, L. O. L.), an employee who las been discharged is not entitled to allowance of attorney’s fees; the proviso in Section 3 of the act contemplating payment of attorney’s fees only where employee has quit after giving three days’ notice of intent to quit.</p> <p>Statutes — “Purview.”</p> <p>2. The “purview” of a statute is the enacting part or body of the act, as distinguished from other parts, such as the preamble, the title, saving clauses, and provisos.</p> <p>Statutes — Proviso—Functions.</p> <p>3. The appropriate function of a proviso is to restrain or modify the purview of a statute in which the proviso is found.</p> <p>[As to proviso in section of a statute as applicable to other sections, see note in Ann. Cas. 1913E, 658.]</p> <p>Statutes — Conflict Between Purview and Proviso. •</p> <p>4. Since there is a conflict between a part of the purview of Laws; of 1907, page 314, Section 3, and the proviso thereof appearing in the same sentence, the proviso must govern.</p>

From Multnomah: John P. Kavanaugh, Judge. Tn Banc. Statement by Mr. Justice Moore. This is a suit to foreclose a real estate mortgage executed by the defendant Wanda Bietau to the plaintiff, B. M. Lombard, on account of which lien there remained due, when this suit was instituted, $1,405 with interest at six per cent per annum from June 29, 1915.

From Yamhill: Harry H. Belt, Judge. Department 2. This is an action for the possession of personal property, namely: one Tacoma donkey-engine; one Seattle donkey-engine; one steam-log saw, and all lines, blocks, tackle, pulleys and other personal property used in connection with said donkey-engines. The cause was tried to the court and a jury.

From Multnomah: William N. Gatens, Judge. In Banc. This is a suit in equity to secure a reconveyance of certain parcels of realty, and to declare a trust in the proceeds of a $5,000 note executed by the father of plaintiff to defendant, and to secure the possession of certificates of shares of stock in a coal company, and for an accounting for rents and profits on the real estate first mentioned.

<p>Appeal and Error — Notice of Appeal — Time for Filing.</p> <p>1. The service and filing of notice of appeal within the time prescribed by Section 550, L. O. L.-, as amended by Laws of 1913, Chapter 319, is jurisdictional, and the Supreme Court can neither extend the time nor excuse a failure to file within sueh time.</p> <p>ON PETITION POE REHEARING.</p> <p>Evidence — Presumptions—Filing of Papers.</p> <p>2. There is no presumption as to when an attorney files a paper, or that he has filed it within the time prescribed by statute.</p> <p>Appeal and Error — Notice of Appeal — Time for Serving and Filing.</p> <p>3. Service and filing of a notice of appeal within sixty days after the rendition of the judgment are acts absolutely necessary to give the Supreme Court jurisdiction.</p> <p>Appeal and Error — Notice of Appeal — Transcript.</p> <p>4. A transcript must affirmatively show that a notice of appeal was served and filed within sixty days after the rendition of a judgment.</p>

From Union: John W. Knowles, Judge. In Bane. This is an action for damages for the breach of a contract. There are two causes of action set out in the complaint. The first recites an agreement between plaintiff and defendant whereby they were to-winter their livestock together during the season of 1917-18, which was done, and that under the terms of the contract, defendant is still indebted to plaintiff in the sum of $254.88.

From Baker: Gustav Andersen, Judge. In Banc. By his second amended complaint the plaintiff seeks to foreclose a lien for labor, services and materials furnished for and used in the construction, alteration and repair of a dam and reservoir for the defendants. It is said .that by the original contract the work was to be completed on or before November 1, 1916.

<p>Pleading — Equitable Suits — Demurrer.</p> <p>1. Section 58, L. O. L., enumerating grounds of demurrer to a complaint, and Section 71, providing that such objections may be taken by answer, when not appearing on the face of the complaint, are applicable to suits in equity, in' view of the express provisions of Section 395.</p> <p>Abatement and Revival — Demurrer—Other Actions Pending — Pleading.</p> <p>2. Sections 68, 71, L. O. L., relating to grounds of demurrer to a complaint, do not change the mature of the plea of “another action pending”; the plea still being in abatement of the action against which it is interposed.</p> <p>Abatement and Revival — Grounds—Other Actions Pending — ’Suits in Same State.</p> <p>3. The rule that a subsequent action will be abated by the pendency of a prior action between the same parties on the same cause of action is generally confined to those eases where both actions are pending in courts of the same state.</p> <p>[As to abatement of one action by the pendency of another in the same state, see note in 84 Am. Dec. 452.]</p> <p>Abatement and Revival — Continuance—Other Actions Pending — Suits in Foreign State.</p> <p>4. While the pendency of a prior action in another state does not entitle a party as a .matter of right to an abatement of the seeond action, the court may in its discretion postpone the second action until after decision of the first.</p>

From Malheur: Dalton Biggs, Judge. In Banc. This is an action to recover damages for the trespass of sheep upon the unfenced lands of the plaintiff.

From Coos: John S. Coke, Judge. Department 2. The defendant was convicted of the crime of larceny of public money, sentenced to pay a fine of $1,329.90, and be confined in the penitentiary from one to seven years. Defendant appeals.

From Malheur: Dalton Biggs, Judge. In Banc. This is a suit to enjoin the removal of a brick building from a lot in the City of Ontario, and to enjoin execution against the sureties upon an appeal bond.

<p>Parent and Child — Nonsupport of Child — Statutes.</p> <p>1. Statutes such as Laws of 1917, page 175, amending Laws of 1913, page 472, as amended by Laws of 1915, page 359, whieh make it an offense for a person without just or sufficient cause to fail to support his children, are intended to compel a father when able to do his full duty, but do not define the duty of a father.</p> <p>Parent and Child — Support—Father.</p> <p>2. It is the legal duty of a father to support his child in accordance with his ability and circumstances, etc.</p> <p>Divorce — Duty to Support — Effect of Decree.</p> <p>3. A decree of divorce awarding custody of. the minor child of the marriage to the mother is not res judicata as to the duty of the father to support.</p> <p>[As to duty of father to support child awarded to mother by divorce decree silent as to maintenance, see notes in 114 Am. St. Rep. 700; Ann. Cas. 1913C, 296; Ann. Cas. 1915D, 813.]</p> <p>Parent and Child — Duty to Support.</p> <p>4. The primary obligation on the part of the father to support his child is not taken away by Section 7039, L. O. L., etc., relating to the duty of both parents to maintain their children.</p> <p>Parent and Child — Support—Obligation.</p> <p>5. The duty to support offspring is a continuing obligation.</p> <p>Parent and Child — Support—Statute.</p> <p>6. In a prosecution under Laws of 1917, page 175, making it an offense for any person without just or sufficient cause to fail to support his children, proof of a complete failure to support is not necessary to conviction; proof of failure to provide adequate support being sufficient.</p> <p>Parent and Child — Nonsupport—Intent. . ,</p> <p>7. A wieked intent is not an essential element of the crime of failure to support children denounced by Laws of 1917, page 175.</p> <p>Parent and Child — Nonsupport—Defense—“Just”—“Just or Sufficient Cause.”</p> <p>8. Under Laws of 1917, page 175, denouncing the offense of failure without just or sufficient cause to support children, the expression “just or sufficient cause” means legal or lawful cause, the word “just” being derived from the Latin “justus,” which is from “jus,” meaning a legal right; hence, while the law does not require the impossible, the cause for failure to exeuse must be lawful cause.</p> <p>Parent and Child — Nonsupport—Excuse.</p> <p>9. That a wife has means of her own and supports children is no defense to a prosecution against the husband under Laws of 1917, page 175, for failure, ete.</p> <p>Parent and Child — Nonsupport—Excuse.</p> <p>10. The remarriage of the mother of a child after divorce from the father is no defense to a prosecution against the father under Laws of 1917, page 175, for failure to support the child, as that duty does not devolve on the stepfather in the absence of a showing that he stands in loco parentis.</p> <p>Criminal Law — -Proof Beyond Reasonable Doubt.</p> <p>11. A prosecution under Laws of 1917, page 175, for failure to' support his child, being a criminal action,* the state must prove beyond a reasonable doubt that defendant failed and neglected without just or sufficient cause to support his child.</p> <p>Parent and Child — Nonsupport—Defenses.</p> <p>12. Where 'a' father, after divorce from his wife, who was awarded custody of the minor child, remarried, the father is entitled, in a prosecution under Laws of 1917, page 175, making it an offense for any person without just or reasonable cause to fail to support his wife or children, to show his inability to support his second wife, etc., mueh less the child; the remarriage, which was lawful, having occurred before passage of Laws of 1917, at which time the father was by Laws of 1913, page 472, as amended by Laws of 1915, page 359, excepted from penalty for failure to support such child, ete.</p> <p>Parent and Child — Nonsupport—Evidence.</p> <p>13. In a prosecution under Laws of 1917, page 175, for failure to support his minor child of a former marriage custody of whieh had been awarded the mother, evidence as to the refusal of the father to support the child prior 'to Laws of 1917, held admissible on question whether his failure was without just cause, particularly as failure was no offense under law prior to time Laws of 1917 went into effect, etc.</p> <p>Witnesses — Cross-examination.</p> <p>14. The court may on its own motion without objection from counsel exclude cross-examination intended/ only to humiliate the witness.</p>

<p>From Malheur: Dalton Biggs, Judge.</p> <p>In Banc.</p> <p>This is a suit by‘John A. Ward against J. H. Seaweard. From a decree for plaintiff, defendant appeals.</p>

From Columbia: George R. Bagley, Judge. Department 2. The plaintiff alleges that the defendant is an Oregon corporation engaged in operating a rock quarry and mill within the city limits of St. Helens in Columbia County, and owning certain lots on Hemlock Street; that leading from the business section of St. Helens westerly over and across the premises of the defendant to the Columbia County Lumber Company’s sawmill and the St. Helens Creosoting Company’s plant there was a…

<p>Assignments for Benefit of Creditors — Construction of Instrument.</p> <p>1. Instrument held to be bill of sale of business and assets of a partnership, and not an assignment for benefit of creditors, in view of subsequent acts of parties.</p> <p>Sales — Validity—Consideration.</p> <p>2. It does not invalidate sale of assets of business that consideration thereof shall be paying of all debts of business; and that a limit is placed upon such amount makes no difference.</p>

<p>Contracts — Construction—Separate Instrument.</p> <p>1. Where two instruments are executed at the same time between the same parties, covering the same subject matter, they will be construed together as constituting one agreement.</p> <p>Dower — Purchase-money Mortgages — Statutes.</p> <p>2. Where a husband purchased land, at which time he received a deed and executed a mortgage in an amount equal to the unpaid portion of the purchase price, the two will be construed together, and the mortgage will be construed to be a purchase-money mortgage, under Section 7289, L. O. L., and wife will not be entitled to ■dower as against mortgagee.</p> <p>Mortgages — Construction.</p> <p>3. A note and a mortgage given to secure it will be construed together as one instrument.</p> <p>Husband and Wife — Attorney in Fact.</p> <p>4. Where a husband signs a mortgage personally, the signing of his name again after the name of his wife would have the legal effeet of being the signature of the wife by the husband, as her attorney in fact, especially where the note is so signed.</p> <p>Alteration of Instruments — Immaterial Alterations.</p> <p>5. An alteration which does not change the legal effect, of an instrument is- not a material alteration and does not invalidate the same.</p> <p>Alteration of Instruments — Alterations Prior to Signature.</p> <p>6. Any change made in an instrument before signatures are affixed is not an alteration, it being presumed that such changes are authorized.</p> <p>Alteration of Instruments — Immaterial Alterations.</p> <p>7. The expression in a note, “8- per cent per annum from annum until paid,” is of the same legal effect as if read, “8 per cent per</p> <p>annum from-until paid',” and hence changing the word “annum”</p> <p>to the word “date” was not a material alteration, under Section 5850, E. O. L.</p> <p>[As to material alteration of note as affecting mortgage security, see note in Aun. Cas. 1913E, 317.]</p>

From Multnomah: Harry H. Belt, Judge. Department 2. This is an action to recover damages for a personal injury sustained by plaintiff September 11, 1915. It appears that Marshall-Wells Hardware Company is operating a two-story barn at the comer of Seventeenth and Love joy Streets, in the City of Portland. Plaintiff had been in the employ of this corporation since April, 1910.

From Multnomah.: William N. G-atens, Judge. Department 1. The history of this case, so far as it is of interest here, is about as follows: In the month of June, 1912, the defendant William P. Richardson purchased from Lucy A. Lumsden a promissory note secured by mortgage on certain real property executed by the plaintiffs herein, and in the same month began a suit to foreclose the same.

From Wallowa: John W. Knowles, Judge. In Banc. This is a contest over water rights in connection with the adjudication of the waters of Hurricane Creek, a tributary of the Wallowa Biver. The facts are in the main stipulated between the parties. On the 28th of November, 1901, three persons met for the purpose of organizing the Moonshine Ditch Company as a corporation.

Prom Marion: William Galloway, Judge. Department 1. This is a suit for an accounting brought by D. D. Gorsline as executor of the estate of W. M. Gorsline, deceased, against Jennie A. Gore. W. M. Gorsline and Catherine Gorsline were husband and wife and resided in Marion County, Oregon. D. D. Gorsline, Jennie A. Gore and Mrs. Illedge are children of W. M. and Catherine Gorsline.

From Lane: George F. Skipworth, Judge. Department 1. This is a suit to remove a cloud from the title to certain real estate and to set aside an-order of the County Court of Lane County, establishing a county road through plaintiff’s land. The complaint, after alleging the ownership and possession, recites, in a general and somewhat indefinite manner, some of the steps taken by the County Court in establishing the highway.

From Harney: Dalton Biggs, Judge. In Banc. This is a proceeding to subject the estate and person of Lanra A. Dickenson to a guardianship. On the eleventh day of June, 1917, Rose 0. Henderson, a daughter of Laura A. Dickenson, filed a petition in the County Court of Harney County seeking to have herself appointed as guardian for the person and estate of her mother.

From Lake: L. F. Conn, Judge. Department 1. Vernon Stickel appealed from a conviction of the larceny of 23 head of cattle belonging to Andrew Keister. About 1 o’clock in the morning of August 25, 1917, Andrew Keister was awakened by “a terrible racket” made by the 71 bead of cattle kept by him in a field about 80 rods east of bis bouse.

From Umatilla: Gilbert W. Phelps, Judge. In Banc. The plaintiffs allege the breach of a warranty of a National Combine Harvester which they aver the defendant, an Idaho corporation, sold to them with the guaranty mentioned.

From Union: John W. Knowles, Judge. In Banc. This is a suit for divorce. Plaintiff and defendant were married in 1906 and on October 16, 1915, while, living at La Grande, Oregon, domestic relations grew somewhat strained, and an agreement was entered into between the parties in writing dividing the property they then owned and agreeing that henceforward each party would pay his own living expenses out of his own income and property.

<p>Appeal and Error — Harmless Error — Overruling Motion for Nonsuit.</p> <p>1. Any error committed by the court in overruling a motion for nonsuit was cured, if any of the parties afterward introduced evidence sufficient to sustain tbe verdict.</p> <p>Principal and Agent — Relation—Question for Jury.</p> <p>2. In action for breach of contract to deliver sheep whether the person executing the contract for defendant was authorized /to do so, or whether his aet was ratified by defendant, held for the jury.</p> <p>Principal and Agent — Relation—Proof.</p> <p>3. Agency may be proved by the testimony of the alleged agent.</p> <p>Principal and Agent — Pleading and Issues.</p> <p>4. Under an allegation that defendant agreed to sell 400 head of sheep, plaintiffs could prove that the agreement was made by defendant in person, or by his authorized agent, or by one whose acts, though not previously authorized, were afterward ratified.</p> <p>Principal and Agent — Liability of Principal.</p> <p>5. A person is not liable on a contract executed by another in his behalf, unless he previously authorized or subsequently ratified the act.</p> <p>Trial — Instructions.</p> <p>• 6. Each instruction should be viewed in connection with the remaining instructions, and should be considered as a whole.</p> <p>Principal and Agent — Liability of Agent.</p> <p>7. Where one holds himself out as an agent and executes a contract in behalf of another, he is liable on an implied warranty that he is an authorized agent, where he was neither previously authorized nor the aet afterwards ratified.</p> <p>[As to liability of agent executing contract in name of principal without authority, see note in Ann. Cas. 1915D, 722.]</p> <p>Principal and Agent — Liability of Agent — Pleading.</p> <p>8. In a plain action on. a contract, recovery cannot' be had against one of two defendants on the ground that he falsely held himself out as the authorized agent of the other defendant.</p> <p>Sales — Issues—Contract.</p> <p>9. In an - action on a certain written contract to deliver sheep, executed by A. on behalf of R., recovery cannot be had from A., who subsequently, on R.’s failure to deliver, agreed to procure other sheep for plaintiff on the same terms; A.’s agreement being a new contract.</p>

From Multnomah: John P. Kavanaugh, Judge. Department 1. This is an action to recover compensation for personal injuries.

<p>Sales — Rescission by Seller — Action for Money Paid by Buyer.</p> <p>1. When a seller abandons his contract to sell, the buyer, in his choice of remedies, may elect to rescind the contract and maintain an action at law to recover what he has paid thereon as money had and received.</p> <p>Sales — Payment in Installments — Acceptance of Payments After Default — Election.</p> <p>2. Where contract of sale provides' for payments in installments, and stipulates that for default as to any the seller shall have the right to declare forfeited all payments made, acceptance of payment by seller after buyer is in default is waiver of right to declare forfeiture and election to consider contract in force.</p> <p>Sales — Notice of Rescission by Seller.</p> <p>3. Where contract of sale provides for payment in installments and stipulates that for default as to any the seller shall have the right to declare forfeited all payments made, the seller has no right to forfeit except' after notice and allowance of reasonable time to comply with the contract.</p> <p>[As to lien of vendor of personalty, see note in 83 Am. St. Rep. 451..].</p> <p>Sales — Wrongful Rescission by Seller — Assent by Buyer — Effect.</p> <p>4. When seller wrongfully attempted to rescind, having elected by acceptance of a payment after buyer’s default to consider contract still in force, buyer had the right to assent to such rescission, thereby accomplishing it by mutual consent.</p> <p>Sales — Rescission by Agreement — Restoration of Status Quo — Recovery by Buyer.</p> <p>5. Where buyer and seller both consented to rescission, neither can base claim thereon except in so far as it is necessary to restoration of the status quo; rescission by mutual agreement ending contract.</p> <p>Sales — Recovery of Price by Buyer — Rescission.</p> <p>6. Where sale contract is rescinded by mutual consent, the buyer may recover back what he has paid.</p> <p>Pleading — Reply—Departure from Complaint.</p> <p>7. In action by buyer to recover what he had paid on contract wrongfully rescinded by seller, buyer’s reply to seller’s answer setting up rescission, denying that time was of the essence, and alleging the seller wrongfully renounced and abandoned, was not a departure from complaint.</p>

<p>Intoxicating Liquors — Sale—Indictment—Sufficiency.</p> <p>1. Indictment under Laws of 1917, page 46, Section 1, amending Section 5, Laws of. 1915, page 151, but leaving Sections 1-4 in full force, as to unlawful sale, etc., of intoxicants, held sufficient although particular liquor was not designated; such designation not being required in view of Laws of 1915, page 166, Section 33.</p> <p>Criminal Law — Proof of Other Sales — Admissibility.</p> <p>2. In prosecution under Laws of 1917, page 46, section 1, amending Section 5, Laws of 1915, page 151, for unlawful sale of intoxicants, evidence of other like sales was admissible in view of Laws of 1915, page 169, Section 39, to show character of business done by accused, etc.</p> <p>Criminal Law — Witness Employed to Obtain Evidence — “Accomplice.”</p> <p>3. One employed to make purchase of intoxicants for purpose of appearing as witness against defendant was not an “accomplice,” within Sections 1540, 2370, L. O. L., so that conviction could be had on his uncorroborated testimony; the crime being the sale and not the purchase.</p> <p>[As to inducement to violate liquor law with view to prosecution therefor as defense to such prosecution, see note in Ann. Cas. 1916C, 732.]</p>

Prom Multnomah: Bobert Gr. Morrow, Judge. In Banc. The plaintiff, Mary Doherty, as the administratrix of the estate of her deceased husband, brought this action against the defendants, Hazelwood Company, a corporation, J.* W. Shearer and E. J. Cashin, to recover damages for the death of her decedent which she alleges was caused by the negligent operation of an automobile owned by the company and driven and used at the time by the individual defendants in the interest of the…

<p>Animals — Cruelty to Animals — Variance.</p> <p>1. Where indictment framed under Section 2103, L. O. Xi., alleged cruelty, and further, that horse was unfit for riding, but failed to allege that defendant was owner as required under the second part of such section, and evidence showed defendant to be the owner and that he rode the animal while it had an ulcerated sore on its back, there was no variance; the two parts of the section not being in conflict.</p> <p>Animals — Cruelty to Animals — “Torturing and Tormenting Animals.”</p> <p>2. The acts of riding a horse suffering with an ulcerated sore on its back and shoulders1 which fell1 under the saddle blanket, and of depriving the animal of necessary sustenance, constitute the crime of “torturing and tormenting” within Section 2103, L. O. L.</p> <p>Witnesses — Impeachment—Prerequisites.</p> <p>3. In prosecution for cruelty to a horse where a deputy who made the arrest had testified, accused was not entitled to show what he had made the deputy admit, certain things, without complying with Section 864, L; O. It., requiring the witness to be impeached to be asked whether he made the statement and be allowed to explain it.</p> <p>Criminal Law — Harmless Error — Admitting Evidence — Unresponsive Answers.</p> <p>4. In prosecution for cruelty to a horse, error, if any, in permitting the question to he asked how long defendant rode the Horse, was harmless, where the answer was unresponsive so that the question was never answered.</p>

<p>Trial — Direction of Verdict — When Proper.</p> <p>1. Verdict cannot be directed, if there is any evidence sufficient to be submitted to the jury on the issue involved.</p> <p>Railroads — Crossing Accidents — Respective Duties of Railroad and Traveler.</p> <p>2. The duty of the traveler to use reasonable diligence to avoid a collision at a crossing is as imperative as the duty of those who operate the train, with the qualification that the train has the right of way where the track intersects the highway.</p> <p>Railroads — Crossing Accidents — Automobiles—Care Required.</p> <p>3. An automobile being capable of control within narrow limits, the driver of an automobile, on approaching railroad crossing, must observe more particularly the rule to look and listen than must a driver of a team.</p> <p>Railroads — Crossing Accidents — Duty to Look.</p> <p>4. Failure of a person, about to cross a railway track on a highway at grade, to look and listen for an approaching train, is negligence per se, and will bar a recovery for an injury received by a collision with a train at the crossing.</p> <p>Railroads — Crossing Accidents — Duty to Look and Listen.</p> <p>5. It is incumbent on an automobile driver, approaching a railroad crossing, both to look and to listen.</p> <p>Railroads — Crossing Accidents — Duty to Look and Listen.</p> <p>6. Where view of railroad track from road was obstructed by bluff, it was the duty of an automobile driver to look for a train before going on the track.</p> <p>Railroads — Crossing Accident — Contributory Negligence.</p> <p>7. Driver of automobile, who approached railroad crossing at about 6 miles per hour without looking or listening, was guilty of contributory negligence when he failed to stop, if necessary in order ■ to see approaching train, before going on track, and was killed by a train.</p> <p>Negligence — Imputed Negligence — Driver and Occupant of Vehicle.</p> <p>8. Whether automobile passenger was a guest, or was in partial control of the car, which was negligently driven upon the track and struck by a train, held for the jury.</p> <p>Negligence — Imputed Negligence — Guest in Vehicle.</p> <p>9. Negligence of the driver of an automobile is not — to be imputed</p> <p>to a mere guest.</p> <p>[As to negligence of driver of automobile as imputable to occupant, see note in Ann. Cas. 1916E, 268.]</p> <p>Negligence — Imputed Negligence — Joint Adventure.</p> <p>10. Negligence of the driver of an automobile, who negligently '</p> <p>goes upon a railroad track, is to be imputed to one riding with him, who is his master or principal, in control of the machine, or if the passenger and”the driver’ are” engaged? in a joint adventure, in which , the transportation is a factor. ~ " ’</p> <p>Negligence — Imputed Negligence — Jury Question.</p> <p>11. Whether deceased automobile driver and injured passenger were engaged in joint adventure held, under the evidence, for the jury.</p> <p>Evidence — Parol Evidence — Varying Writing.</p> <p>12. It is permissible for a party to a written instrument to explain it and vary -its terms, in litigation between himself and strangers to the document.</p> <p>Negligence — Imputed Negligence — Joint Adventure — Requisites.</p> <p>13. To establish a joint adventure between automobile driver and passenger, the passenger must have either express or implied right to direet-the movelhent of the car.~" - ■ '</p> <p>Railroads — Crossing Accidents — Automobile Passenger — Rights and Duties.</p> <p>14. Though passenger in automobile was merely a guest, it was his duty on apih-oachingJTrailwaFciosSing. to look and listen accord-' ihg^t6"Eis[pp'p6f|hnity7 and,J.f he did not, he assumed the risk' ”?”</p> <p>Negligence — Imputed Negligence — Exercise of Care by Plaintiff.</p> <p>15. Assuming that an automobile passenger was a mere guest, negligence of the driver could not be imputed to him, if he was in the exercise of reasonable care under all circumstances.</p> <p>Railroads — Crossing Accidents — Instructions—Generality.</p> <p>16. In action for injuries and death at railroad crossing, instruction on care required held too general.</p> <p>Railroads — Crossing Accidents — Respective Rights.</p> <p>17. One in an automobile approaching railroad traek cannot assume that the employees of the railroad have performed their duty until after he has effectively looked and listened without seeing or hearing an approaching train.</p> <p>Trial — Instructions—Assumption of Facts.</p> <p>18. Where suits of passenger in automobile and of the driver’s administrator were tried together, requested instruction that, if either driver or passenger was guilty of negligence contributing to the accident, and without which it would not have occurred, verdict should be for defendant in both cases, was erroneous, as assuming that the relation of the occupants warranted imputing negligence of one of them to the other.</p> <p>Trial — Instructions—Assumption of Facts.</p> <p>19. Where suits of passenger in automobile and of the driver’s administrator were tried together, requested instruction that, if collision with train happened wholly without the negligence of the passenger, he could recover, though the driver was negligent, was erroneous, as assuming that the driver’s negligence could not be imputed to him.</p> <p>Damages — Instructions.</p> <p>20. In action for injury at railroad crossing, instruction an damages held not erroneous, though subject to criticism.</p> <p>Railroads — Crossing Accidents — Speed of Train.</p> <p>21. No rate of speed over a country crossing infrequently traveled is of itself negligence on the part of the railroad.</p> <p>Evidence — Presumption—Proper Conduct — Speed of Train-</p> <p>22. The law presumes that the usual rate of speed of trains over á given crossing is reasonable, and not negligent.</p>

<p>Railroads — Public Service Commission — Jurisdiction—Construction of New Highway.</p> <p>1. Where a railroad company appropriated part of a county road for its right of way, under a contract with the County Court to establish another road, but the company failedAo carry out its agreement, held that, under Laws of 1913, page 577, Section 1, the Public Service Commission was without jurisdiction to order the railroad company to construct a highway in lieu of the one appropriated.</p>

<p>Trial — Motion for Nonsuit — Effect.</p> <p>1. A motion for an involuntary judgment of nonsuit is in the nature of a demurrer to the evidence .for plaintiff, and the court must decide whether there would- be a want of evidence to support a verdict for plaintiff, though all his evidence be assumed true.</p> <p>Trial — Motion for Directed Verdict — Effect.</p> <p>2. A motion for a directed verdict -presents the same question for decision as- does a motion for judgment of nonsuit, but the plaintiff is entitled to the benefit, not only of his own evidence, but to the benefit of any evidence favorable to him, though introduced by defendant.</p> <p>[As to when compulsory nonsuit should be granted, see note in 24 Am. Dec.- 620.]</p> <p>Judgment — Finality—Motion for Dismissal — Directed Verdict.</p> <p>3. While a judgment of nonsuit under Section 184, L. O. L., operates merely as a dismissal, a judgment on a directed verdict concludes the controversy.</p> <p>Trial — Motions—Demurrer to Pleading.</p> <p>4. A motion for a .directed verdict, as well as a motion for an involuntary judgment of nonsuit, challenges the legal sufficiency of the evidence, and in that way performs the same function in connection with the evidence as does a demurrer to a pleading, but neither of the motions is designed to perform the function of a demurrer to a pleading.</p> <p>Trial — -Directed Verdict — Defects in Complaint.</p> <p>5. Though a complaint omits some material allegation, a motion for a directed verdiet, based upon the fact of such omission, should be. denied, where the objection can be cured by amendment, and plaintiff’s evidence, if true, makes a case against the defendant.</p> <p>Master and Servant — Injuries to Servant — Evidence—Jury Question.</p> <p>6. In an action by a taxicab driver, who claimed to have suffered injuries as a result of defective wrench furnished by the employer to enable drivers to replace punctured tires, evidence held sufficient to carry the case to the jury.</p> <p>Master and Servant — Injuries to Servant — Workmen’s Compensation.</p> <p>7. Cause of aetion by a taxicab driver for injuries received as a result of a defective wrench furnished by the employer to remove punctured tires, etc., does not fall within the Employers’ Liability Act.</p>

Original proceedings in Supreme Court. In Banc. Held: and the election precincts and officers shall be the same for all elections held at the same time. All provisions of the charters and ordinances of incorporated cities and towns pertaining to the holding of elections shall continue in full force and effect except so far as they relate to the time of holding such elections.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. The plaintiffs, two of whom appear by guardian, are children of James W. Beakey, deceased. Before his death the latter made a will which, omitting the publication and attestation clauses, reads thus: “First. I give, devise and bequeath all of-my property of every kind and nature wheresoever situated to my executrix hereinafter named; “Second.

From Umatilla: Gilbert W. Phelps, Judge. In Bane. This is an action brought to recover damages for personal injuries.

<p>Execution — Property Subject to Levy — Equitable Interests.</p> <p>1. Intangible and uncertain interests which involve the rights of third parties, sueh as an equitable title in land1 where the legal title is not in the debtor, are not subject to execution.</p> <p>Execution — Property Subject to Levy — Trusts.</p> <p>2. Equity will not permit the levy of an execution upon a legal title held by a debtor as trustee for a third party, as in the ease of an assignee for the benefit of creditors or an ordinary naked trust.</p> <p>[As to equities whieh are not subject to levy under statutes subjecting trust estates to execution, see note in 97 Am. Dec. 304.]</p> <p>Execution — Property Subject to Levy — Untransferable Interests.</p> <p>3. Interests which cannot be transferred, such as franchises of corporations, rights to office, ete., are not subject to execution.</p> <p>Execution — Property Subject to Levy — Public Interest.</p> <p>4. Property whieh is so involved with the interest of the public that it cannot be levied upon and sold without interfering with the rights of the public, such as corporations like canals and railways, is not subject to execution.</p> <p>Execution — Property Subject to Levy — Mutual Water Companies.</p> <p>'5. Property of a mutual water company, not organized for the purpose of selling water or as a profit corporation but for the sole purpose of transmitting and delivering to appropriators and owners of the water the quantity to whieh each is entitled, the relation of the corporation being that of a holding company, trustee or agent, is not subject to levy and sale under execution.</p> <p>Waters and Watercourses — “General Corporation” — Ditch Companies.</p> <p>6. A mutual ditch company, not organized for the purpose of selling water or as a profit corporation but for the sole purpose of transmitting and delivering to appropriators and owners of the water the quantity to which each is entitled, is not a “general corporation,”within the meaning of Section 6525, L. O. L.</p> <p>Corporations — “Public Service Corporation” — Ditch Companies.</p> <p>7. A mutual water company, organized for the sole purpose of transmitting and delivering to the appxopriatoxs and owners of the water the quantity to which each is entitled without profit, is not a “publie service corporation,” as that term is usually applied.</p> <p>Carriers — Water Companies — “Common Carrier.”</p> <p>8. A mutual ditch company, not organized for the purpose of selling water or as a profit corporation, but for the sole purpose of transmitting and delivering to the appropriators and owners of water the quantity to which each is entitled, is not a “common carrier” of water.</p>

<p>From Jefferson: T. E. J. Duffy, Judge.</p> <p>In Banc.</p> <p>On motion to affirm judgment.</p>

<p>Pleading — General Issue — Matters Provable.</p> <p>1. Under the general issue, evidence may be given of anything that would simply disprove the allegation controverted.</p> <p>Logs and Logging — General Denial — Matters Provable.</p> <p>2. In an action to foreclose a lien on logs for services, defendant could not, under a general denial, show that plaintiff had become a member in a partnership which previously had agreed to save defendant harmless from labor liens; a general denial giving plaintiff no notice of such a defense.</p> <p>Logs and Logging — Foreclosure of Liens — Evidence—Sufficiency.</p> <p>3. In an action to foreclose a lien on logs for services, evidence held not to sustain a finding that plaintiff had become a member in a partnership which had agreed to save defendant harmless from labor liens.</p> <p>[By whom and for what labor or services logger’s lien may be claimed, see note in Ann. Cas. 19160, 198.]i</p>

<p>New Trial — Verdict—Nonconformity to Pleadings.</p> <p>1. In action to recover $330 remaining unpaid on stoek subscription, wherein defendant pleads fraud and demands judgment for $265 as damages sustained, a verdict for plaintiff for $1 was properly set aside by the trial court, being an impossible verdict under the pleadings.</p>

From Multnomah: George N. Davis, Judge. Department 1. The plaintiff avers in substance that on January 28, 1916, he was employed by the defendant railway company as an assistant foreman of an extra section gang No. 13; that while he was being carried on board of one of its construction trains from The Dalles to a point near Arlington, the train was stalled en route at Turn-water station and while thus at a standstill a freight train overtook it and collided with it,…

From Douglas: George F. Skipworth, Judge. Department 1. This is a suit to foreclose a mortgage. The plaintiff sues as the trustee of the First National Bank of Rose-burg, Oregon, and since the trial in the lower court, that bank has gone into the hands of a receiver, E. R. Bryson, who, in this court, has been substituted as plaintiff, by stipulation of the parties.

From Deschutes: T. E. J. Duffy, Judge. Department 2. Mrs.. J. J. Bailey appealed from a conviction of robbery.

From Multnomah.: Robert Tucker, judge; In Bane. The questions presented in this case are in brief: First, whether an agreement to transfer liens created under the Carey Reclamation Act, and generally known as “Carey Act Liens,” is within subdivision 6 of section 808 of our Code, substantially re-enacting the statute of frauds and providing that an agreement ‘ ‘for the sale of real property, or of any interest therein,” is void unless in writing.

<p>Judgment — Bes Judicata — Identity of Issues — Adverse Possession.</p> <p>1. Decree, in suit to quiet title, that suit be dismissed because plaintiff had neither established a valid contract of sale to his predecessors nor adverse possession for 10 years, held no bar to plaintiff’s subsequent action for possession based on subsequently acquired title by adverse possession.</p> <p>Pleading — Motion to Strike — Admission of Allegations.</p> <p>2. Motion to strike paragraphs of plaintiff’s reply admitted the truth of their allegations for purpose of determining whether the motion was properly granted.</p> <p>Adverse Possession — Interruption—Adverse Decree.</p> <p>3. Decree dismissing plaintiff’s prior suit to quiet title and awarding no affirmative relief did not interrupt his possession of the land to prevent ripening of his title by adverse possession, to be enforced in a subsequent action.</p> <p>ON PETITION FOE REHEARING.</p> <p>Adverse Possession — Continuity of Possession — Recognition of Adverse Title.</p> <p>4. If, at any time prior to expiration of the period of adverse possession, the one in possession recognizes the title which he seeks to defeat by his hostile holding, it operates to break the continuity which is one of the essentials of adverse possession.</p> <p>Adverse Possession — Continuity of Possession — Judgment Awarding Possession.</p> <p>5. Judgment, in action to quiet title, adjudicating possession of land and awarding it to one of the parties, is insufficient to interrupt running of statute; actual delivery of possession being necessary..</p> <p>[As to requisites and necessity of continuity of possession, see note in 13 Am. Dec. 185.]</p>