Volume 91 — Oregon Reports

<p>Exchange of Property — Time for Performance.</p> <p>1. Where contract for exchange provided that time should be of the essence of th.e contract, contention that court failed to do equity in not permitting defendant ample time to work out terms of contract cannot be sustained; many extensions of time having been granted by plaintiff.</p> <p>[As to difference between an exchange of property and a sale, see note in 94 Am. St. Rep. 227.]</p> <p>Specific Performance — -Of Part of Contract.</p> <p>2. A court of equity, having before it the parties and the subject matter, may decree specific performance of a contract so far as the defaulting party can be made to perform.</p>

Prom Lane: Ueorge P. Skipworth, Judge. Department 1. This is an action brought to recover damages for willful trespass, in cutting timber upon the lands of another. The complaint after alleging the corporate character of plaintiff and its ownership of certain lands described therein, which contained merchantable timber growing thereon, avers that the defendant went upon the lands, and cut and hauled away certain timber therefrom, of the value of $163.04.

From Deschutes: T. E. J. Duply, Judge. Department 2. On April 8,1918, the defendant was indicted jointly with G-. W. Conrad by the grand jury of Deschutes County, for the larceny of a steer alleged to have been the personal property of J. T. Houston. The defendant demanded and-was granted a separate trial, as a result of which the jury found him guilty as charged.

<p>Waters and Watercourses — Irrigation District — Legality of Organization — Proceedings to Test — Time.</p> <p>1. Under Laws of 1917, page 773, Section 41, directors of an irrigation district had authority to petition for judicial determination of legality of its organization, and legality of issue and sale of bonds, after expiration of 30 days from time action was taken by County Court organizing district, or after proceedings for sale of bonds.</p> <p>Statutes — Construction—Intention of Legislature.</p> <p>2. The obvious intention of the legislature in a statute should not be defeated by construction.</p> <p>Waters and Watercourses — Irrigation District — Election—Canvass.</p> <p>3. County Court’s eanvass of votes at election on question of organization of irrigation district held not erroneous or informal, there also having been no error or informality in declaring result.</p> <p>Time — Notice—Exclusion of First Day.</p> <p>' 4. Under Section 531, L. O. L., excluding the first day in computation of time for publication of legal notice, and Laws of -1917, page 754, section 19, requiring at least 15 days’ notice, posting on October 14th of notices of bond election to be held October 29th held insufficient.</p> <p>[As to computation of time, see notes in 7 Am. Dec. 250; 46 Am. Rep. 410; 78 Am. St. Rep. 872.]</p> <p>Waters and Watercourses — Irrigation District — Organization—Validity — Determination.</p> <p>5. Improvement company incorporated under Laws of 1911, page 256, held not to have sufficiently complied with Sections 5, 7 and 10, as amended by Laws of 1917, page 132, section 3, of Incorporation Aot, to give it standing as protestant in proceedings by directors of irrigation district to test legality of organization of district, or right to make objections to inclusion of its lands within district..</p> <p>Waters and Watercourses — Irrigation District — Lands Included.</p> <p>6. For lands to be excluded from irrigation district because described in articles of incorporation of improvement company filed pursuant to Laws of 1911, page 256, it must be shown that notice of improvement of such lands, provided for in -Section 5, has been executed and recorded, or that some provision has been made so that lands can be irrigated or are 'entitled to be irrigated.</p>

From Yamhill; Harry H. Belt, Judge. Department 2. Proceedings in mandamus by Arthur Berridge and another, doing business as Arthur Berridge & Co., against W. W. Nickell, County Judge of Yamhill County, and others. From the' judgment rendered, plaintiffs appeal. Reversed, and judgment entered in favor of plaintiffs.

<p>Waters and Watercourses — Irrigation—Suit by Water Users’ Association — Complaint.</p> <p>1. Demurrer to complaint of water users’ association seeking to foreclose lien said to have been given in connection with subscription to its capital stock held properly sustained, where nothing .was stated respecting powers or purposes of plaintiff company indicating it had authority to maintain suit.</p> <p>Waters and Watercourses — Irrigation — Complaint by Water Users’ Association to Foreclose Lien- — Demurrer.</p> <p>2. Complaint of water users’ association seeking to foreclose lien said to have been given in connection with subscription to its capital stock, one allegation being that payment was to consist in applying to the United States government for water rights, and paying to the United States the rates demanded for such privileges, held demurrable as not showing that any privity existed between general government and plaintiff.</p> <p>Waters and Watercourses — Suit by Wateir Users’ Association — Complaint — Demurrer.</p> <p>3. Complaint of water users’ association, to foreclose lien said to have been given in connection with subscription to its capital stock, which did not allege subscriber was owner of land involved so- as to be authorized to impress lien upon it, and did not aver successors in title, if he had any, took with notice of alleged encumbrance, though averring subscription was acknowledged to entitle it to record, held demurrable.</p> <p>Waters and Watercourses — Subscription to Stock of Water Users’ Association — Right to Record.</p> <p>4. Subscription ‘by land owner to capital stock of water users’ association, making assessments lien on land, held not instrument entitled to record so as to import notice to purchasers of land, though its execution was acknowledged.</p> <p>Waters and Watercourses — Subscription to Stock of Water Users’ Association — Record.</p> <p>5. Record of subscription to capital stock of water users’ association in certain book of mortgages did not impart constructive notice of lien arising under subscription to anyone interested in the land, where the instrument was not entitled to record.</p>

From Marion: Percy R. Kelly, Judge. In Bano. On June 14, 1912, for value, the defendant executed to plaintiff its certain standard fire insurance policy for $1,200 on a beach cottage in Gearhart Park. On October 2, 1912, while the policy was in force, the property was totally destroyed by fire.

<p>Appeal and Error — Findings of Court — Conclusiveness.</p> <p>1. Tbe findings of tbe court below stand as tbe verdict of a jury and are conclusive upon Supreme Court, if there was any evidence to sustain them.</p> <p>Attorney and Client — Action for Professional Services.</p> <p>2. In action by attorneys for professional services, held, there was ample evidence to sustain verdict for plaintiffs in tbe District Court and findings of judge in tbe Circuit Court in favor of plaintiffs.</p> <p>Attorney and Client — Becovery of Compensation — Pleading — Variance.</p> <p>3-, Where attorneys in their complaint did not rely specifically upon original contract to pay $100 for professional services, but upon general allegation that they performed services between two dates ‘at the agreed price of $100, it was unnecessary in order to sustain complaint that the price should have been agreed upon beforehand for the services actually rendered or that the entire $100 should be agreed upon at one time.</p> <p>Attorney and Client — Recovery of Compensation — Pleading — Variance.</p> <p>4. In action by attorneys for $50 alleged to be due for professional services, if the original contract was to pay $100 for certain specific services, and afterward that contract was modified, so that a part of the services were waived, and defendant still agreed to pay the $100 for services already performed, that would be sufficient to sustain allegations of the complaint.</p> <p>Attorney and Client — Recovery of Compensation — Pleading — Variance.</p> <p>5. In action in whieh attorneys alleged that they rendered professional services to defendant at agreed price of $100, that only $50 had been paid, and that there was still due $50, there would be no fatal variance because at the time of the final modification $50 had already been paid on the services and the defendant agreed to pay $50 additional.</p> <p>[As to what is a reasonable attorney’s fee in the absence of contract, see note in Ann. Cas. 1916B, 263.}</p>

From Hood Eiver: Fred W. Wilson, Judge. Department 2. Frank Larson presented his petition to the County Court of Hood Eiver County to obtain a license to operate a public ferry from the City of Hood Eiver across the Columbia Eiver to the town of Underwood in the State of Washington for a period of five years, alleging that: “The landing place of said ferry at said City of Hood River will be, during the high water period, at the public road leading northerly from the O.-W. R.…

<p>Executors and Administrators — Action Against Executrix of Agent— Burden of Proof.</p> <p>1. In aetion against exeeutrix, after rejection of claim, to recover money collected by decedent as agent for plaintiff, where proof is conclusive deceased did collect as agent, burden of proof shifts, and it devolves on executrix to allege and prove deceased accounted for all moneys received as agent.</p> <p>Executors and Administrators — Claims—Recovery on Testimony Other Than Claimant’s.</p> <p>2. Where faet that defendant executrix’s decedent made collections for plaintiff as her agent was established by strong independent evidence other than plaintiff's, including decedent’s own signature and receipts for money as plaintiff’s agent, plaintiff could recover from executrix for collections unaccounted for, despite Section 1241, L. O. L., though plaintiff’s claim had been rejected by exeeutrix.</p> <p>[As to statement of claims against estates of decedents, see note in 130 Am. St. Rep. 311.]</p>

From Multnomah: Harry H. Belt, Judge. Department 2. This was an action for false imprisonment brought by plaintiff against defendants, arising out of the commitment of the plaintiff to the Oregon State Insane Asylum.

From Multnomah.: Robert G. Morrow, Judge. In Banc. It is alleged that the plaintiff and the defendant are brother and sister and the only children of George Tobias Myers and Sally S. Myers, his wife; that by their mutual effort and joint labor the father and mother accumulated a large amount of property; that at the time of the making of the alleged agreement and the execution of their respective wills, the parents were the owners in their respective rights of valuable real…

From Multnomah: John P. Kavanaugh, Judge. Department 2. In April, 1916, the defendants were the owners of about 3,500 cords of wood on certain lands in Clackamas County, approximately three miles from Bull Run, on the line of the Mt. Hood Railway.

From Multnomah: Robert G-. Morrow, Judge. Department 2.. This is an action to recover damages for personal injuries sustained by plaintiff while employed in loading grain in the hold of defendant’s steamship, “Colusa,” at Portland, Oregon.

<p>Appeal and Error — Disposition—Affirmance—Evidence.</p> <p>1. Under Article VTI, Section 3, of the Constitution, where Supreme Court cannot affirmatively say there is no evidence to support verdict, it must affirm.</p> <p>Appeal and Error — Review—Verdict on Conflicting Evidence.</p> <p>2. Where evidence for plaintiff was purely circumstantial, though evidence for defendant vigorously disputed plaintiff’s claim, it was for jury to decide facts, and not for Supreme Court.</p>

<p>Wills — Partial Intestacy — Distribution of Corpus of Trust Estate.</p> <p>1. Where will created trust with contingent remainder to testator’s grandchildren or to testator’s brothers and sisters and their issue in the event there are no grandchildren living at the expiration of the trust, the corpus of the estate upon termination of trust, if there are no grandchildren or brothers and sisters, or issue of brothers or sisters, will go to testator’s heirs as in case of intestacy.</p> <p>Judgment — Conclusiveness of Decree — Unborn Persons — Representation.</p> <p>2. In trustee’s action for authority to sell, mortgage, lease or improve real estate, the rule that the interests of unborn persons are bound by the decree of the eourt on the principle that all such persons are represented by living defendants whose interests are similar, as declared by Laws of 1917, page 304, Section 5, applies to every conceivable future interest, including an interest by way of executory devise.</p> <p>Wills — Contingent Remainder — Trusts.</p> <p>3. Where will created a trust with remainder to grandchildren or, if no grandchildren, to testator’s brothers and sisters or their issue, the interest of the grandchildren was a primary contingent remainder, and that of the brothers and sisters a secondary contingent remainder; such remainders being only expectancies and not estates.</p> <p>Trusts — -Management of Estate — Suit for Authority — Sufficiency of Evidence.</p> <p>4. In trustee’s action under Laws of 1917, page 303, Section 1, for authority to sell, mortgage, improve, or lease property, evidence held to show that it was for the best interests of the beneficiaries to have a portion of land sold and to empower trustees to mortgage, lease, and improve other portions of the property.</p> <p>Judgment — Conclusiveness of Decree — Proceedings in Equity.</p> <p>5. It is a general rule, subject, however, to certain well-recognized exceptions, that in a proceeding in equity the interests of parties not before the court will not be bound by the decree.</p> <p>Judgment — Conclusiveness of Decree — Doctrine of Representation.</p> <p>6. In equity where it appears that a particular party not before the court in person is so far represented by others that his interests receive actual and efficient protection, the decree may be held binding upon him.</p> <p>Trusts — Preservation of Property — Statute.</p> <p>7. Laws of 1917, page 303, Section 1, providing that a court of equity may empower trustees to sell, mortgage, improve, lease, or otherwise deal in property, contemplates that expectant interests shall be carefully safeguarded and that the corpus of the estate shall be kept intact until termination of trust; the only change permissible being in the form of the property for the purpose of conserving the principal.</p> <p>[As to instruction of trustee by court in regard to Investment of trust funds, see note in Ann. Cas. 1912A, 637.]</p> <p>-Trusts — Management—Suit for Authority — Service on Unknown Persons — Constitutional and Statutory Provisions.</p> <p>8. Laws of 1917, page 303, Section 1, providing how unknown persons may be made parties defendants to trustee’s proceedings for authority to sell, improve or otherwise deal in real estate, and declaring that such unknown person shall be bound by the decree, is constitutional.</p> <p>Constitutional Law — Vested Interests — Expectancies—Contingent Remainders.</p> <p>9. Contingent remainders being mere expectancies are subject to legislative control prior to the aetual vesting of the interest.</p> <p>Trusts — -Management of Estate — Real Estate — Proceedings for Authority — Action in Rem.</p> <p>10. Trustee’s action for authority to sell, improve, lease and otherwise deal in real estate under Laws 'of 1917, page 303, Section 1, as respects the procedure provided and the constructive service of notice by publication upon nonresident defendants, unknown parties and unknown heirs, is to be classed with actions in rem.</p> <p>[As to control of discretion of trustees by courts of equity, see note in 6 Am. St. Rep. 885.]</p>

<p>Trespass! — Action for Mesne Profits — Option of Plaintiff.</p> <p>1. In aetion to recover mesne profits, plaintiff owner of premises at his option may recover value of crops grown by trespasser, if they exceed rental value, or may recover value of rents and profits converted by trespasser.</p> <p>Action — Misjoinder of Causes — “Injuries to Property.”</p> <p>2. Causes of aetion for damages for conversion of rents, use and profits of farm belonging to plaintiff, to recover damages for conversion, of mowing-machine, to recover damages for unlawful cutting of timber, and to recover damages for permitting noxious weeds to grow held causes of action for injuries to property within Section 94, subdivision 4, L. O. L., therefore properly joined.</p> <p>Appeal and Error — Harmless Error — Striking Cause of Action from Complaint.</p> <p>3. Where there was no misjoinder of causes of action in complaint, permitting its amendment by striking out one of the four causes of action was not error of which defendant could complain.</p> <p>Trespass — Conversion of Rents and Profits of Land — Prior Possession —Evidence of Title.</p> <p>4. Prior possession is itself some evidence of title to land, in an aetion for conversion of its use, rents, and profits, against a wrongdoer claiming no title.</p> <p>Trespass — Conversion of Rents and Profits — Occupation of Land by Defendant — Sufficiency of Evidence.</p> <p>5. In aetion for conversion of rents and profits of farm, for conversion of mowing-machine, etc., evidence held sufficient to sustain finding land was occupied by defendant during years in question..</p> <p>Appeal and Error — Review—Findings of Trial Court.</p> <p>fi. Where there is any evidence to sustain findings of trial court, they will not be disturbed.</p> <p>Trespass — Cutting and. Removal of Timber — Sufficiency of Evidence.</p> <p>7. In action for conversion of rents and profits of farm, for damages from cutting and removal of timber, etc., evidence in relation to nutting of timber by defendant held sufficient to sustain finding for plaintiff.</p> <p>Trespass — Permissive Growth of Weeds — Recovery.</p> <p>8. Owner of farm held not entitled to recover against wrongful occupant for injuries caused by growth of noxious weeds; trespass complained of not being positive, like cutting of timber, but permissive only.</p> <p>Trespass/ — Recovery for Failure to Cut Weeds.</p> <p>9. Owner of farm, having sued its wrongful occupant in trespass only, should not be permitted to recover because defendant did not cut down or remove noxious weeds.</p>

From Malheur: Dalton Biggs, Judge. In Banc. Plaintiff, a corporation, being the owner of a drainage ditch, constructed for the purpose of taking care of the excess water which might accumulate upon the lands of its several stockholders as a result of irrigation, instituted this suit to restrain the defendants from emptying the excess waters arising from the irrigation of their lands, into such ditch.

From Lane: George F. Skipworth, Judge. Department 1. The plaintiff’s grievance is thus stated in his complaint : “That the said defendant is indebted to the plaintiff for work, labor' and services rendered and performed by the plaintiff for the defendant at his special instance and request, on and between the twenty-eighth day of November, 1916, and the first day of February, 1917, at the agreed rate of $75 per month, in the sum of $157.50, and that the whole amount thereof…

Prom Washington: James U. Campbell, Judge. Department 1. Defendant Jacobsen began an action in ejectment against the plaintiff, whereby he sought to recover possession of 8.64 acres of land in Washington County. An answer was filed therein denying the material allegations of the complaint, and affirmatively alleging that his defense, together with certain affirmative relief were based upon facts and conditions cognizable only in a court of equity.

From Multnomah: Robert Tucker, Judge. Department 1. The defendant is the sheriff of Multnomah County.

From Multnomah: Robert Tucker, Judge. Department 1. This is a suit in the nature of a cross-bill to declare canceled a lease from respondent to appellants, and to enjoin the respondent from proceeding in an action at law which had been begun by him to collect rent from the appellants upon such lease. The lease was for a period of ten years and more, and would normally expire the fifteenth day of October, Í921.

From Multnomah: Robert Tucker, Judge. Department 1. After alleging the corporate character of the defendant Hawthorne Dock Company, the complaint in this suit states that on March 26, 1912, Manning purchased from Riggs a Packard truck for $3,815, one half of which was paid in cash on that date and that at the same time, as payment of the balance, Manning made, executed and delivered to Riggs his promissory and contract note, which is set out in full in the complaint.

From Harney: Gustav Anderson, Judge. In Banc. This is a suit to restrain the defendants from using or preventing plaintiffs’ use of 750 tons of hay, and for an accounting for the use and occupation, or rents, issues and profits, for a certain parcel of land redeemed from sheriff’s sale during the time the same was occupied by the purchaser thereunder.

From Multnomah: Robert G. Morrow, Judge. Department 2. Plaintiff’s third amended complaint alleges that on July 13, 1910, the plaintiff entered into a written contract with the defendant, in and by which it agreed to do “all mill work for the seven-story• bank and office building to be erected in Walla Walla, Washington, for the Baker Loan and Investment Company,” on the terms and conditions therein stated, at the agreed price of $7,625; that subsequent to the execution of…

From Coos: James W. Hamilton, Judge. Department 2. Held: after which the votes were counted and the judges and clerks of the election returned the canvass of the vote, together with the ballots cast, to the county clerk.

From Clackamas: James U. Campbell, Judge. In Banc. This is an appeal from a judgment in favor of the defendant in an action for recovery of money on a contract. The plaintiff is a corporation evidently engaged generally in the purchase of municipal bonds, and, incidentally thereto, in preparing the records and proceedings for school districts and municipalities preliminary to the issuing of such bonds. The defendant is a school district in Clackamas County, Oregon.

From Multnomah.: George W. Stapleton, Judge. In Banc. From the record we condense the following statement of facts in this case: The plaintiff had a chattel mortgage on an automobile owned by his brother, to secure the latter’s note for $400, payable on or before two years after August 8, 1916.

From Multnomah: George G. Bingham, Judge. Department 1. On October 31, 1911, the Mt. Scott Park Cemetery Corporation, through its agent H. R. Reynolds, sold and delivered to George Thomson two of its bonds, aggregating $1,000, and twenty shares of its capital stock of the par value of $25 per share. Thomson paid $1,000 for the bonds and stock. According to the testimony of Reynolds the twenty shares of stock were treated as a bonus.

From Multnomah: Gilbert W. Phelps, Judge. Department 2. This is an action to recover the reasonable value of services performed by plaintiff as a lawyer for defendant from September 18, 1912, to March 9, 1916.

From Multnomah.: George N. Davis, Judge. Department 2. This is an action to recover $700, balance of rent for a certain building. The cause was tried before the court and a jury. At the close of all the testimony on motion of counsel for plaintiff the court directed the jury to find a verdict for plaintiff. From a resulting judgment, defendant appeals.

<p>Banks and Banking — “Payment” of Check — Countermanding Check.</p> <p>1. That defendant bank after satisfying itself that check was genuine, and that there were sufficient funds to pay it, stamped it “Paid,” and placed it upon spindle, held not to constitute “payment” which would deprive plaintiff depositor of the right to countermand the check.</p> <p>Assignments — Banks and Banking — “Check”—Liability to Holder.</p> <p>2. The relation between a bank and its depositor being that of debtor and creditor, a check, which is simply an order to pay a named person, does not of itself, where uncertified, operate as a legal or equitable .assignment of any funds in the bank, and the bank, unless it accepts the cheek, is not liable to the holder.</p> <p>Banks and Banking — Countermanding Check — Eight of Depositor.</p> <p>3. The drawer may, if he chooses, countermand eheek, and the bank is obliged to obey the countermanding order, unless it has paid, or has become obligated to pay the cheek.</p> <p>[As to right of drawer of check to stop payment, see note in Ann. Cas. 1914A, 1303.]</p> <p>Banks and Banking — Checks—“Payment”—“Acceptance.”</p> <p>4. “Payment” and “acceptance” are essentially different, since payment is the natural, expected and intended end of a check, while acceptance strengthens the vitality of a eheek, and serves to prolong, rather them to terminate, the life of it.</p> <p>Banks and Banking — Check—“Acceptance.”</p> <p>5. That defendant bank, after satisfying itself that eheek was genuine, and that there were sufficient funds to pay it, stamped it “Paid,” and placed it upon spindle, held not to constitute “acceptance,” in view of Negotiable Instruments Act. Sections 5965, 6018, L. O. L.</p> <p>Bills and Notes — Bill of Exchange — “Acceptance.”</p> <p>6. The acceptance of a bill of exchange is the act by which the drawee manifests his consent to comply with the request contained in the bill of exchange directed to him, and it contemplates an engagement or promise to pay.</p> <p>Banks and Banking — Checks—Acceptance—Formality Required.</p> <p>7. While the acceptance of a bill of exchange on the certification of a check is usually effected in a certain manner, no particular form of word or words is required; any words or expressions intended to be an acceptance by the bank being sufficient.</p> <p>Banks and Banking — Countermanding Check — Duty of Bank.</p> <p>8. Where cheek drawn by plaintiff on defendant bank was" countermanded by plaintiff before defendant had either paid or accepted it, the bank was not liable to the holder, in view of Section 6022, L. O. L., and where bank, in disregard of the countermand, paid the check, it is liable for the amount thereof to plaintiff.</p>

Prom Douglas: James W. Hamilton, Judge. Department 2. This is an appeal from the judgment of the Circuit Court of the State of Oregon for Douglas County, dismissing a writ of review, which shows that in 1914 appellants were, and still are, duly certified public accountants of the State of Oregon, and during said year audited the county books and records of Douglas County, Oregon; that the same was done at the request of the insurance commissioner of the State of Oregon, and…

From Marion: George G. Bingham, Judge. Department 1. This is a suit for divorce by E. J. Nunn against Alice Nunn. From a decree denying divorce, plaintiff appeals. Reversed, and decree entered granting divorce.

From Marion: Percy R. Kelly, Judge. Department 1. On July 1, 1914, the plaintiff entered into a written contract with J. W. Maloney, since deceased, and the other parties named as defendants in this case, whereby he agreed to sell to them the equipment, giving a bill of sale warranting tbe title thereof, and to transfer to them his lease of a theater in Albany. In the contract he made certain representations about the income from the patronage of the place.

<p>Trial — Instructions—Construction of Charge as a Whole.</p> <p>1. That an instruction failed to refer to the necessity of proof that the alleged negligence was the proximate cause of the injury, or that plaintiff must recover on the aets of negligence alleged, was immaterial, where the court correetly instructed the jury on those points elsewhere in the charge.</p> <p>Trial — Instructions Already Given.</p> <p>2. No error was committed in refusing to give instructions as to plaintiff’s contributory negligence, where a part of the charge given covered the same ground. 1</p> <p>Master and Servant — Contributory Negligence — Violation of Statute by Employer.</p> <p>3. Under the Employers’ Liability Act, negligence of an elevator operator employed by a hotel company in oeeupying a dangerous position on the elevator platform was no defense since, by such act, the employer is required to construct the elevator so that there will be no dangerous positions thereon. |</p> <p>[As to operation of elevator as employment within purview of Workmen’s Compensation Act, see note in Arm. Cas. 1917D, 16.], j</p>

From Marion: Percy E. Kelly, Judge. Department 2. At Mt. Angel on November 15, 1916, for an expressed consideration of $1, the defendant acknowledged in writing: “I have this day sold to F. M. Morley 131 bales of my 1916 growth of hops like sample submitted at 10% cents per pound (tare 5 lbs.), delivered f. o. b. cars or boat Mt. Angel, subject to inspection and acceptance.” After the hops were inspected and accepted and the agreed purchase price was tendered, for failure of…

From Coos: John S. Coke, Judge. Department 2. On August 16, 1904, Thomas McGinnis executed his last will and testament, which contains the following provisions material to this opinion: “I give, bequeath and devise to Ivy Condron and J. W. Bennett of Marshfield, Coos County, Oregon, in trust, for the purposes hereinafter specified, all of my property, real and personal and! mixed, of every nature and description whatsoever, of which I may die seized or possessed, subject…

From J efferson: T. E. J. Dueey, Judge. Department 1. This is an action in replevin.

<p>Mortgages — Assumption of Mortgage — Personal Liability of Grantee.</p> <p>1. Where one accepts a deed which not onjly recites the mortgage, but adds that the grantee assumes it, he becomes personally liable to pay the mortgage. :</p> <p>Mortgages — Assumption—Right of Mortgagee to Enforce Liability.</p> <p>2. When mortgagor conveys the property to one who assumes the mortgage, the obligation of the grantee may l}e enforced by the mortgagee in an action at law.</p> <p>[As to assumption of mortgages by grantees, and the liability of such grantees, see note in 78 Am. Dec.i 73.]</p> <p>Mortgages — Assumption by Grantee — Rescission — Acceptance by Mortgagee.</p> <p>3. Grantee’s agreement to assume grantor’s mortgage cannot be rescinded by the parties thereto, after it has been acted upon or accepted by the mortgagee. i</p> <p>Mortgages — Assumption by Grantee — Acceptance of Contract by Mortgagee. 1</p> <p>4. Bringing an action by the mortgagee on the contract, whereby mortgagor’s grantee assumed the mortgage, is an acceptance thereof by him. ,</p> <p>Executors and. Administrators — Filing of Í Claim — Abatement of Action.</p> <p>5. In view of Section 38, L. O. L., providing that no action shall abate by the death of a party where cause of action survives, mortgagee’s failure to present claim against estate of mortgagor’s grantee, who ' assumed mortgage, is no defense in mortgagee’s action against grantee’s executors, where action had been commenced at time of grantee’s death.</p> <p>Guardian and Ward — Filing of Claim — Necessity.</p> <p>6. Where guardian was appointed for grajntee who had assumed grantor’s mortgage, mortgagee, to recover on mortgage against grantee, was not required to present claim to guardian, and could properly bring action directly against ward, who was required to appear by guardian.</p> <p>Mortgages — Answer—Sham Defense.</p> <p>7. In mortgagee’s action against mortgagor’s grantee who had assumed mortgage, defense that grantee did not enter into contract with mortgagee to pay it any sum of money whatever is sham, where record discloses the acceptance of deed wherein grantee assumed mortgage; such acceptance constituting contract to pay mortgage to holder.</p> <p>Mortgages — Assumption of Mortgage by Grantee — Rights of Mortgagee — “Payment.”</p> <p>8. Grantee who has assumed grantor’s mortgage cannot defeat payment of mortgage by tendering the land, for mortgagee cannot be compelled to accept the land in satisfaction, the agreement being for payment, which means the delivery of money to the payee.</p> <p>Mortgages — Assumption of Mortgage by Grantee — Obligation of Grantee.</p> <p>9. Where grantee has agreed to pay grantor’s mortgage, the covenant therein, as distinguished from the separate personal note, is the measure of grantee’s duty; hence, where mortgage does not call 'for payment of more than principal and interest of the note, grantee is not liable for attorney’s fee, although such fees are provided for in the note, which is quoted in mortgagee’s complaint in action to enforce grantee’s liability.</p> <p>Appeal and Error — Disposition—Modification of Judgment.</p> <p>10. Where judgment is not in conformity with the findings of fact, but facts found are sufficient to support a judgment in respondent’s favor, the appellate court will correct the conclusions of law by directing what judgment shall be entered.</p> <p>Mortgages — Assumption of Mortgage — Successive Conveyances — Satisfaction.</p> <p>11. Where successive grantees have assumed mortgage, there can be but one satisfaction, although both grantees are liable.</p>

Prom Coos: George P. Skipworth, Judge. Department 2. The plaintiffs are the heirs at law of Charles H. Merchant, who died testate on July 26, 1906, and for cause of suit they allege that on August 21, 1883, the State of Oregom duly conveyed to Charles H. Merchant a tract of land at the mouth of Coos River in Coos County, containing 21.62 acres; that said lands are all unseated, unimproved, vacant and unoccupied and not in the actual possession oí any person, and have so been…

<p>Highways — Proceedings to Establish Countyj Road — Notice — Sufficiency.</p> <p>1. Where petition for county road, irrespective of name of S., who made affidavit as to qualification of petitioners and signed petition, was subscribed by more names than required by Section 6279, L. O. L., it, when accompanied by proof that notices signed by such freeholders had been posted as required by Section 6280, conferred jurisdiction on the County Court to proceed notwithstanding that S. did not sign notices. S</p> <p>Highways — Petitioners.</p> <p>2. It is the duty of the County Court upon the presentation of petition for a county road to ascertain if the same is signed by the requisite number of qualified petitioners, and^ although a name may be rejected if a sufficient number of names ] of qualified petitioners remain on the petition, the presence of rejected name will not invalidate the petition. 1</p> <p>Highways — Establishment—Return to Writ of Review — Validity.</p> <p>3. On writ of review to test establishment of a county road, review is on the record disclosed by the return to the writ, and the return, when duly made, will be taken as verity.</p> <p>Highways — Establishment—Notice.</p> <p>4. The fact that, according to one date in affidavit of posting of one of notices for county road, a clerical error, such notice might have remained posted for 30 days longer than required, would not detract from the proof or finding of County Court to effect that notice was posted continuously for 30 days prior to presentation of petition for road.</p> <p>Highways — Statute—Repeal.</p> <p>5. Laws of 1913, page 697, providing that County Court, after filing of report of surveyor or viewers of road, shall fix a time for hearing report and cause notiee to be given owners of lands to be taken for such road, was repealed by Laws of 1917, page 588.</p> <p>Statutes — Construction—Change of Established Procedure.</p> <p>6. The established practice under a statute should not be changed except by the clearly expressed will of the lawmakers.</p> <p>[As to repeal of statutes by implication, see notes in 14 Am. Dec. 209; 88 Am. St. Rep. 271.].</p> <p>Highways — Establishment—Dismissing Wilt of Review.</p> <p>7. Where record does not diselose that County Court exercised its functions erroneously or exceeded its jurisdiction to the injury of any substantial right of the plaintiff in ordering establishment of county road in question, judgment dismissing writ of review was proper, in view of Section 605, L. O. L.</p>

From Marion: Percy R. Kelly, Judge. Department 2. R. E. Jones is the son of the defendant M. L. Jones. On July 27, 1916, about 2 p. m. the plaintiff alighted from the Chemeketa Street ear running east and west on State Street in the City of Salem, at the intersection of State and Commercial Streets.

From Clatsop: James A. Eakin, Judge. Department 1. This is an action brought by L. H. Turner against A. E. Cyrus.

From Multnomah: Bobert Gr. Morrow, Judge. Department 2. This is a suit to cancel a street assessment charged against certain lots of plaintiffs for the improvement of Milwaulde Street from Holgate Street to Nehalem Avenue. From a decree in favor of defendants, dismissing the suit, plaintiffs appeal. A former suit by other property owners with reference to the same improvement was passed upon by this court in the case of Sherrett v. City of Portland, 75 Or. 449 (147 Pac. 382).

From Lane: George F. Skipworth, Judge. Department 1. This is a suit strictly to foreclose a contract whereby the plaintiffs, husband and wife, agreed to convey land to the defendant Hala Rice Rodgers. It is not necessary to say more about the defendant First National Bank than that it was the depository of the escrow involved in the transaction.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. This is an action for damages. In brief, the plaintiffs’ cause of action, as gleaned from the complaint, is about as follows: Early in the month of May, 1912, the defendant Watson came to the town of North Bend, Washington, with a Percheron stallion belonging to the defendant A. C. Ruby & Company, for whom he was an agent, employed to negotiate a sale of the horse.

From Multnomah: Robert Tucker, Judge. Department 2. The facts involved upon this appeal are as follows : On the fifth day of July,-1911, the plaintiff filed a suit in the Circuit Court for Multnomah County, Oregon, against this defendant for a divorce, alleging that she had been married to defendant in the year 1900, and that her daughter Roberta, was then ten years of age. Personal service was had upon defendant in the same county.

From Jackson: Frank M. Calkins, Judge. In Banc. A criminal complaint was filed against tbe defendant in tbe Justice’s Court of Medford District for Jackson County, in wbicb it was charged: ‘ ‘ That the said H. Cox on the 7th day of February, 1918, in said County of Jackson, and State of Oregon, then and there being,- did then and there unlawfully and wrongfully possess intoxicating liquor, to wit: 12 quarts of whisky, contained in 12 quart bottles. * * ” Whereupon he was…

From Marion: George G. Bingham, Judge. Department 1. This is an equitable proceeding, wherein the complaint alleges that on January 26, 1913, plaintiff entered into a contract with one C. W. Brasher for the purchase of a tract of land described as follows: “Beginning at the north comer of Lot One of the Ewald Fruit Farms in township 8 south, range 3, west of the Willamette Meridian, Marion county, Oregon; thence south 32 degrees 45 minutes east 4.64 chains along, the east…

From Multnomah: Edwin Y. Littlefield, Judge. Department 1. This is an aetion for damages for personal injuries received by the plaintiff in boarding a street-ear at the intersection of Killingsworth Avenue and Delaware Street, in Portland.- The complaint alleges, in substance, that the plaintiff took his station at a regular stopping place for receiving and discharging passengers, and as the train approached, it slowed down for the purpose of allowing plaintiff to board it;…

<p>Principal and Surety — Notice to Agent.</p> <p>1. Where a written notice of a subcontractor’s failure to carry out his agreement was made to the agent of the surety company, it must be presumed that the agent performed his duty and actually forwarded the notiee to the home office.</p> <p>Principal and Surety — Contract — Notice of Principal’s Default— Method of Notice.</p> <p>2. Assuming that notiee of principal’s failure to carry out his agreement reached surety company at its home office in proper time, any difference in mere manner of transmitting it from method provided in contract was merely technical and trivial, and without injury or prejudice to defendant surety company.</p> <p>Principal and Surety — Notice of Default — Waiver by General Agent.</p> <p>3. One who, under Section 4675, L. O. L., is the only authorized general agent and representative of a foreign surety company, may waive or qualify a provision in the surety contract providing for service of notice of principal’s default directly upon the surety company, and have such notices sent to himself as agent, notwithstanding a contract provision against waiver, except by writing executed by president or vice-president under corporate seal.</p> <p>[As to discharge of surety on fidelity bond by failure of employer to notify surety of delinquency of employee, see note in Ann. Cas. 1910D, 1286.]</p>

<p>Boundaries — Meander Lines — Lake.</p> <p>1. The fact that insignificant points of land are left between meander line and water will not impeach a survey, or confine an adjacent upland owner within limits indicated by meander lines, but waters of lake itself will constitute the true boundary.</p> <p>[As to waters and watercourses as boundaries, see notes in 30 Am. Dec. 286; 27 Am. St. Rep. 56.]</p> <p>Navigable Waters — Accretion—Rights of Land Owner.</p> <p>2. To enable a land owner to acquire title to land between meander line and water’s edge, recession of water must be gradual and imperceptible.</p> <p>Navigable Waters — “Accretion”—“Reliction.”</p> <p>3. Technically speaking, land uncovered by a gradual subsidence of water is not an “aeeretion,” but a “relietion,” but the terms are often used interchangeably, and law relating to accretions applies in all its features to relictions.</p> <p>Navigable Waters — Reliction—“Imperceptible.”</p> <p>4. Reliction is “imperceptible” within rule relating to acquisition of title, when it is not discernible in its progress, though fact that there has been an increase may be perceptible year by year or at shorter intervals.</p> <p>Navigable Waters — “Riparian Rights.”</p> <p>5. “Riparian rights” are not a mere shadowy privilege, but a substantial property right, the right of access to and the usufruct in the water.</p> <p>Navigable Waters — Reliction—Evidence.</p> <p>6. In an action involving title to land once covered by water, evidence held insufficient to show that recession of water was due to artificial diversion of stream® emptying into the lake.</p>

<p>Criminal Haw — Change of Venue — Prejudice.</p> <p>1. In a prosecution for murder of a Chinaman by other Chinamen, held, under the evidence, that it was not error to refuse a change of venue on the ground of prejudice.</p> <p>[As to change of venue, see note in 74. Am. Dec. 241.]</p> <p>Criminal Haw — Codefendant as Witness — Effect of Separate Trial.</p> <p>2. Section 1531, L. O. L., requiring the discharge of a defendant jointly indieted with another in order to be made a competent witness, requires that where several joint defendants are on trial at the same time, and the state has not produced sufficient evidence to put any one of them on his defense, sueh codefendant shall be discharged, except where each of the codefendants has been granted a separate trial.</p> <p>Criminal Haw — Harmless Error — Instruction.</p> <p>3. An instruction that flight and concealment might be taken into consideration on the question of guilt while erroneous was harmless, in view of other evidence, showing defendant’s guilt.</p> <p>Criminal Haw — Demonstrative Evidence — Revolver.</p> <p>4. In a prosecution for murder, an empty revolver found near defendant’s place of concealment carrying bullets of the same caliber as those found in the body of deceased was admissible in evidence.</p> <p>Criminal Haw — Jurisdiction—State and Federal Courts.</p> <p>5. That a murder is committed on a sidewalk in front of a building used by the United States government for a postoffice and land office does not deprive the state courts of jurisdiction, the United States not having exclusive jurisdiction over adjacent streets.</p>

<p>Homicide — Instructions—Conspiracy.</p> <p>1. In a prosecution for homicide where several joined in shooting at deceased, an instruction that, if the killing was the result of a conspiracy, all who participated were equally guilty, held proper in view of the faets.</p> <p>[As to what constitutes conspiracy and evidence thereof, see note in 3 Am. St. Rep. 474.]</p> <p>Criminal Law — Instructions—Flight.</p> <p>2. In a prosecution for homicide, instructions that flight and concealment could be considered on the question of guilt, but that flight of itself was not sufficient evidence of guilt, etc., held correct when considered together.</p>

<p>Homicide — Evidence—Sufficiency.</p> <p>1. Circumstantial evidence, together with direct evidence of defendant’s flight and concealment, held sufficient to establish that defendant was one of several conspirators who planned deceased’s murder, and to sustain a verdict of murder in the second degree.</p> <p>[As to necessity that circumstantial evidence to convict of crime must exclude every reasonable hypothesis except guilt of the defendant, see note in Ann. Cas. 1913E, 428.]</p> <p>Criminal Law — Instructions—Evidence—Plight and Concealment.</p> <p>2. An instruction to consider evidence of defendant’s flight and concealment immediately after the murder, as bearing on the question of guilt, held correct when construed with a later instruction that flight and concealment were not alone sufficient to establish guilt.</p>

From Tillamook: George E. Bagley, Judge. In Banc. On the eleventh day of April, 1917, plaintiff began an action to recover a balance alleged to be due upon an account, together with interest thereon from an average date.

<p>Principal and Agent — Contracts—Commissions.</p> <p>1. A contract giving plaintiff an exclusive sales agency with exceptions held to entitle plaintiff to commissions on sales made by defendant direct to the trade unless the sales fell within the exceptions.</p> <p>[As to general value respecting the authority of agents, see note in 16 Am. St. Rep. 493.]</p> <p>Principal and Agent — Contracts—Construction by Parties.</p> <p>2. Where defendant acquiesced in plaintiff’s claim to commissions on sales made by defendant direct to the trade, held, that the contract giving plaintiff an exclusive sales ageney with exceptions should be construed entitling plaintiff to such commissions.</p> <p>Contracts — Construction—Divisible Contracts.</p> <p>3. Whether a contract is entire or severable is a question of intention to be determined from the language used and the subject matter.</p> <p>Principal and Agent — Contracts—Commissions.</p> <p>4. A contract giving plaintiff an exclusive sales ageney with exceptions held tq entitle plaintiff to commissions on sales made by defendant direct, though plaintiff did not prove complete performance of the contract which required plaintiff to canvass the trade, where the direct sales were not made to customers whom plaintiff failed to canvass and did not fall within the exceptions.</p> <p>ON PETITION EOR REHEARING.</p> <p>Trial — Instructions—Requests—Applicability to Issues.</p> <p>5. No claim being made -by plaintiff for commissions on account of orders taken by it, but the only claim being by defendant for damages because they were not delivered to it to fill, there was no error in refusing defendant’s requested instruction that plaintiff was not entitled to commissions thereon, and giving, instead, one merely as to defendant’s right to damages.</p> <p>Principal and Agent — Termination of Agency — Subsequent Duty of Agent.</p> <p>6. Defendant, on termination, by limitation, of plaintiff’s agency, having written that it was not then in a position to renew it, but would try to fill all orders sent, there was no contract, and plaintiff was under no duty to send it any orders thereafter taken by plaintiff.</p>

<p>Contracts — Nature of Obligation.</p> <p>1. A “contract” is an agreement between two or more parties, competent for that .purpose, upon a sufficient consideration, to do or not to do a particular thing, which lawfully may be done or omitted.</p> <p>Contracts — Not to Engage in Business — Validity.</p> <p>2. It is lawful for a concern selling its business and goodwill, or for an individual selling his interest either in a firm or corporation, to agree that seller will not engage in a specified business and will'refrain for a specified time from certain things financially detrimental to the buyer.</p> <p>Contracts — Past Consideration.</p> <p>3. Plaintiffs having irrevocably agreed to buy stock, subsequent agreement not to engage in competing business “in consideration of your purchase of the interests of ourselves in the company” was not enforceable.</p> <p>Evidence — Complete Contract — Varying by Parol.</p> <p>4. Contract for sale of stock, opening with statement, made by seller and accepted- by plaintiffs, “This confirms our verbal agreement, which we now understand as follows,” held to evidence a completed transaction, which could not be varied by parol, in view of Section 713, L. O. L.</p> <p>Corporations — Contract of Stockholder — Liability of Corporation.</p> <p>5. If one operating for himself makes a covenant in his own name not to compete with his successors, it does not bind the corporation of which he is a stockholder.</p> <p>Injunction — Enforcement of Negative Covenant.</p> <p>6. Injunction is the proper remedy to enforce negative covenant not to engage in competing business.</p> <p>Specific Performance — Indefinite Contract.</p> <p>7. The eontraet itself must be specific enough to serve as the foundation of a specific decree to authorize specific performance.</p> <p>[As to specific performance of contracts, for the sale of corporate stock, see note in 135 Am. St. Kep. -689.]</p> <p>Specific Performance — Indefinite Contract.</p> <p>8. Agreement not to enter into any organization in the same line of business in certain territory whereby interest of company would be interfered with held too indefinite to warrant specific performance.</p>

<p>Public Lands — Homesteads—'Who may File.</p> <p>1. Under aet of Congress ('Comp. Stats., § 4530), providing that no person who- is a proprietor of more tban 160 aeres of land shall aequire any right under homestead laws, man disqualified to make homestead entry by reason of ownership of too much land may qualify by disposing of surplus portion by gift or by sale, even though purpose of transaction is to qualify himself, provided conveyance is final and in good faith.</p> <p>Public Lands — Homesteads—Who may File.</p> <p>2. A person disqualified to file on a government homestead by reason of having too much land cannot qualify himself by a transfer of legal title, unless parties intend that really beneficial ownership shall pass permanently.</p> <p>Public Lands — Homestead—Who may File — Questions of Fact.</p> <p>3. Where one, disqualified to file on government homestead by reason of owning too much land, conveys legal title to'another of Surplus owned by him, whether or not transaction is final and in good faith, so as to give him a right to file, in any given ease, is a question of fact to be decided upon evidence, both direct and circumstantial.</p> <p>Public Lands — Homesteads—Who may File — Qualification.</p> <p>4. In action which involved plaintiff’s right to file on public lands, evidence held sufficient to sustain finding that plaintiff was not qualified to file by reason of owning more than 160 aeres, in that transfer of legal title of part of land owned by him was not a bona fide transaction'intended to pass a real beneficial interest.</p> <p>Public Lands — Decisions of Land Department — Conclusiveness.</p> <p>5. In absence of fraud, a decision of Land Department in contest cases, based on questions of fact, is final and binding upon courts, and cannot be disturbed on account of weight of evidence, or because court itself upon same evidence would have reached a different conclusion.</p> <p>[As to when the action of the land office is conclusive, see note in 20 Am. Dec. 273.]</p>

<p>Brokers — Contracts—Memorandum—Sufficiency.</p> <p>1. A memorandum held insufficient, under Section 808, L. O. L., on which to base an action for commissions earned by plaintiff as a broker in sale of real estate, in failing to state consideration.</p> <p>[As to supplementing brokerage contract by proof of oral collateral agreement, see note in Ann. Cas. 1914A, 458.]</p>

<p>From Coos: John S. Coke, Judge.</p> <p>Department 1.</p> <p>George W. Bryant, the plaintiff, owned an automobile. Allen R. Panter is a son of his codefendant W. R. Panter. Bryant alleges in his complaint that in June, 1915, the Panters agreed to pay him $1,500 for the automobile, which according to the understanding of all the parties was to be delivered to Allen R. Panter ; that $500 of the purchase price was payable in advance “and the balance on or before one year after delivery of said automobile, with interest thereon at the rate of 8 per cent per annum, for which said deferred payment the defendants expressly agreed to give plaintiff their joint and several promissory note.”</p> <p>The complaint states that the plaintiff delivered the automobile to Allen R. Panter on June 19,1915, in accordance with the agreement; that the sum of $500 was paid to plaintiff “but that the defendants nevei executed the promissory note as agreed upon by the parties or at all”; that the “sale was made by plaintiff in reliance upon express promises of the defendants to be jointly and severally liable to plaintiff; and that the whole sum of $1,000 with interest is therefore due. This action to recover the balance due on the purchase price of the automobile was commenced on July 3,1916, against Allen R. Panter and W. R. Panter.</p> <p>The defendants joined in an answer which, besides denials, contains an affirmative defense to the effect that the promise made by "W. R. Panter is unenforceable for the reason that it was an oral promise to pay the debt of Allen R. Panter.</p> <p>A trial resulted in a verdict and judgment against both defendants for $1,000 with interest at 8 per cent per annum from June 19, 1915. The defendants appealed.</p>

<p>Insurance — Fire Insurance — Burden of Proof.</p> <p>1. In action on fire insurance policy, insured has burden of proving compliance with policy that formal proof of loss in strict compliance with policy has been prepared, and that actual damages have been suffered by the fire within the terms of the contract.</p> <p>[As to burden of proof of breach of condition subsequent in fire insurance policies, see note in Ann. Cas. 1913D, 829.]</p> <p>Insurance — Fire Insurance — Action on Adjustment — Burden of Proof.</p> <p>2. In aetion against insurer on an adjustment and agreement to pay specified amount, where insurer admits adjustment and agreement to pay, but claims that adjustment was induced by fraudulent representations by insured, insurer has burden of proving facts sufficient to overturn adjustment.</p> <p>Insurance — Fire Insurance — Adjustment—Fraudulent Misrepresentations.</p> <p>3. Fire insurance company, to avoid adjustment and agreement to pay insured upon the ground that adjustment was made upon insured’s false statements in proof of loss, must not only prove that statements in proof of loss were false, but that statements were fraudulently made, and actually induced insurer to make adjustment.</p> <p>Pleading — Reply—Departure—Action on Insurance Adjustment.</p> <p>4. In action against fire insurance company upon adjustment and agreement to pay insured, where defense was that adjustment was procured by false statements in proof of loss that property was not otherwise insured, reply, admitting duplicate insurance and alleging knowledge and .waiver on part of insurer, was not a departure from the complaint; it being unnecessary in action on adjustment to plead waiver in complaint.</p> <p>Insurance — Fire Insurance — Action upon Adjustment — Evidence of Loss — Conclusiveness of Proof of Loss.</p> <p>5. In aetion against insurer upon adjustment and agreement' to pay fire loss, it was not error to overrule defendant’s objections to evidence as to value of the building and the amount of damage caused by the fire, where'the objection was based on the ground that the matter was “concluded by the proof of loss,” and according to plaintiff’s theory of the case, as presented by Ms pleadings and evidence, the statement in the proofs of loss as to amount of loss suffered was put there by defendant’s adjuster, without plaintiff’s knowledge.</p> <p>Insurance — Fire Insurance — Adjustment—Fraudulent Representations.</p> <p>6. Insured was not precluded from recovering up on’adjustment and insurer’s agreement to pay, by reason of false statement as to other insurance on property, inserted by insurer’s adjuster in proof of loss which insured signed, where insured had no intention to deceive and insurer had full knowledge of the real facts and knew that statements were not true.</p> <p>Trial — Instructions.</p> <p>7. Error cannot be based upon the refusal of an instruction, unless the whole instruction as applied to the case is good law and accurately stated.</p> <p>Insurance — Fire Insurance — Question of Law — Materiality of Provision in Proof of Loss. ,,</p> <p>8. The materiality of a representation in proof of loss is a question for the court.</p>

From Yamhill: Harry H. Belt, Judge. Department 1. M. Ford commenced an action against F. B. Tompkins in a Justice’s Court and caused a writ of attachment to be placed in the hands of E. U. Henderson as constable for service. Henderson executed the writ on September 7, 1916, by levying upon a crop of oats as the property of F. B. Tompkins. The constable caused the crop to be threshed and when threshed the oats amounted to 552 sacks.

<p>Fraudulent Conveyances — Conveyance Pending Litigation — Relief to Creditor.</p> <p>1. Where son, after actions had been brought against him and his father for death resulting from collision between his father’s automobile, which the son was driving, and another ear, conveyed land to his father, without fraudulent intent, to reimburse his father for repairs to his car caused by the collision, and to provide for expense of employing attorneys and defending actions brought, it was proper, the transaction being bona fide, but the consideration inadequate, to treat the conveyance as a mortgage, and permit the property to be sold and the proceeds applied, first, upon the amount due from the son to the father, and, seeond, upon the judgment in the death action and the costs and disbursements in suit to set the conveyance aside.</p> <p>Fraudulent Conveyances — Conveyance Pending Litigation.</p> <p>2. In such case, the proceeds were properly applied to paying th.e father an amount expended for repairs of the automobile, and a further sum for depreciation thereof.</p> <p>Fraudulent Conveyances — Conveyance Pending Litigation — Attorney’s Fees.</p> <p>3. In such case, the father was also- entitled to have paid him from the proceeds the attorney’s fees and expenses paid out for his son’s benefit in the actions at law.</p> <p>Fraudulent Conveyances — Suspicious Circumstances.</p> <p>4. When a. deed is sought to be set aside as voluntary and fraudulent against creditors, and there is not sufficient evidence of fraud to induce the court to avoid it absolutely; but there are suspicious circumstances as to the adequacy of consideration and fairness of the transaction, the court will not set aside the conveyance altogether, but permit it to stand for the sum already paid.</p> <p>Fraudulent Conveyances — Moral Consideration.</p> <p>5. Where son, after actions had been brought, against him and his father for death resulting from collision between his father’s automobile, which the son was driving, and another ear, conveyed land to his father, to seeúre him against expenses of his own as well as the son’s litigation resulting from the accident, the father was not entitled to be reimbursed from the proceeds of such property for the attorney’s fees and expenses paid in the actions on his own account, since, if there was any obligation on the part of the son to reimburse his father for these sums, it was, at best, only a moral obligation.</p> <p>[As to when voluntary conveyances are subject to attack as fraudulent to creditors, see note in 14 Am. St. Rep. 739.]</p> <p>Interest — Advances for Attorney’s Fees.</p> <p>6. Where sums paid out for attorney’s fees, etc., on behalf of grantor by grantee in claimed fraudulent conveyance, which the court holds in fact tona fide, but on insufficient consideration, bad not. all actually been paid at the time suit to set aside the conveyance was tried, interest was not allowable on such part of the grantee’s claim against the property.</p>