Volume 92 — Oregon Reports

From Benton: James W. Hamilton, Judge. Department 1. This is a suit in partition in which it is agreed that the plaintiff owned one third and the defendant two thirds of a certain tract of land. The contention before us is about the division made by the referees.

From Multnomah: George N. Davis, Judge. Department 2. Alice M. Graham is the surviving widow and sole heir of E. P. Graham, 'deceased, and administratrix of his estate. The decedent and the defendant A. S. Graham were brothers and entered into an oral agreement of partnership about April 1,1887. At that time they leased and operated some farming lands in Columbia County, known as the McGuire place.

From Multnomah: William N. Gatens, Judge. Department 2. This is an appeal by the plaintiffs from an order of the Circuit Court setting aside a verdict and granting a new trial.

From Polk: Harry H. Belt, Judge. Department 1. This suit to quiet title was brought by A. R. Richardson and his wife against Polk County and it involves a road. The first question in dispute is whether the road is a legally existing county road; and if it is, then the next question is whether the line along which the plaintiffs commenced to build a new fence is inside of the road.

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. Plaintiff appeals from a judgment sustaining a demurrer to his complaint. The action is brought to recover damages for fraud and deceit.

From Multnomah: Edwin V. Littlefield, Judge. Department 1. On August 10, 1916, plaintiff presented to the executor of the estate of Alice Edna Wemple, deceased, her claim against the same, for borrowed money, in the sum of $900 with interest thereon. The statement of the claim disclosed upon its face that the money had been borrowed on April 5, 1906, and that a payment of $50 had been made upon the debt, the date of which did not appear therein.

From Lane: George F. Skipworth, Judge. Department 1. The plaintiff bought a stock of hardware in bulk from Martin Svarverud, doing business as the Svarverud Hardware Company. Subsequently Munnell & Sherrill, the defendants, obtained judgment on their own and an assigned claim against Svarverud and were about to seize the stock in the hands of the plaintiff on execution, when he brought this suit to enjoin the levy.

From Multnomah: Robert Tucker, Judge. Department 2. This is a contest brought by the residuary legatee, and principal beneficiary, of a former will, against a later one revoking the first and leaving the deceased intestate as to the property, which had previously been given to the contestant, thereby leaving the same to be distributed among the relatives of the deceased, according to law. The' deceased woman, Bridget Ginty, died on May 26, 1915.

From Multnomah: William N. Gatens, Judge. ’ Department 2. This is a contest concerning the validity of a will executed by Anna E. Dale, deceased.

From Clackamas: James TJ. Campbell, Judge. Department 1. On December 21, 1914, John T. Drake executed a deed purporting to convey a farm, which he owned, to his son John H. Drake. The deed was recorded at the instance of John H. Drake on January 5, 1915. This suit resulted in a decree annulling the deed on the ground that it had never been delivered by the' grantor. John H. Drake appealed.

From Multnomah: Robert Tucker, Judge. Department 2. This is an action against the defendant, a public service corporation, to recover treble damages under section 67 of the Public Utilities Act (Laws 1911, Chap. 279, page 483), which was tried before the Circuit Court without a jury,.resulting in numerous findings of fact based upon which judgment was rendered in favor of the defendant.

From Multnomah: William N. Gate ns, Judge. Department 2. While the plaintiff was a resident of Alaska, in the vicinity of Iditarod, insanity proceedings were instituted against her in the probate court for Otter Precinct, Territory of Alaska, Fourth Division, based upon which her case was brought before that court and “at a trial by jury” she appeared in person and by two attorneys appointed by the court to represent her.

From Multnomah: William N. Gatens, Judge. Department 1. This is an action wherein the plaintiff seeks to recover upon an accident insurance policy, for the death, of her husband, who was shot and killed by one Emil Spranger. The sole issue developed by the pleadings is as to whether the death was caused by accident.

From Multnomah: John P. Kavanatjgh, Judge. Department 1. The principal allegations of the complaint are here set down: “That on or about the 14th day of March, A. D. 1907, the defendant made his check in writing, dated on the said 14th day of March, 1907, payable to the order of the plaintiff herein, and delivered the same to this plaintiff, which said check is in words and figures following, to wit: “ ‘No. 680 Portland, Ore., March 14, 1907. ‘ ‘ ‘ Merchants National Bank of…

<p>ON MOTION TO DISMISS.</p> <p>Appeal and Error — Assessments—Payment Under Protest — Effect.</p> <p>1. After certain property was sold under a sewer assessment the owner sued to quiet title, claiming that the assessment was void. The court decreed that defendant had an interest by reason of the sale whieh would mature in the absence of redemption within three years, and the owner appealed. Pending appeal, fearing the time for redemption would expire, he paid the assessment under protest, expressly reserving all rights arising from the appeal. Held, the payment was not a waiver, and furnished no ground for dismissing the appeal.</p> <p>ON THE MEiRITS.</p> <p>Municipal Corporations — Sewers—Assessment—Benefit—Necessity.</p> <p>2. Land which is not, and cannot be, drained by a sewer cannot be assessed therefor.</p> <p>Municipal Corporations — Sewers—Assessments.</p> <p>3. Under Portland City Charter, Section 389, a property owner cannot be assessed for a sewer unless he receives a special benefit therefrom.</p> <p>Municipal Corporations — Sewers.</p> <p>4. Under Portland City Charter, Section 389, an assessment for a sewer was void, where sewer was laid through private land of another, and land owner could not use it without being a trespasser.</p> <p>Quieting Title — Matters Occurring After Action Brought.</p> <p>5. In action to quiet title, title is to be determined by conditions as they existed at time issues were made.</p> <p>Quieting Title — Scope of Inquiry.</p> <p>6. A special assessment levied for a municipal improvement may be questioned and tested in a’ suit to quiet title to real property assessed.</p> <p>Municipal Corporations — Improvements—Assessments—Sale—Right of Purchaser.</p> <p>7. Purchaser at sale for street assessment, in absence'of fraud, is governed by rule of caveat emptor, and after purchase, if it transpires that assessment is void, such purchaser obtains no title to or equity in land purchased.</p> <p>Pleading — Supplemental Pleading — Matters Occurring After Issue Joined.</p> <p>8. In suit to quiet title, where purchaser at sale for street assessment was a defendant, assessment being void at time made by reason of sewer being laid through private property, subsequent proceedings by city for obtaining an extension of street where sewer was laid might form basis for a reassessment, but could not validate assessment made prior to suit; subsequent matter not being brought into suit by any supplemental pleading.</p> <p>Quieting Title — Burden of Proof.</p> <p>Sh In suit to quiet title, burden was upon defendant, who purchased the land at a sale for street assessment, to allege and prove his interest in the property.</p> <p>[As to right to maintain suit to remove lien of special assessment as cloud on title, see note in Ann. Cas. 19T4A, 888.]</p>

From Multnomah: John P. Kavanaugh, Judge. Department 1. On September 1,1917, plaintiff began this action in tbe District Court of Multnomah County, to recover from the defendant $30.90, upon an account stated The defendant answered, denying tbe material allegations of tbe complaint, and also pleaded affirmatively three separate counterclaims.

From Multnomah: Robert Tucker, Judge. Department 2. On March 17, 1911, plaintiffs executed a written lease of a certain building known as No. 201 and 201% East Twenty-fourth Street, and all buildings on Lot 18, Block 38 of Sunnyside, in the City of Portland, to Samuel H. Smith, Chester A. Smith and Otis S. Smith, partners doing business as S. H. Smith & Sons, for a period of five years from April 1, 1911, at an agreed rental of $50 per month, payable in advance.

From Multnomah: John P. Kavanatjgh, Judge. Department 2. The defendant, a naturopathic physician, was indicted, tried and convicted under' the provisions of Section 2077, L. O. L., which is as follows: “If any male person over the age of eighteen years shall, in such manner as does not make the act rape, carnally know any female person of previous chaste and moral character, who is over the age of sixteen years and under the age of eighteen years, and is not his lawful wife,…

From Multnomah.: George N. Davis, Judge. Department 2. On January 27, 1916, plaintiff filed its complaint against the defendants in the Circuit Court of Multnomah County, and after the necessary corporate allegations avers that about January 21,1915, the defendant, Pacific Bridge Company, entered into a written contract with the plaintiff, Multnomah County, for the improvement of that portion of the Columbia River Highway known as Section D, in accord with the plans and…

<p>Appeal and Error — Failure to File Brief Within Time — Dismissal of Appeal.</p> <p>1. Where no brief was filed by appellant within twenty days after service of copy of abstract, as required by Rule 8 (173 Pac. viii), and no reason is advanced for the delay, appeal will be dismissed on motion of respondent.</p>

From Yamhill: Harry H. Belt, Judge. Department 2. The defendant is a municipal corporation.

<p>Appeal and Error — Undertaking—Service—Evidence.</p> <p>1. Notice of appeal was served and filed in the Circuit Court on July 28th. On August 1st an undertaking Was filed, with the certificate of the return of the sheriff indorsed thereon, to the effect that it was received on July 31st, and served on respondent August 1st, together with a copy of the notice of appeal. The sheriff while making an affidavit that he served no papers pertaining to the appeal, after service of notice of appeal on July 28th, deposed that on July 28th appellants’ attorney placed in his hands some papers relating to the appeal for service, and that he immediately served the same, and that, if an undertaking was delivered to him, he served it. Affidavits of the agent of the surety on the undertaking and witnesses Bhowed that it was signed July 28th, although it erroneously bore the date July 30th, and that it was delivered to the sheriff for service o.n July 28th. Held, that the return of service of the undertaking, being of record, was sufficient, as it was not overcome by the affidavits.</p> <p>Appeal and Error — Review—Merits.</p> <p>2. On a motion to dismiss defendants’ appeal, a question as to their dealing with the property in suit involves the merits, and cannot be considered.</p> <p>ON THE METtlTS.</p> <p>Mortgages — Sale of Land — Representations—Means of Knowledge.</p> <p>3. Where defendants, before making a contract for land, had received and relied upon favorable statements of their friend, this amounted to making an independent investigation, and where the means of knowledge were at hand for defendants’ inspection during a period of three years between the original contract and the new contract embodying the note and mortgage sought to be foreclosed, defendants are not entitled to relief on the ground of fraudulent representations.</p> <p>Appeal and Error — Review—Findings of Trial Court — Conclusiveness.</p> <p>4. Findings of the trial judge upon the defense of fraudulent misrepresentations of the quality and character of lands sold, based on evidence of witnesses who testified before the judge, resulting in a substantial conflict with respect to material issues, must be given great weight, particularly where the judge visited and inspected the premises.</p>

Original proceeding in mandamus by Karl Her-bring against. George M. Brown, Attorney General of the State of Oregon. Demurrer to the petition was sustained and writ dismissed. In Bane.

From Multnomah: William N. G-atens, Judge. Department 1. This is an action for damages arising out of the alleged burning of the mill and factory of the plaintiff, Northwest Door Company, by reason of the negligence of defendant, Lewis Investment Company.

From Multnomah: William N. Gatens, Judge. Department 1. There was a verdict and judgment for the plaintiffs, J. B. Bridges and F. T. Webber, who are partners. The defendant, Multnomah County, appealed.

<p>Landlord and Tenant—Injuries to Tenant—Sufficiency of Evidence.</p> <p>1. In an action by a tenant injured by giving way of step in stairway to basement, evidence held to sustain a finding of negligence of the landlord, although he had employed a carpenter and the lumber had been put upon the premises to repair the steps.</p> <p>Trial-—Reception of Evidence—Offer of Proof.</p> <p>2. There was no error in sustaining an objection to a question, where there was no showing or offer as to what would have been the proof if the witness had been permitted to testify.</p> <p>[As to defective and dangerous premises showing liability of lessor for, see note in 66 Am. St. Eep. 785.]</p> <p>ON REHEARING.</p> <p>Landlord and Tenant—Failure of Landlord to Repair After Notice— Injury to Tenant—Landlord’s Liability.</p> <p>3. Where a landlord agreed to keep his premises in repair, the law fastened upon him such duty, and where he violated that duty after notiee of a dangerous condition of steps he is liable in damages for the tenant’s personal injuries caused thereby, whether the injuries were directly contemplated in the contract and the action was purely contractual, or whether it was in tort for the landlord’s negligence or whether it partakes of a double nature under the Code, depending upon both tort and contract.</p> <p>Landlord and Tenant—Agreement to Repair—Evidence.</p> <p>4. In an action by a tenant against a landlord for personal injuries resulting from a defect in stops of whieh the landlord had notice, evidence held sufficient to support a jury’s finding of an agreement by whieh the landlord was to repair whenever necessary to make the building safely habitable.</p> <p>Landlord and Tenant—Landlord’s Agreement to Repair—Consideration.</p> <p>5. Evidence held sufficient to show that the agreement of the landlord to make repairs necessary to make the building safely habitable, referred back to the original contract, and was not without consideration.</p> <p>Landlord and Tenant — Personal Injuries — Defective Steps — Notice— Contributory Negligence — Question for the Jury.</p> <p>6. In action by a tenant against a landlord for personal injuries resulting from dangerous condition of steps, of which the landlord’s agent had been notified, and whieh steps he had promised to immediately repair, requesting the tenant to use the steps with care, the question of contributory negligence was one for the jury.</p> <p>Negligence — Injuries from Plaintiff’s Subsequent Acts — Pleading and Proof.</p> <p>7. If one injured by negligence of another attempts to recover for suffering resulting from his own subsequent act rather than the original accident and presents evidence of his subsequent suffering, defendant, without any pleading and as a matter of negation, may prove that part or all of the suffering resulted from the second injury.</p> <p>Trial — Exclusion of Evidence — Necessity of Statements as to What Witness Would Answer.</p> <p>8. Before a party can take advantage of an error in excluding evidence, he must state to the court what he expects, the answer of the witness will be, so that the court may know whether the answer excluded would have been favorable to the party offering it.</p> <p>Trial — Instructions—Refusal of Instructions on Matters Covered by Others.</p> <p>9. It is not error to refuse a requested instruction upon matters sufficiently covered by the general charge.</p>

<p>Pleading — Answer—Evidentiary Matter.</p> <p>1. In suit to compel the application of municipal warrants to satisfaction of certain judgments, where answer of certain defendants alleged partnership with judgment debtor and interest in the warrants, the malting of an order requiring such answer to be made more definite by setting forth nature, character, and amount of consideration or capital furnished by each partner was error; such details being merely evidentiary. *</p> <p>Pleading — Order Striking Out Answer — Failure to Make More Definite — Service of Order.</p> <p>2. Where order required answer to be made more definite by amendment made within stipulated time from service of order upon defendants, it was error to strike answer from files upon defendants’ failure to amend answer, where order was never served upon them.</p> <p>Pleading — Answer—Amendment—Unintentional Denial.</p> <p>3. In application to compel application of municipal warrants to satisfaction of certain judgments, where complaint alleged that certain defendants claimed an interest in the warrants, the court erroneously refused such defendants permission to amend their answer so as to admit such allegations instead of denying them; it being apparent that such denial was unintentional.'</p>

<p>From Linn: George G. Bingham, Judge.</p> <p>Department 2.</p> <p>The plaintiff alleges that between November 24, 1914, and May 22, 1916, she was the owner in fee simple of an undivided one-third interest in the Calvin P. and Elizabeth Jane Burkhart donation land claim in Linn County; that the defendant was the owner of an undivided two-thirds interest therein and that between the dates mentioned the defendant excluded the plaintiff therefrom and held and enjoyed the sole possession thereof and leased and rented the same, collected the rental, retained and converted the proceeds to his own use and now refuses to account to the plaintiff therefor or to pay to the plaintiff her share thereof, of which the reasonable value is $500 and for which demand has been made.</p> <p>The defendant made a general and specific denial of every allegation in the complaint and for a first further and separate answer alleged that until November 24, 1914, he was the sole owner of the land; that prior to that time he and the plaintiff were husband and wife; that on the date mentioned she brought suit for divorce, in which the court rendered a decree in her favor and gave her an undivided one-third interest in the said real estate; that at the time of the decree the plaintiff and the defendant were residing thereon and in possession of the land and that after the divorce the plaintiff left the farm and has never returned. The defendant also avers that between the alleged dates he remained in possession of all the lands, without objection by the' plaintiff, and paid taxes thereon. As a second further and separate answer and by way of estoppel the defendant alleges that on April 1, 1916, as plaintiff he commenced a suit in the Circuit Court of Linn County against this plaintiff as defendant therein, for a partition of the lands described in the complaint, alleging that he was the owner of an undivided two-thirds interest; that the plaintiff here owned an undivided one-third interest therein, and that such lands could be divided, and asked the court to appoint referees for that purpose. The plaintiff here appeared in that suit and admitted the allegations of the complaint. Thereafter the court appointed referees to make the partition, and on June 26, 1916, they filed their report, which was confirmed by the court. One third of the land was then set off by decree to the plaintiff Mary Jacobs to be held by her in severalty, and the remaining two thirds to the defendant John Jacobs, to be held by him in the same manner.</p> <p>The defendant alleges that the Circuit Court had jurisdiction of the parties and of the lands and was entitled to settle all questions of ownership, including that of rents and profits during the period that the lands were owned and held by the plaintiff and the defendant as tenants in common; that at the time of the partition suit and while it was pending Mary Jacobs had knowledge of the rental and made no claim for the amount thereof; that she could and should have set up this matter in her answer to the complaint in the former suit; that all of such.questions should have been litigated, tried and determined in the partition suit, and that by reason of her failure and neglect the plaintiff is now estopped to make any claim or prosecute any action for the alleged rents and proceeds.</p> <p>A demurrer to the defendant’s second further and separate answer was sustained. The plaintiff replied and after hearing the testimony the jury returned a verdict in favor of the plaintiff, upon which judgment was entered and from which the defendant appeals, claiming that the court erred in sustaining the demurrer and in rendering a judgment on the verdict:</p>

Prom Multnomah: Calvin U. Gantenbein, Judge. Department 1. This is an action for the recovery of money, in which the complaint, after the formal allegations, proceeds as follows: ‘ ‘ That prior to the month of August, 1916, the said Standard American Dredging Company solicited the said Ray & Company to perform certain work in connection with the grading, concrete and other work forming a part of the approaches hereinbefore referred to and asked the said partnership to submit…

From Umatilla: Dalton Biggs, Judge. Department 1. On July 18, 1914, the County Court of Umatilla County took proof of a will of A. J. Sturtevant of date November 5,1913, in common form, and admitted it to probate, appointing an executor and taking and .approving his bond.

From Multnomah: Robert G. Morrow, Judge. Department 1. This is a suit in equity to restrain the City of Portland from collecting certain assessments for the cost of improving Fiftieth Avenue, Southeast, in said city, in front of the properties of the several plaintiffs, and to recover damages for the wrongful appropriation of plaintiffs’ private property for public use without compensation.

From Multnomah.: William N. Gatens, Judge. Department 2. The defendant was the keeper of an inn or hotel in Portland. The plaintiff was an occupant of one of the rooms in the hotel. While plaintiff was, out of his room one day, the door was forced open by a burglar, and three suits of clothes and some small articles of property were taken. He brings, this action against the defendant to recover the value of such wearing apparel, etc., alleged to amount to about $84;

<p>Appeal and Error — Extension of Time for Filing Transcript — Necessity of Notice of Appeal.</p> <p>1. Trial court has no jurisdiction to extend time for filing of transcript on appeal until a notice of appeal has been served.</p> <p>ON PETITION POR REHEARING.</p> <p>Appeal and Error — Service of Notice of Appeal by Mail — Affidavit on Rehearing.</p> <p>2. There can be no service by mail of a notice of appeal undei Section 540, L. O. L., unless appellant’s attorney resides in a different place from the attorney for respondents, so that an affidavit supporting petition for rehearing on the order made dismissing the appeal for lack of service of notice of appeal, which fails to show where the notic.e was mailed to the attorney for respondents or the residence of appellant or his attorney, is defective.</p>

From Jackson: Frank M. Calkins, Judge. Department 2. By this suit plaintiff seeks to enjoin defendant from closing a roadway extending from the premises of plaintiff across defendant’s land to the public highway. The Circuit Court rendered a decree in favor of defendant, and plaintiff appeals. The facts are as follows: One John Compton owned 360 acres of land in Jackson County.

From Lane: George F. Skipworth, Judge. Department 1. The following is the essential allegation of the plaintiffs’ complaint: “That a few months prior to November 6, 1916, the defendant employed the plaintiffs to try and trade or sell 185 acres of' land in Lane County, Oregon, and to trade or sell some livestock and other personal property for defendant, and that on the sixth day of November, 1916, plaintiffs .found and had a man named F. L. Gibbs as a prospective customer…

From Multnomah.: John P. Kavanaugh, Judge. Department 1. The plaintiff brought this suit to foreclose a mortgage given to it by Walter Y. Smith and his wife upon his undivided interest in fee in certain real estate described in the complaint.

From Lane: George F. Skipwobth, Judge. Department 2. On November 5, 1914, the plaintiff commenced an action in replevin in the Circuit Court of Lane County against J. M. Edmunson and B. A. Allen for the recovery of 184 bales of hops and duly filed his affidavit, bond and order requiring the sheriff to take possession of the hops and deliver them to the plaintiff.

From Multnomah; Dalton Biggs, Judge. Department 2. This is an action for damages for the breach of a covenant of warranty in a deed. The cause was tried by the court without the intervention of a jury. Findings of fact and conclusions of law were made and a judgment was rendered in favor of the defendants. Plaintiff appeals.

From Multnomah: Calvin TJ. Gantenbein, Judge. Department 1. This is an action for money had and received by the defendant for the use of the plaintiff. The complaint is in the usual form, and the answer is a general denial. Upon stipulation' the case was tried by the court without a jury. The evidence discloses the following facts: The plaintiff, a widow, was the owner of certain business property on Washington Street in Portland, upon which there was a mortgage for $13,000.

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. ' The plaintiff alleges that the Northern Pacific Terminal Company is an Oregon corporation with its principal office in Portland, engaged in the switching and transfer of cars and trains from spurs, switches, side-tracks and warehouses, to and upon different lines in the City of Portland, for profit, gain and hire; that the defendant American Can Company is a New Jersey corporation, authorized to do business in the…

From Multnomah: George E. B aglet, Judge. In Banc. Daniel Kunkel died on January 17, 1914. He left an estate consisting of real, and personal property of the aggregate value of $98,886.08. The real property embraced three lots located in Portland. Two of these lots were worth $25,000 and the third lot was valued at $4,500.

From Grant: Dalton Biggs, Judge. In Banc. This is a suit in equity brought by the plaintiff, as a corporation, claiming to be the assignee of a certain lease and option contract, executed by the defendant^, Marks and Thompson, for a Chrome iron mine m Grant County, Oregon.

From Harney: Dalton Biggs, Judge. In Banc. On September 27, 1917, at a continuation of the April term of the Circuit Court for Harney County the grand jury returned four indictments against the defendant, the first of which charged him with the larceny of a steer, the property of Pacific Live Stock Company; the second, with the larceny of a mule, the joint property of William Hanley Company and Eastern Oregon Live Stock'Company; the third, with the larceny of one steer and…

Original proceeding in Supreme Court. In Banc. This is an original proceeding on a petition for an alternative writ of mandamus, in which it is alleged that at the general election on November 5, 1918, James Withycom.be was elected governor of the state of Oregon and that he duly qualified for that office on January 14, 1919; that at the general election held on November 7, 1916, the petitioner, Ben W. Olcott, was elected secretary of state of the state of Oregon and that he…

<p>Evidence — Hearsay—Statement in Defendant’s Absence.</p> <p>1. In action for alienation of affections of plaintiff’s wife by defendant, her father, testimony of a witness regarding wife’s statement, made in defendant’s absence that defendant had given her money with which to procure an abortion was hearsay and inadmissible.</p> <p>Husband and Wife — Action for Alienation of Affections — Evidence Admissible.</p> <p>2. In action for alienation of affections of plaintiff’s wife by defendant, her father, testimony to the effect that defendant had approved of abortion by wife held irrelevant to issues involved in the case.</p> <p>Evidence — Action for Alienation of Affections — Admissibility of Hearsay.</p> <p>3. In action for alienation of affections of plaintiff’s wife by defendant, her father, testimony of plaintiff that his wife had told him before the marriage that her father and mother wanted her to quit plaintiff altogether was hearsay and incompetent, being made four years before wife finally left plaintiff.</p> <p>Husband and Wife — Alienation-Declarations of Alienated Spouse— Admissibility.</p> <p>4. Declarations of alienated spouse, made prior to alienation in the absence of defendant, are admissible when they tend to disclose affection and the relations between the spouses.</p> <p>Husband and Wife — Alienation—Declarations of Alienated Spouse— Admissibility.</p> <p>5. Declarations of alienated spouse, made in defendant’s absence, are admissible when made at or approximately before alienation, where they are of a character likely to disclose the mind and motive of the alienated one and the effect on his or her mind or motive which the supposed words or conduct of defendant has had.</p> <p>Husband and Wife — Alienation—Declarations of Alienated Spouse— Admissibility.</p> <p>6. Where declarations of alienated spouse, made in defendant’s absence, are not of a character whieh bear upon the mental state or motives of the alienated spouse, and where they are unaccompanied by any declarations upon her part whieh bear upon her mind or motive, they are wholly inadmissible.</p> <p>Husband and Wife — Action for Alienation of Affections — Evidence Admissible.</p> <p>7. The judgment-rolls in actions brought by defendant, father of plaintiff’s wife, against plaintiff and wife after the culmination of the acts of alienation complained of, were inadmissible, being offered for the apparent purpose of showing malice on the part of defendant and that he was engaged in a general scheme to bring about plaintiff’s ruin.</p> <p>Husband and Wife — Alienation of Affections — Elements of Wrong.</p> <p>8. In action for alienation of affections of plaintiff’s wife by defendant, her father,.plaintiff must prove: First, that defendant did actually alienate; and, second, that his action was malicious.</p> <p>[As to action for alienation of affections by parent, see note in Ann. Cas. I917E, 1017.]</p> <p>Appeal and Error — Jury Findings — Review.</p> <p>9. The court on appeal has no right to review the jury’s findings upon the weight of the evidence.</p> <p>Appeal and Error — Verdict Based on Possibility — Reversal.</p> <p>10. Evidence which merely suggests a suspicion or possibility does not bring the case within Section 3 of the amendment to Const. 1910, Article VII, providing that no faet tried by a jury shall be re-examined unless there is no evidence to support the verdict, and a verdict based on such evidence cannot be permitted to stand.</p> <p>Bean, J., dissenting.</p>

From Multnomah: George G. Bingham, Judge. Department 1. This is the second appeal’of this case. The former opinion may be read in 85 Or. 333 (166, Pac. 29).

From Union: John W. Knowles, Judge. In Banc. The plaintiff alleges that the defendants are the heirs and devisees under the last will of D. A. Mc-Allister, deceased, which was executed on January 11, 1913, by which he bequeathed all of his property to the defendants, except Lot 16 in Block 2 of Grandy’s Second Addition to La Grande; that D. A. McAllister died in April, 1918, and that under the terms of his will his son, Reece McAllister, one of the defendants, was appointed…

From Union: John W. Knowles, Judge. In Banc. The defendant was indicted upon a charge of unlawful sale of intoxicating liquor to one Ed Johnson.

From Union: John W. Knowles, Judge. In Bane. The defendant was indicted and tried for the crime of having sold intoxicating liquor to one John E. Smith. The circumstances of the alleged offense are set forth in the statement preceding thé opinion in the case of the State v. Newlin, ante, p. 589 (182 Pac. 133), in which case we set aside the judgment pronounced upon a ‘conviction for having sold intoxicating liquor to one Ed Johnson.

From Clatsop: James A. Eakin, Judge. Department 1. In effect, this is a suit to quiet the plaintiff’s title in certain lands in Clatsop County. Without quoting the pleadings in extenso, it is sufficient to say that the state, county and general municipal taxes were duly assessed against these lands for the year 1909. No part of the taxes-having been paid, certificates of delinquency were issued to Clatsop County on December 3, 1914.

From Multnomah: Robert Tucker, Judge. Department 2. This is an action to recover $1,000 alleged to have been deposited by the plaintiff with .the defendant, to be held by it as a sort of stakeholder, in a transaction between the plaintiff and Lambert & Whitmer, who had purchased from the plaintiff and his sister certain real estate in the City of Portland, in relation to the payment of certain paving liens, which had been assessed against the property by the city.

From Multnomah.: William N. G-atens, Judge. In Banc. This was a suit for divorce.

From Tillamook: George E. Bagdey, Judge. Department 1. By suit in the Circuit Court of Tillamook County the plaintiff Churchill as the assignee of his coplaintiff foreclosed a mortgage against the defendants herein, upon real property and chattels in that county and upon realty in Multnomah County. Execution was issued on the decree and the Tillamook land was sold as the complaint here alleges,' for $15,000, its full value.

From Multnomah: John P. Kavanatjgh, Judge. In Banc. This is a motion to dismiss an appeal and is based upon the following facts: On September 30, 1915, plaintiff filed in the Circuit Court for Multnomah County a complaint for divorce, and on the twenty-fourth day of November upon an affidavit duly setting forth all the necessary jurisdictional facts, obtained an order authorizing service of publication of summons upon the defendant and directing that a copy of the complaint…

<p>Contracts — Construction Contract — Waiver—Acceptance of Work.</p> <p>1. Acceptance of work done xmder a construction contract does not constitute a waiver of latent defects of which the owner was ignorant at the time or which may appear thereafter.</p> <p>Municipal Corporations — Improvements—Sewer Contract — Acceptance of Work — Waiver of Defects.</p> <p>2. Where sewer contract expressly stated that engineer or inspector was not authorized to accept or approve work not done according to the contract, and reserved to the city alone the power to accept and approve work, city’s acceptance and payment of contract price, without knowledge of defects not discoverable by an ordinary inspection, will not be construed a waiver or an estoppel to claim damages for such defects upon discovery thereof.</p> <p>Contracts — Building Contracts — Acceptance or Rejection by Architect.</p> <p>3. A contract which provides for work of construction to be performed in the best manner, and the materials of the best quality, subject to acceptance or rejection of an architect or engineer, all to be done in strict accordance with the plans and specifications, does not make acceptance by architect or engineer final and conclusive, and will not bind the owner or relieve the contractor from the agreement to perform according to plans and specifications.</p> <p>Municipal Corporations — Improvements — Acceptance of Work — Prima Facie Evidence. '</p> <p>4. The acceptance of work by municipality is only prima facie evidence that the work has been done in substantial compliance with the terms of the contract.</p> <p>Principal and Agent — Misconduct of Agent — Violation of Instructions.</p> <p>5. Principal is never charged with consequences of agent’s misconduct in \iolating his instructions except for the protection of some third person who has been» misled by a reliance on an ostensible authority of the agent.</p> <p>Municipal Corporations — Sewer Contract — Authority of Inspector— Acceptance of Work.</p> <p>■6. Where sewer contract expressly stipulated that inspector or engineer was without authority to accept or reject the work when not done according to the contract, contractor had no right to suppose that the eity engineer or inspector was authorized to permit any deviation from the contract.</p> <p>Municipal Corporations — Sewer Contract — Breach by Contractor— Rights of City.</p> <p>7. That eity did not see fit to reconstruct sewer in precisely the same manner and according to the same plans and specifications under provision in contract giving it the right to so do upon contractor’s breach did not affect the right of the city to recover damages for breach by contractor.</p> <p>Municipal Corporations — Sewer Contract — Payment by City — Release of Surety.</p> <p>8. Payment by city for work accepted by it under sewer contract, under the honest belief that work was done in the manner required by the contract, did not release the surety.</p> <p>Municipal Corporations — Sewer Contract — Breach by Contractor— Measure of Damages.</p> <p>9. On sewer contractor’s failure to construct sewer according to plans and specifications, the city’s measure of damages is reasonable cost and expense of procuring the work and labor to be done and furnishing the necessary material in order to make the sewer system conform to the contract.</p> <p>Municipal Corporations — Sewer Contract — Breach by Contractor— City’s Bight of Action.</p> <p>10. On sewer contractor’s failure to construct sewer system according to the contract plans and specifications, city had the right to prove its damages without waiting for the sewer system to be reconstructed.</p> <p>Contracts — Building Contracts — Approval by Supervising Engineer— Collusion.</p> <p>11. An owner is not bound as against his contractor by the acts of a supervising engineer or inspector in approving work done by the contractor, where' sueh approval is the result of either bad faith, col lusion, or gross negligence.</p> <p>Municipal Corporations — Sewer Contract — Inspection of Work — Waiver.</p> <p>12. That work on a sewer eontraet was performed in the absence of city engineer or inspector in violation of a eontraet, without objection by either inspector or engineer, was not a waiver by city of defects in the work, although the engineer or inspector knew work was being imperfectly done, where contract provided that engineer and inspector should not-have authority to accept or reject work not performed according to the contract.</p> <p>Municipal Corporations — Sewer Contract — Breach of Contract — Action for Damages — Negligence of City Engineer or Inspector.</p> <p>13. In city’s action against sewer contractor for failure to construct sewer according to contract, where contractor denied that work was not constructed according to contract, the negligence of city engineer or inspector in examining, and inspecting work was not material, the issue being whether or not work was done in accordance with contract plans and specifications. ’</p> <p>Municipal Corporations — Breach of Sewer Contract — Action for Damages — Burden of Proof.</p> <p>14. City suing sewer contractor for failure to construct sewer according to contract plans and specifications has burden of proving that contractor failed to perform the requirements of contract specifically as mentioned in the complaint.</p> <p>Municipal Corporations — Sewer Contract — Action for Breach — Defenses.</p> <p>15. In city’s action against sewer contractor for failure to construct sewer according to the contract, it was no defense that the plans and specifications were defective, and that sewer, if constructed in accordance therewith, would have beqn worthless.</p> <p>Municipal Corporations — Action on Sewer Contract — Admissibility of Evidence.</p> <p>16. In city’s action against sewer contractor for failure to construct sewer according to contract, where contract expressly stipulated that city engineer had no authority to release contractor from a necessary and important requirement of the contract, evidence that engineer had instructed contractor’s foreman to deviate from plans and specifications was inadmissible.</p> <p>Pleading — Amendment of Complaint — Action on Sewer Contract.</p> <p>17. In city’s action against sewer contractor for failure to construct sewer according to the plans and specifications, where contractor denied that work had not. been performed in accordance therewith, and where contract pleaded showed that city engineer had no authority to release contractor from an important requirement of the work, court properly refused contractor permission to amend complaint so as to allege that engineer had directed contractor’s foreman to deviate from the plans and specifications.</p> <p>Evidence — Sample Sewer-pipe — Rebuttal of Expert Evidence.</p> <p>18. In city’s action against sewer contractor for failure to construct sewer according to specifications requiring mortar to be made of two parts sand to one part of cement, where there was expert evidence for contractor that such mortar would disintegrate in a very short time, the sample sewer-pipe, laid six years prior thereto with use of same proportion of sand and cement, was admissible to show that mortar used in the joints did hot disintegrate, such evidence being competent to rebut expert testimony.</p> <p>Municipal Corporations — Action on Sewer Contract — Instructions.</p> <p>19. In city’s action against sewer contractor for failure to construct sewer according to plans and specifications, where contract required contractor to make joints tight and to fill every part of the joint with mortar where required, or oakum where required, instruction that it was contractor’s duty to. make a “tight joint” in each of the sewer joints, with cement mortar of the required mixture, was proper.</p> <p>Contracts — Construction—Province of Court.</p> <p>20. It is the duty of the eourt to construe a written contract.</p> <p>Evidence — Action on Sewer Contract — Admissibility of Evidence— Intentions of Witness.</p> <p>21. In city’s action against sewer contractor for failure to construct sewer according to contract, involving issue of whether city had accepted the sewer, it was proper for city engineer, after having testified that in accepting he relied upon contractor’s statement, to testify that he would not have accepted sewer if he had known the true facts.</p>

<p>Witnesses—Showing Inconsistent Statement—Party Introducing Witness.</p> <p>1. Under Section 861, L. O. h., authorizing the party producing a witness to show he had made statements inconsistent with his testimony, as provided in Section 864, the state could call the attention of its witness to a prior inconsistent statement, together with the circumstances of time and place and persons present, to refresh his memory and induce him to correct his testimony or explain the inconsistency; the things to be avoided being showing his bad character, and introducing as substantive evidence unsworn or prior statements of witness.</p> <p>[As to proof of prior contradictory statements, see note in 82 Am. St. Rep. 39.]</p> <p>Criminal Law — Trial—Objections to Evidence.</p> <p>2. Objection “irrelevant, immaterial, and not in rebuttal” goes to the introduction of the evidence on rebuttal, and does not, as is necessary for review, raise the question of it being evidence of another crime.</p> <p>Criminal Law — Trial—Objections to Evidence.</p> <p>3. Objection “irrelevant, immaterial, and incompetent and not proper rebuttal, and witness has not shown sufficient qualifications,” ean only be considered on the ground of evidence not being proper rebuttal. ,</p> <p>Criminal Law — Order of Introduction of Evidence — Discretion of Court.</p> <p>4. Order of introduction of evidence is in the sound discretion of the trial court.</p> <p>Criminal Law — Harmless Error — Departure from Code Procedure.</p> <p>5. Under Section 1538, L. O. L., departure from a mode of proceeding, even if prescribed by the Code, is not ground for reversal unless it appear that substantial rights of defendant have been prejudiced.</p> <p>Criminal Law — Recalling Witness — Discretion.</p> <p>6. Leave to recall a witness being by provision of Section 862, L. O. L., in the sound discretion of the trial eourt, it is only for abuse thereof that its ruling can be disturbed.</p> <p>Criminal Law — Credibility of Witnesses — Instructions—“Falsely.”</p> <p>7. The court need not add the word “willfully” to the instruction prescribed by Section 868, subdivision 3, L. O. L., “that a witness false in one part of his testimony is to be distrusted in others,” “falsely” importing this, and not being of the same import as “mistakenly.”</p> <p>Criminal Law — Appeal—Harmless Error — Constitution.</p> <p>8.. Article VII, Section 3, of the Constitution as amended in 1910, at least accentuates the law as it stood in regard to prejudicial error, in favor of an affirmance unless actual prejudicial error appears.</p> <p>ON REHEARING.</p> <p>Witnesses — Impeachment of Character of Own Witness.</p> <p>9. In view of Section 861, L. O. L., a party who produces a witness of bad character cannot show the bad character of that witness and thus relieve himself from the injurious effects of any unfavorable testimony given by such witness.</p> <p>Witnesses — Impeachment—Inconsistent Statements.</p> <p>10. Under Section 861, L. O. L., if the witness fails to testify as he was expected to do, but does not give testimony prejudicial to the party calling him, then the party producing the witness cannot impeach him by showing prior inconsistent statements.</p> <p>Witnesses — Impeachment of Own Witness — Inconsistent Statements.</p> <p>11. Under Section 861, L. O. L., where a presumably truthful person makes a statement and afterward as a witness makes an inconsistent statement to the surprise and prejudice of the party calling him, then the party calling the witness is not at fault, and should be permitted to repair the damage.</p> <p>Witnesses — Impeachment—Inconsistent Statements.</p> <p>12. In prosecution of wife for killing her husband, testimony of a state witness, who had stated that defendant and deceased quarreled, that he did not know who started the quarrels was not affirmatively prejudicial to the state, and such as to authorize the state, under Section 861, D. O. L., in impeaching the witness by evidence of prior inconsistent statements.</p> <p>Criminal Law — Leading Questions — Reversible Error.</p> <p>13. In prosecution for murder, that the state, after one of its witnesses had stated that he did not know whether defendant wife or the victim, her husband, started quarrels when “they used to quarrel,” elicited testimony from the witness that he had made a contradictory statement before the grand jury held not to require reversal, in view of Section 1626, L. O. L., as to errors nor affeeting substantial rights, and Section ¿58 as to leading questions; the witness being reluctant.</p> <p>Criminal Law — Limited Use of Testimony.</p> <p>14. Where a party is permitted to refresh the recollection of his own witnesses by directing attention to prior inconsistent statement, the court should inform the jurors that prior statement eannot be considered as substantive testimony.</p> <p>Criminal Law — Improper Cross-examination — Harmless Error.</p> <p>15. Assuming that cross-examination of defendant’s witness with reference to whether defendant had the reputation of getting “drunk” was objectionable, answers of witness, “I don’t think so,” were without prejudice to defendant.</p> <p>Witnesses — Quarrelsome Disposition of Accused.</p> <p>16. In prosecution for murder, where the witness in question had given testimony on direct examination, from which it could be argued that the victim, defendant’s husband, was either alone responsible for quarrels with defendant or an aggressive participant, the district attorney was well within the limits of Section 860, L. O. L., when he asked defendant’s witness on cross-examination whether the quarrels began when defendant discovered that the husband did not have “ lots of money.” 0</p> <p>Witnesses — Impeachment—Immaterial Matters. ,</p> <p>17. The general rule is that when a cross-examination elicits from a witness matter that is immaterial or irrelevant the party conducting the cross-examination is concluded as to such matter, and cannot impeach the credibility of the witness by showing contradictory statements.</p> <p>Criminal Law — Erroneous Admission of Testimony — Harmless Error.</p> <p>18. In prosecution for murder, held that defendant was not prejudiced by reason of introduction in evidence of testimony as to her intoxication on the day of the homicide in rebuttal instead of in chief. (</p> <p>Criminal Law — Evidence of Independent Crime — Reversible Error.</p> <p>19. In prosecution of defendant wife for the killing of her husband, permitting a witness to state wiat he had heard about the time defendant got a revolver and was going to kill “his únele” was reversible error.</p>