Volume 93 — Oregon Reports

<p>Partnership — Silent Partner — Evidence.</p> <p>1. Plaintiff, in action for half of the expenses of an option taken in his name, held to have failed to establish by a preponderance of tho evidence that defendant was a silent partner in the transaction.</p> <p>[As to specific performance ef optional contracts, see note in Ann. Cas. 1913A, 3fi2.]</p>

<p>Fraudulent Conveyances — Bulk Sales Law — Applicability—Consideration — “Sale.”</p> <p>1. Construed as a whole, bulk sales law (Sections 6069-6072, L. O. L.), applies, not only to sales for money, but also to sales for property measured in money; “sale or transfer” being spoken of, and direction being given for acts “before paying or delivering * * any part of the purchase price or consideration.”</p> <p>Exchange of Property — “Barter.”</p> <p>2. A “barter” or “exchange of properties” occurs where one article is exchanged for another; no price in money being fixed upon either.</p> <p>Words and Phrases — “Cash.”</p> <p>3. Ordinarily, the word “cash” means money, but it is frequently used as a term meaning the opposite of credit.</p> <p>Fraudulent Conveyances — Bulk Sales Law.</p> <p>i. Bulk sales law (Sections 6069-6072, L. O. L.) is not limited to protection of mercantile creditors only; it speaking of “all of the creditors,” “all of his creditors,” and “any and all creditors.”</p> <p>Fraudulent Conveyances — Bulk Sales Law — Creditors Entitled to Notice.</p> <p>5. Bulk sales law (Se'ctions 6069-6072, L. O. L.) requires notice to creditors whose demands are not yet due; statement required of seller being of all creditors, with amount of indebtedness due or owing, or to become due or owing.</p> <p>Fraudulent Conveyances — Bulk Sales Law — Remedy of Creditors— Purchaser from Grantee.</p> <p>6. A sale without compliance with bulk sales law being by provision of Section 6070, L. O. L., conclusively presumed fraudulent and void, a trust in favor of creditors of the seller, he being without assets and they having reduced their claim to judgment, entitling them to equitable remedy, will be impressed on land obtained by the buyer of the stock of goods in exchange therefor, and then conveyed to others without consideration.</p> <p>[As for remedies of creditors for violation of bulk sales law, see note in Ann. Cas. 1916C, 928.]</p>

<p>Pleading — Election Between Defenses — Necessity.</p> <p>1. A defendant can be required to elect upon which of several defenses he will rely only where the facts stated as sueh defenses are so inconsistent that, if the truth^of one defense be admitted, it would necessarily destroy the other.</p> <p>Pleading — Election Between Defenses — -Inconsistent Statements.</p> <p>2. In an action for damages for distributing water on plaintiff’s land by a drainage diteh, no election was required where defendant pleaded a natural outlet and also that sueh natural outlet was changed and lowered by the construction of the diteh acquiesced in for more than 20 years.</p> <p>Trial — Instructions—Bequests.</p> <p>3. In an action for damages to land by distribution of water through a drainage ditch, a requested instruction that water cannot be discharged on the property of another without his consent and to his injury in greater quantities than that in which it would naturally flow, held covered by otljer instructions given.</p> <p>Waters and Watercourses — Drainage—Action for Damages — Instructions.</p> <p>4. In an action for damages to land by distribution of water through a drainage ditch, an instruction as to changing a, natural watercourse and restoring the same to its original channel within the confines of defendant’s own land held properly refused as inapplicable to the issues.</p> <p>Waters and Watercourses — Diversion or Change of Natural Streams— Liability.</p> <p>5. When a small natural stream is straightened and deepened so as to confine the waters thereof within a smaller compass, thereby increasing the tillable land, in such a manner as not to increase the amount of water, or change the place of discharge on a neighbor’s land, no cause of action arises.</p> <p>Waters and Watercourses — Action for Injuries — Instructions—Surface Water.</p> <p>fi. In an action for damages to land by distribution of water from a drainage diteh, an instruction that, if defendant east water from his property permeating the surrounding soil and percolating into plaintiff’s land eo bis injury, ver'diet should be for plaintiff, was properly refused as ignoring the rule as to surface water.</p> <p>[As to instances of percolating waters, see note in 67 Am. St. Rep. 671.]</p> <p>Waters and Watercourses — Surface Water — Drainage.</p> <p>7. The owner of upper lands is not prohibited by the rule as to surface water from cultivating his lands or draining them by artificial ditches, though surface water is thereby precipitated more rapidly upon the lands of the adjacent owner below, provided he does not cause water to flow on such lands, which, but for the artificial ditches, would have flowed in a different direction, and provided he aets with a prudent regard for the adjacent owner’s interest.</p>

<p>Mortgages — Redemption—Retroactive Statute.</p> <p>- 1. A state statute, whieh authorizes the redemption of property sold on foreclosure of a mortgage where no right of redemption previously existed, or whieh extends the period of redemption beyond the time formerly allowed, cannot constitutionally apply to a sale under a mortgage executed before its passage.</p> <p>Constitutional haw — Impairment of Contract Right — Redemption of Mortgage.</p> <p>2. Laws of 1917, page 736, amending Section 248, L. O. L., relating to redemption from mortgage sales, is inapplicable to mortgages executed prior to enactment thereof, in so far as it gives mortgagor who has sold property right to redeem, and in so far as it extends period ■of redemption from one year to'one year and ten days, for to apply amendment to such mortgagor would impair contract rights.</p> <p>[As to laws relating to redemption, see note in 120 Am. St. Rep. 479.]</p> <p>Courts — Rules of Décision — United States Supreme Court.</p> <p>3. The state Supreme Court will accept decision od[ United States Supreme Court upon a question arising under the Constitution of the United States, though logic of the opinion seem questionable to state court.</p> <p>Names — Idem Sonans.</p> <p>4. Mortgage foreclosure complaint and decree of sale, describing property as in “Blackistone Addition,” was not fatally defective, though mortgage described property as in “Blackstone addition”; “Blackistone” and “Blackstone” being idem sonans.</p>

<p>Life Estates — Lease—Emblements—Rights of Undertenant.</p> <p>1. Where a life tenant has leased land for the term of his life for a money rent payable annually, the doeti/ine of emblements applies with full force to the undertenant; he having even greater privileges than his lessor, the life tenant whom he represents.</p> <p>Life Estates — Lease by Life Tenant — Death of Lessor — Apportionment of Rent.</p> <p>2. At common law, where a life tenant leases the estate for a term of years at a yearly rent and dies before one of the rent days, the rent cannot be apportioned, and the tenant could quit free of rent from the last rent day; neither the personal representatives of the lessor nor the reversioner having power to collect the rent.</p> <p>Common Law — English Statutes — Applicability.</p> <p>3. English statutes passed before the emigration of our ancestors, in aid or amendment of the common law, applicable to our condition and not repugnant to .our institutions, constitute a part of our common law.</p> <p>Common Law — Adoption—Applicability.</p> <p>4. The common law as it existed in England at the time of the s'ettlement of the American colonies has been adopted so far only as its general principles were suited to the habits and conditions of the colonies and in harmohy with the genius, spirits and objects of American institutions, and whether common-law rules will be followed strictly depends, where no vested rights are actually concerned, upon the extent of which they are reasonable and in consonance with public policy and sentiment.</p> <p>[As to adoption of common law, see note in Ann Cas. 1918A, 981.]</p> <p>Common Law — Adoption.</p> <p>5. In Oregon the common law of England was adopted as it existed, modified and amended by the English statutes passed prior to the Revolution.</p> <p>Life Estates — Lease—Apportionment of Rents — Effect of Death of Life Tenant — Common-law Rules — Adoption.</p> <p>■6. The common law of England as modified by Statute of 11 Geo. II, e. 19, Section 15, giving an executor or administrator of a life tenant, on whose death a lease granted by him had determined, the right to recover of the tenant a ratable portion of the rent from the last day of payment to the death of lessor, being reasonable and suited to the conditions and customs of the state and not conflicting with the Constitution or statutes thereof, was adopted as part of the common law of the state.</p> <p>Statutes — Construction—Copied Statutes — Intent oí Legislature.</p> <p>7. The rule that, where a statute is copied from that of another ■state, the construction of the duplicated statute by the highest court of the state from which it is taken will be adopted, does not apply where the legislature adopting the latter statute had a different intention.</p> <p>Landlord and Tenant — Payment of Rent — Constructive Eviction.</p> <p>8. There cannot be a constructive eviction without a surrender of possession, and the tenant will not be permitted to remain in possession and escape payment of rent by pleading a state of faets whieh, though conferring a right to abandon, has not been accompanied by the' exercise of that right.</p> <p>Life Estates — Lease—Death of Life Tenant — Apportionment of Rent Due to Life Tenant by Subtenant.</p> <p>9. Where a life tenant leased the property for the period of the life tenancy for a money rent payable annually and died before annual erops had matured and before the annual rent for that year was due, the rent could be apportioned between the life tenant’s personal representatives and the reversioner as to time, in view of Sections 7169, 7170, L. O. L., modifying the common-law rule that such rents could not be apportioned.</p>

<p>Appeal and Error — Period in Which to File Transcript.</p> <p>1. Where undertaking was filed January 14th, and was not.exeepted to, the period in which to file transcript did not expire until 30 days from January 19th, the appeal not having been perfected, under Section 550, subdivision 4, L. O. L., until the expiration of the five-day period after filing of undertaking.</p> <p>[As to time for appeal, see note in Ann. Cas. 1917E, 930.]</p> <p>ON THE MERITS.</p> <p>Words and Phrases — “Gilt Edge.”</p> <p>2. The term “gilt edge,” as applied to commercial paper, is a colloquialism, meaning of the best quality or highest priee, first class, and not implying that a note which is not gilt edge is not collectible, or that the maker is irresponsible.</p> <p>Fraud — Right to Recover — Injury.</p> <p>3. The seller of furniture in a rooming-house to one who paid in cash and note seeured by mortgage could, not recover damages from the purchaser and another, charged to have conspired to create a pretended security, by execution of mortgage without actual consideration, unless he suffered some injury.</p>

<p>Municipal Corporations — Streets—County Roads — Control by City.</p> <p>1. Although a county road may traverse land within the limits of an incorporated city or town, yet, unless the state through its legislative department, or the county as the agent of the state, employing procedure prescribed by statute, surrenders authority over the road, the city cannot assume control.</p> <p>Dedication — County Roads — Acceptance—Improvement.</p> <p>2. Where many years prior to the adoption of the original act incorporating municipality a highway located within the boundaries of the municipality was laid out, and the county expended money in improving the road, both before and after incorporation, there was a dedication and acceptance by the eounty constituting the highway a regular eounty road.</p> <p>[As to acceptance implied from user, see note in 129 Am. St. Rep. 621-629.]</p> <p>Municipal Corporations — Streets—County Road.</p> <p>3. The mere fact that the county road is embraced within the boundaries of a recently created municipality does not ipso facto make it a city street.</p> <p>Municipal Corporations — Street Improvements — Powers of — County Road — Authority.</p> <p>4. Mere consent will not confer jurisdiction upon a tribunal having limited authority in matters where it has no power to conduct such proceeding, and therefore consent of abutting owners to the improvement of a county road within .its limits does not give the municipality jurisdiction to order such improvement.</p> <p>Municipal Corporations — Public Improvements — Estoppel of Abutting Owner — Assessments.</p> <p>5. Where municipal authorities ordered the improvement of county road within its boundaries, the faet that an abutting owner, in remonstrating or protesting against the improvement, referred to the road as a street, using the same language that1'was used by the council in the ordinance ordering the improvement, does not estop such property owner from denying the authority of council to order the improvement.</p> <p>Municipal Corporations — Road Improvements — Council Authority.</p> <p>6. While the electors of a municipality may, pursuant to Article XI, Section 2, of the Constitution through the exercise of initiative power conferred in Article IV, Section la, amend the charter, such power does not authorize a municipality to do anything not strictly forbidden, and to warrant a municipality in improving a county road such power must be plainly disclosed by the terms of its charter, whieh must be strictly construed.</p>

<p>Notice — Irrigation District — Publication of Notice — Sufficiency of Affidavit of Publication.</p> <p>1. Affidavit of publication of notice of petition for irrigation district by “foreman of the-tribune” was not sufficient compliance with Section 833, L. O. L., requiring such affidavit to be made by the printer of the newspaper or his foreman or principal clerk.</p> <p>Notice — Organization of Irrigation District — Publication of Notice of Petition — Sufficiency of Affidavit.</p> <p>2. Affidavit that notice of petition for organization of irrigation district was published “once a week for a period of four weeks beginning on the eighth day of August, 1917, and ending on the fifth day of September, 1917,” was insufficient proof of compliance with Laws of 1917, page 744, Section 1, requiring such notice to be published “onee each week for at least four successive weeks,” sinee, under such affidavit, the publication would not necessarily have been made on four successive weeks.</p> <p>Waters and Watercourses — Organization of Irrigation District — Publication of Petition — Jurisdictional Requirement.</p> <p>3. Laws of 1917, page 744, Section 1, requiring publication of petition for organization of irrigation district once eaeh week for at least four successive weeks before the time at which it is to be presented, is a jurisdictional requirement.</p> <p>Waters and Watercourses — Organization of Irrigation District — Sufficiency of Petition.</p> <p>4. Petition for organization of irrigation district under Laws of 1917, page 744, Section 1, held sufficient compliance with requirements of such statute.</p> <p>Waters and Watercourses — Irrigation District — Petition—Qualification of Subscribers.</p> <p>5. Petition for irrigation district is not required in view of Laws of 1917, page 744, Section 2, to enumerate the qualifications of subscribers under Section 29.</p> <p>Waters and Watercourses — Irrigation District — Proceedings for Organization.</p> <p>6. The same technical precision that is observed in a regular law action is not required in a proceeding for the organization of an irrigation district before the County Court.</p> <p>Waters and Watercourses — Irrigation District — Proceedings for Organization — Order of Court on Final Hearing.</p> <p>7. Under Laws of 1917, page 744, Section 2, as amended by Laws of 1919, page 442, providing that upon final bearing of petition for organization of irrigation district eonrt shall mate an order determining inter alia whether the requisite number of owners of the land within proposed district shall have petitioned for the formation thereof, such order should state all the facts found or determined by the court upon such hearing.</p> <p>Appeal and Error — Review—Evidence—Exclusion of Land from Irrigation District.</p> <p>8. Court’s refusal to exelude land within proposed irrigation district from proposed district cannot be reviewed on appeal, in absence of the evidence upon such question.</p> <p>Waters and Watercourses — Irrigation District — Exclusion of Land from District.</p> <p>9. Upon petition for irrigation district and objection thereto by owner and requests to exclude land from proposed district, an issue is raised requiring proof of actual conditions existing before court can determine whether land should be excluded, in view of Laws of 1917, page 769, Section 37, subdivision (d).</p> <p>[As to inclusion of land in irrigation district, see note in Ann. Cas. 1916A, 1222.]</p> <p>PETITION FOR REHEARING.</p> <p>Waters and Watercourses — Irrigation Districts — Proceedings for Organization — Order of County Court — Jurisdiction to Issue.</p> <p>10. Where the proof of publication of notice of petition for irrigation district was defective in failing to show compliance with Laws of 1917, page 744, Section 1, requiring publication once each week for at least four successive weeks, and the County Court nevertheless proceeded with final hearing under Section 2, it would be the duty of the Circuit Court as upon a judicial examination of the proceedings as provided for in Section 41 to set aside the order of the County Court for want of jurisdiction.</p>

<p>Parties — Joinder—Complaint.</p> <p>1. Whether there has been a proper joinder of parties defendant 'depends largely upo-n the ease as stated by plaintiff in his complaint, however it may turn out upon the merits.</p> <p>Courts — Jurisdiction—Answer to Merits.</p> <p>2. Where defendant answers to the merits, court’s jurisdiction over such defendant becomes complete.</p> <p>Appearance — General Appearance After Special.</p> <p>3. Trial of cause on merits after special appearance attacking jurisdiction of court is in effect a general appearance.</p> <p>Venue — Action Against County — “Necessary Party.”</p> <p>4. Contractor’s action on road building contract against county and bank to which contractor had assigned as collateral security amount due under pretended" final estimate of county’s indebtedness claimed by contractor to be erroneous, but which bank insisted could not be set aside to its prejudice, was properly brought in county in which bank was situated, though different from defendant county, under Section 396, subdivision 3, L. O. L.; the bank being a “necessary party” under Section 393.</p> <p>Highways — Construction Contract — Conclusiveness of Engineer’s Estimate.</p> <p>5. Stipulation in road building contract that state highway engineer’s estimate as to work done and value therefor to be paid by county is of essence of contract, and in absence of fraud or gross mistake implying bad faith or failure to exercise honest judgment is binding upon both parties as to disputes subsisting and open to arbitration.</p> <p>Highways — Construction—State Highway Engineer’s Estimate — Errors — Sufficiency of Evidence.</p> <p>6. Evidence held to show such gross and palpable errors in classifying and estimating the amount of work performed under road building contract making state highway engineer’s estimate final, that it was impossible for state highway engineer’s final estimate to be the result of the exercise of honest judgment.</p> <p>Highways — Construction—State Highway Engineer’s Estimate— Errors — Correction.</p> <p>7. Where state highway engineer’s final estimate of work performed under contract making such estimate final showed such gross and palpable errors that it was impossible for result to be the exercise of honest judgment, the estimate should be set aside and corrected.</p> <p>Highways — Construction—Contractor’s Compensation — Engineer’s Estimate — Errors.</p> <p>8. State highway engineer’s estimate of work performed under contract making such estimate final is only prima facie correct, and where it appears that that estimate is not fair, and is result of reports of incompetent subordinates and not of an impartial hearing and determination, equity will set aside estimate and determine contractor’s compensation.</p> <p>Highways — Construction—Compensation of Contractor — Extra Work.</p> <p>9. Where contract contemplated work to be performed during summer, but because -of right of way complications contractor was required to postpone work until winter months and because thereof and by reason of change of plan® was required to do considerable work not contemplated by contract, he could recover therefor under stipulation in contract providing for additional compensation for extra work.</p> <p>Highways — Construction of Contract — “Earth.”</p> <p>10. The word “earth,” within highway construction contract providing for contractor’s compensation for removal thereof embraced clay, sand, loam, gravel and all hard material that can, in opinion of engineer, be reasonably plowed, and all earthy matter or earth containing loose stones or boulders intermixed and all other material that does not come under the classification of hard-pan, loose roek, solid roek, shell roek and solid roek borrow.</p> <p>Highways — Construction of Contract — “Hard-pan.”</p> <p>11. The term “hard-pan,” within road building contract providing for contractor’s compensation for removal thereof, includes material, not loose or solid roek, that cannot in'the opinion of the engineer be reasonably plowed on account of its own inherent hardness.</p> <p>Highways — Construction of Contract — “Earth” — “Hard-pan” — “Adobe.”</p> <p>12. Where road building contract provides for compensation for removal of “earth” and “hard-pan” but not for “adobe,” and where there was evidence that adobe could not be practically plowed or blasted out, adobe will not be classed as earth or hard-pan, and contractor will be given reasonable cost of excavating it.</p> <p>ON PETITION FOB BEHEABING.</p> <p>Appeal and Error — Beview—Determination.</p> <p>13. Where plaintiff did not appeal in an equity case, the appellate court cannot increase the award in his favor even though it hears the case de novo.</p> <p>Appeal and Error — Review—Determination.</p> <p>14. Under Section 556, L. O. L., the appellate court hears an equity case Se novo, and it may affirm the decree though it bases the affirmance on reasoning differing from that of the trial court.</p> <p>Highways — Contracts—Action.</p> <p>15. In an action by a highway contractor against a county, evidence held sufficient to establish his claim for additional compensation, ete.</p>

<p>Municipal Corporations — Paving Contracts — Guaranty of Work — Action on Bond — Evidence—Sufficiency.</p> <p>1. In.an action on an undertaking executed by a paving company and an accident and liability company insuring faithful performance of a pavement contract and providing for the repair of defects attributable to defective workmanship or material within five years-, the mere fact that the top or wearing surface of the pavement wore out, leaving the concrete base to disintegrate, held not sufficient evidence to justify a finding of defective materials and workmanship.</p> <p>[As to when relation of eosuretyship exists, see note in Ann. Cas. 1915A, 1206.]</p>

<p>Master and Servant — Workmen’s Compensation — Statutes—Construction — “Shaft.”</p> <p>1. Employers’ Liability Act, providing that “shafts, wells, floor openings and similar places of danger shall be inclosed” in its reference to “shafts” contemplates openings in the ground or in structures, and not revolving shafts in machinery.</p> <p>Master and Servant — Workmen’s Compensation — Evidence — Subsequent Repairs or Alterations.</p> <p>2. In an action under the Employers’ Liability Act for injuries to an employee caught in an unguarded shaft on a caterpillar engine, it was competent to show the subsequent installation of a guard over such shaft to demonstrate the practicability of guarding the shaft without impairing the efficiency of the machine.</p> <p>Evidence — Workmen’s Compensation — Declarations Against Interest.</p> <p>3. In an action under the Employers’ Liability Act for personal injuries sustained by being caught by an unguarded shaft on a caterpillar engine, evidence by plaintiff that after the injury defendant came to him and said he had fixed the machine by putting a box over it was admissible as a declaration against interest in view of Section 727, subdivision 2, L. O. L.</p> <p>Release — Fraudulent Release — Return of Consideration — Necessity— Deduction from Verdict.</p> <p>4. Where a release for personal injuries is obtained by fraud, a return or tender of the consideration paid is not a requisite to maintaining an action for damages by plaintiff, and upon a judgment for him it is sufficient if the amount received on the release be deducted from the verdict.</p> <p>[As to accident or injury within aet — Disease as accident under Workmen’s Compensation Act, see note in Ann. Cas. 1918B, 309.]</p>

<p>From Union: John W. Knowles, Judge.</p> <p>In Banc.</p> <p>This is an action brought, under the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. Stats., §§ 8657-8665), to recover damages for the death of plaintiff’s intestate, Walter Francis Fuller, which was caused by a rear end collision between two of defendant’s trains at North Fork, Oregon.</p> <p>Deceased, at the time of the accident, and for more than five years previous thereto, had been rear brakeman and flagman on defendant’s freight trains, operating in and out of La Grande, Oregon, and on the morning of the accident was acting as such on train No. 255, which left La Grande westbound at 5:45 on the evening of September 2, 1917. At Meacham station the train took on five or six carloads of sheep, the whole load from there comprising 70 cars, including the caboose. At 2:55 a. m. on September 3d, this train pulled out from Meacham bound west. While at Meacham, train 2140 arrived there, having backed down from Kamela, a station a few miles beyond Meacham, where it had acted as a helper engine, pulling a freight train from Keith, a station next west from North Fork to Kamela, which is the station situated upon the summit of the Blue Mountains. Train 2140/ was merely a locomotive engine and its tank.</p> <p>Defendant claims that the track leading to the turntable at Kamela was blocked by other trains so it was necessary for 2140 to back down beyond North Fork, instead of turning, as is usual in such cases. Train 2140 had an electric headlight on the front of its engine, which would be at the east end while she was backing. At the rear end of the tank which, as the locomotive was backing, would be the front or west end of the train, there were placed the usual marker lights, one at each comer, and a white light in the center, but those lanterns would not throw sufficient light ahead to enable the conductor and engineer on the locomotive to perceive objects on the track, if the morning were otherwise dark. Except as signals to trains proceeding east, they were of no value.</p> <p>Before train 255 left Meacham, McClure, the conductor, asked the conductor on. 2140 to close the switch after his train, which was done. About a mile west of Meacham train 255 broke' in two, and deceased went back to flag any train that might be following, and as the accident was soon remedied 255 went on without him. A few minutes later 2140 came along and was flagged by deceased, who was taken on board and carried to Huron, a station about 7 miles west of Meacham, where they overtook 255, and deceased boarded his own train and proceeded with it to North Fork. Near Camp station, about 4 miles west of Huron, 255 broke in two again and was delayed about five minutes, when it was coupled up and proceeded to North Fork, which is about 2 miles west of Camp.</p> <p>Plaintiff’s evidence indicated that the tail lights and indicator on 255 were burning at Camp station, and there was a considerable down grade from there to North Fork. Train 255 had orders to side-track at North Fork for passenger train No. 4, bound east, which was due at that station at 4:07 a. m. What the running orders of 2140 were, is not disclosed, but the conductor, Guy E. Chapin, testified that at Huron deceased showed him the orders directing 255 to sidetrack at North Fork for No. 4; that at that time it was agreed between himself and deceased that deceased should flag 2140 into North Fork, and that 2140 should close the switch so as not to delay 255 when it left. According to the rules, 255 should have been in the clear upon the passing track at North Fork at 4:02 a. m. The evidence indicates that it arrived near the east end of the side-track about 8:56 a. m., made the usual service stop to enable the head brakeman to throw the switch for the side-track, which probably consumed not to exceed four or five minutes, and then started up, but had gone less than a car-length when it broke in two again. The effect of ■ breaking in two is to exhaust the air and set the brakes at emergency, causing a sudden stoppage of the train, and more or less of a bumping of the cars, as the slack is taken up. It is difficult to estimate the difference in effect, as to the bumping of the cars from an emergency stop and an ordinary service stop. The conductor testified in this instance:</p> <p>“It was a little out of the way for making an ordinary stop for a switch or anything. * * It would be a broken, — a break-in-to feature — where the air would be applied at once.”</p> <p>Mr. Hoskins, who was the only witness called in relation to the accident who was not at the time in the employ of the defendant, testified:</p> <p>That the stoppage resulted in a sudden bump so that “we kind of tipped forward, and it gave a couple of bumps so the air was set quickly. It was so we knew it had broke. * * It was unusual or different from a stop. It was unusual enough so that you would know something had happened to the car, that is: it broke.”</p> <p>The witness testified in substance, that when the break occurred, he heard an engine coming down in the rear of the train; that the sound was so distinct that he knew it was within the block, and that the crash from the collision came immediately after. Upon cross-examination the witness said:</p> <p>“It was not an almighty bump * * while a little bit more abrupt than just the stopping of a train. It was a sudden stop. ¥e were not going very fast at the time. There was quite a jerk to it.”</p> <p>Witness further testified in substance that it was not over two minutes after the break occurred until the collision.</p> <p>The testimony indicated that there was a bridge across the stream immediately east of North Fork station; that the bridge was 128 feet long; that the rear end of 255 was about two or three feet west of the west end of the bridge, and that the track approaches the bridge upon a curve, but that the curve was not sufficient to have prevented the rear end' of 255 from being observed at a distance of 200 feet east of the bridge, if the other conditions as to light had been favorable, or the tail lights had been burning upon the rear of the caboose. The evidence indicated that they were burning at Camp station, two miles east.</p> <p>The engineer of 2140 testified that he saw no lights as he approached the bridge. There was a downgrade from the east of about 1.37 to and across the bridge. The evidence was conflicting as to the physical light conditions. The witness, Hoskins, testified that day was just breaking and that objects, such as a car or a man, could be seen two or three hundred feet away.</p> <p>Chapin, the conductor of 2140, testified that it was very dark and smoky from forest fires, so he was unable to see anything ahead by natural light; that if the tail lights of 255 had been burning, he would have been able to have seen them in time to have avoided the collision. We take judicial notice of the astronomical fact that the morning twilight began at 3:44 a. m., and that the moon was about three hours high at the time of the accident.</p> <p>The following rules of the company were introduced in evidence:</p> <p>“When a train stops or is delayed under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. One-fourth of a mile from the rear of the train he will place one torpedo on the rail, continuing back one-half mile from the rear of his train, he will place two torpedoes on the rail, two rail-lengths apart. He may then return to the single torpedo where he must remain until relieved by another flagman or is recalled by the whistle of his engine. When recalled, if he does not see or hear an approaching train, the single torpedo will be removed (and not before), if conditions warrant, a red fusee will be displayed to protect his train while returning.</p> <p>“During foggy or stormy weather, in the vicinity of obscure curves or descending grades, or if the other conditions require it, the flagman will increase the distance.</p> <p>“Should a train be seen or heard approaching before flagman has reached the required distance, he must, at once place one torpedo on the rail, and, if by night or during foggy or stormy weather, display a red fusee, continuing in the direction of the approaching train.</p> <p>“If the flagman is recalled before reaching the required distance he will, if necessary, place two torpedoes on the rail two rail-lengths apart by day, and by night display a red fusee in addition, to protect his train while returning.</p> <p>“Lamps will be displayed one on each side of the rear of every train as markers to indicate the rear of the train; by day, unlighted, showing green lenses to the front and side and red lenses to the rear; by night, lighted, showing green lights to the front and side and-red lights to the rear; except when train is clear of the main track, when by day green lenses and by night green lights must be displayed to the front, side and rear, and except when a train is turned out against the current of traffic, when by. day green lenses and by night green lights must be displayed to the front and side, and to the rear by day green lenses and by night green light towards the inside and by day a red lens and by night a red light to the opposite side.</p> <p>“By night freight trains will in addition display a light in cupola of the caboose, showing green to the front and red to the rear, except when a freight train is clear of the main track when green light must be displayed to the rear.”</p> <p>Other facts appear in the opinion.</p> <p>At the close of plaintiff’s testimony defendant moved for a nonsuit, which was denied, and at the close of all the testimony, moved for a directed verdict, which was also denied. There was a jury trial and a verdict and judgment in favor of plaintiff for $15,000, from which, judgment defendant appeals.</p> <p>Petition for rehearing denied.</p> <p>In Banc.</p>

From Lane: George F. Skipworth, Judge. Department 2. Plaintiff alleges that he was doing business in the City of Seattle under the firm name of Retailers Advertising Association; that prior to the commencement of the action he had complied with Chapter 154, Laws of Oregon, 1913; that on or about May 6, 1916, the plaintiff entered into a written contract with the defendants, as partners under the firm name of Linn Drug Company, by which plaintiff was to deliver to defendants…

From Multnomah: William Galloway, Judge. Department 1. This is a suit to compel a conveyance of an undivided one third of certain lots in what is known as “Rosemont Addition to East Portland.” In 1891, plaintiff being the holder of the legal title to certain lands, conveyed the same to defendant as trustee, to sell and dispose of the same for the mutual benefit of plaintiff, defendant and one A. S. Haskell.

<p>Equity — Right to Voluntary Nonsuit — Motion Before “Trial.”</p> <p>1. In view of Sections 45, 46, 102, 105' 109, 113, 114, L. O. Ii., under Section 182, providing that nonsuit may be given against a plaintiff on Ms motion at any time before trial unless a counterclaim has been pleaded in defense, made applicable to suits in equity by Section 410, plaintiff may take a voluntary nonsuit after a demurrer has been filed and disposed of; the hearing on demurrer not being a “trial” within the meaning of Section 182, which refers to trial on the merits before a jury,</p> <p>Equity — -Right to Voluntary Nonsuit — Counterclaim.</p> <p>2. In suit by the state to set aside and caneel deeds to state lands on the ground of fraud, affirmative defenses pleaded by defendant, insufficient, considered independent of the original bill, to give defendant ground for affirmative relief, held not such a counterclaim as to prevent plaintiff from talcing a voluntary nonsuit before trial on the merits under Section 182, L. O. L., made applicable to suits in equity by Section 410.</p>

From Tillamook: George R. Bagley, Judge. Department 2. This is a suit brought by William A. Saling against the First National Bank of Tillamook, Oregon, to determine an adverse claim bf the defendant to certain real property under an attachment levied by it upon the property in question, as the property of Charles A. Saling, plaintiff’s son. It appears that the plaintiff was originally the unquestioned owner of the property in dispute.

From Multnomah: Calvin U. G-antenbein, Judge. In Banc. The plaintiff alleges that the defendant is an Oregon corporation; that about July 1, 1915, he entered into a parol agreement with it by which he was to sell and the defendant was to purchase not less than 2,500 cords of wood by March 1, 1916; and that said wood was to be delivered as ordered, at the contract price of $3.50 per cord for Number 1, and $3.00 per cord for Number 2 wood, f. o. b. Portland, payment to be made…

From Clatsop: James A. Eakin, Judge. In Banc. This was a suit to restrain the treasurer of Clatsop County from collecting certain penalties upon taxes not paid on April 1,1914, and arises out of the following facts: Section 3682, L. O. L., as amended by Section 20, Chapter 184, Laws of 1913, reads as follows: “Sec. 3682. When Taxes Payable. Taxes legally levied and charged in any year shall he paid before the 1st day of April following.

From Columbia: James A. EakiN, Judge. Department 2. Plaintiff instituted tbis suit to have a deed, executed by plaintiff to defendant J. E. Headlee, which, is absolute on its face, declared to be a mortgage. A decree was rendered in favor of plaintiff from which defendant appeals.

From Multnomah: Robert Gr. Morrow, Judge. Department 1. This is an action for the recovery of damages for the breach of a contract. The complaint recites that on January 2, 1914, plaintiff and defendants entered into a contract whereby plaintiff became the exclusive selling agent for Oregon and Washington of cereal products manufactured by defendants at their mill in Silver ton, for a term of five years.

From Josephine: FraNk M. Calkiks, Judge. Department 2. The plaintiff is a son of David Houck, now deceased, and Hilla A. C. Houck, who in April, 1907, were the owners of a portion of the John Thomas and Norman Patterson donation land claim situate in Josephine County, embracing 187.23 acres. The defendants are the surviving widow of David Houck and the sons and daughters of David and Hilla A. C. Houck.

Motion to Dismiss. From Multnomah: George R. Bagley, Judge. In Banc. In Banc.

From Lane: George F. Skipworth, Judge. ' Department 2. This is an appeal by defendants Annie Mande Martin and E. F. Martin from a decree foreclosing a mortgage given by them to Marilla S. Smith on January 21, 1914. The complaint is in the usual form.

From Clatsop: James A. Eakin, Judge. • In Banc. The defendant is charged with having violated the provisions of Section 2 of Chapter 207 of the Laws of 1917, by fishing for salmon, with a purse-net, in a portion of the Columbia River, in which such fishing is prohibited by the act mentioned.

<p>Appeal and Error — Without Objection to Confirmation of Sale Jurisdictional Questions Only Reviewable.</p> <p>1. Where no application to set aside the order of confirmation of sale of real property was made, and there was no attempt to call the lower court’s attention to want of service on defendants of motion to confirm as violating the court rules, and there being no action in the lower court raising and reserving this or other questions, the review is limited to jurisdictional questions and sufficiency of pleadings.</p> <p>Execution — Service of Motion to Confirm Sale Unnecessary.</p> <p>Z. Section 241, subdivision 2, L. O. L., as amended by Laws of 1917, page 64, requires the court to allow the order confirming sale, unless upon hearing it satisfactorily appears that the sale proceedings were substantially irregular to the probable injury of the objeetor, and service upon the judgment debtors of a motion to confirm is not required by statute, and, where they had knowledge of the final decree directing sale, they cannot be heard to eomplain of not being served.</p> <p>Execution — Notice to Confirm Sale of Land Subject to Rule of Court.</p> <p>3. A court, granting an order of confirmation of sale of real property, may construe its own rules as to requiring service of motion to confirm sale of real property upon the judgment debtor.</p>

From Wallowa: John W. Knowles, Judge. In Banc. This is a suit for an accounting between A. M. Bunnells, plaintiff, and W. E. Leffel, defendant. ■ The other defendants are brought in the case for the purpose of attaching funds placed in their hands by the defendant, W. É. Leffel.

From Benton: George F. Skipworth, Judge. Department 1. The plaintiff and his mother during the latter years of her life were tenants in common of a 32-acre tract in Benton County.

<p>Appearance — Defects in Process — Waiver—Answer upon Merits.</p> <p>1. The filing of an answer upon the merits constitutes a voluntary appearance and a waiver of any defect in the service of summons, though plea in abatement challenging jurisdiction of the person is joined with plea to the merits, notwithstanding Section 74, L. O. L., as amended by Laws of 1911, page 144.</p> <p>[As to test whether appearance is special or general, see note in Aun. Cas. 1914A, 1189.]</p> <p>Evidence — Written Contract — Sales—Negotiations.</p> <p>2. Where written order constituted complete contract, evidence of letters and telephone conversation between the parties during the negotiations, whereby it was agreed that terms should be different from those contained in the written instrument subsequently signed, was not admissible. '</p> <p>Sales — Failure to Deliver — Measure of Damages.</p> <p>3. The measure of damages for failure to deliver merchandise, in accordance with contract, if the articles have a market value, is the difference between the contract priee and the market value at time and place of delivery.</p> <p>Sales — Failure to Deliver — Damages—Purchase of Goods Elsewhere.</p> <p>4. While buyer is not required to go into the market and purchase goods elsewhere before bringing his action for seller’s failure to deliver, he may, if he sees fit, do so, and if in a successful effort to minimize the damage he incurs expense, he may recover such expenditures as an element of damages, so long as the total recovery does not exceed the difference between the contract priee and market price.</p> <p>Appeal and Error — Review—Harmless Error.</p> <p>5. In buyer’s aetion for seller’s failure to deliver spruce lumber, admission of evidence as to market value of higher grade of spruce than that called for by the contract was harmless to seller, where only effect of such evidence was to explain prevailing high priee of ail grades of spruee.</p> <p>Sales — Failure to Deliver — Extension of Time for Delivery — Evidence.</p> <p>6. In buyer’s aetion for seller’s failure to deliver, evidence as to agreement to extend time for delivery held sufficient.</p> <p>Sales — Failure to Deliver — Date of Breach — Evidence.</p> <p>7. In buyer’s action for seller’s failure to deliver, where there was evidence of agreement to extend time of delivery, seller’s letter to buyer, declining to make further deliveries, was admissible to fix data of breach.</p> <p>Appeal and Error — Discretion of Court — Rebuttal Testimony.</p> <p>8. Discretion of court in admitting evidence designed to prove original cause of action, by plaintiff on rebuttal, is not reviewable in absence of manifest abuse.</p> <p>Trial — Rebuttal Evidence — Discretion.</p> <p>9. In buyer’s action for seller’s failure to deliver lumber, where evidence as to market value was allowed to take a wide range upon tke part of both litigants, and seller introduced evidence of individual sales from June to September, court’s action in permitting plaintiff, during rebuttal, to introduce evidence of three sales during months of April, August and December was not manifest abuse of discretion.</p> <p>Damages — Interest—Unliquidated Claim.</p> <p>10. Buyer suing seller for failure to deliver is not entitled, to interest on his damages.</p> <p>Trial — Instructions—Evidence.</p> <p>11. Instructions directing jury to “do the best you can, according to all the evidence that has been introduced,” held not subject to objection that it permitted jury to indulge in speculation in reaching verdict.</p> <p>ON REHEARING.</p> <p>Pleading — Inconsistent Defenses — Joining Pleas in Abatement and to Merits — Effect.</p> <p>12. Section 74, L. O. I/., as amended by Laws of 1911, Chapter 99, providing defendant may set forth by answer as many counterclaims as he has, ineluding pleas in abatement, does not change the rule that defenses must be consistent, and that, where answer first denies a thing and then admits it, the latter controls; so a plea in abatement, on the ground that jurisdiction of the person had not been acquired, is overcome by a plea to the merits, in effect an allegation of general voluntary appearance.</p> <p>Courts — “Jurisdiction of the Subject Matter” — How Conferred.</p> <p>13. “Jurisdiction of the subject matter” means authority of the court to hear and determine the kind of case presented, is conferred by law, and lack of it, under Section 72, L. O. L., cannot be waived.</p> <p>Courts — Jurisdiction of Person — How Conferred.</p> <p>14. Jurisdiction of a person mi juris depends either on proper service of summons on him or on voluntary appearance.</p> <p>Appearance — General Appearance After Special Appearance.</p> <p>15. Though defendant’s appearance be a special one, limited to a particular purpose, yet if he appears and offers contest on the merits of the complaint, it is a general appearance, giving jurisdiction of the person as to all matters in controversy.</p>

<p>Criminal Law — Time of Trial — Congested Docket — Absent Witness.</p> <p>1. Indictment returned in September will not be dismissed for failure to set ease for trial during October term, to which it had been postponed on oral stipulation, due to congested condition of docket; and where motion to dismiss was not filed until accused had received notiee that trial was set for December, and there was no showing that he was unprepared because of absence of witness, or who witness was, whether he was out of jurisdiction, and what he would testify.</p> <p>[As to general principles controlling absence of witnesses as ground for continuance, see note- in 122 Am. St. Rep. 745.]</p>

<p>Original proceedings in disbarment.</p> <p>In Banc.</p> <p>On motion to strike petition.</p>

From Multnomah: Calvin U. Gantenbein, Judge. In Banc. A decree was entered in the Circuit Court in the above-entitled case on the eighteenth day of October, 1918, whereby it was decreed that a certain contract between the plaintiff and defendants be rescinded and annulled.

From Multnomah.: Robert -Tucker, Judge. Department 2. The defendant Hurlburt is sheriff of Multnomah County. The plaintiff is the owner of a lot in Irving-ton and the dwelling constructed thereon and resides there with her family, their actual physical occupation of the premises as their home having commenced on Thanksgiving Day of 1914.

From Clackamas: Robert Tucker, Judge. In Banc. The sole question involved in this appeal is, whether or not the defendants are entitled to attorneys’ fees in a condemnation proceeding brought by the state, to condemn a right of way for the Pacific Highway across defendants’ premises.

From Tillamook: George E. Bagley, Judge. Department 1. This is a suit to rescind a contract for the purchase of three lots in Central Addition to Bay City, the vendee being plaintiff, and the vendor defendant.

From Lane: George F. Skipworth, Judge. In Banc. In April, 1917, plaintiff filed his complaint in case No. 10,810, alleging that the defendant is a Missouri life insurance corporation, duly licensed to transact business in this state; that on March 31, 1914, plaintiff made application for a $10,000 policy with an annual premium of $400; that at the time of the application he paid the first premium, in consideration of which the defendant agreed that if it did not deliver the…

From Lane: George F. Skipworth, Judge. On motion to dismiss appeal. Department 2. This is a suit brought by the plaintiff against the defendant, Robert Mays Estate Company, a corporation, to compel the defendant to deed over to the plaintiff a certain 80-acre ■ tract of land situated in Lane County, Oregon. It seems that plaintiff was a younger brother of Robert Mays, deceased.

From Lane: George F. Skipworth, Judge. Department 2. This is a suit in equity brought by P. M. McPherson and Mary Ann McPherson, to foreclose a land sale contract, entered into May 1, 1913, between them and A. 0. Barbour, T. Rosalynd Barbour, M. M. Peery, and E. E. Kepner. Upon the death of P. M. McPherson, Seth M. McPherson and Walter McPherson, administrators of his estate, were substituted as plaintiffs instead of P. M. McPherson.

<p>Judgment — Erroneous Decree of Supreme Court cannot be Set Aside by Suit to Vacate.</p> <p>1. An erroneous decree of the Supreme Court cannot be.set aside, merely because erroneous, by an original suit, where the court had jurisdiction of the parties and of the cause.</p> <p>[As to perpetuation of legal error, see note in 73 Am. St. Hep. 101.]</p> <p>Courts — “Jurisdiction” Defined.</p> <p>2. “Jurisdiction” is the power to hear and decide.</p>

From Multnomah: John P. Kavanaúgh, Judge. In Banc. The purpose of this proceeding is to set aside by writ of review certain proceedings of the City of Portland, whereby the city authorized and entered upon the improvement of Union Avenue in said city, from the south line of Bryant Street to the south line of Columbia Slough. Road; and assessed the cost of the same to the property in the vicinity of said street and supposed to be benefited thereby.

From Klamatb: Frank M. Calkins, Judge. Department 2. The plaintiff alleges that at all times hereinafter stated he was the duly elected, qualified and acting district attorney in and for Klamath County and that as such district attorney and as agent of the defendant, under the provisions of Chapter 141 of Laws of 1915, he employed one Wynn “to do and perform labor for the defendant in and about procuring evidence in the matter of the illegal sale of intoxicating liquors in…

From Douglas: James W. Hamilton, Judge. Department 1. This proceeding was brought to review the action of the County Court of Douglas County in establishing a county road through plaintiffs’ premises. On the twenty-third day of April, 1917, a petition was filed in the County Court, sufficiently specifying the termini and general route of the proposed road, with the following proof of posting of notices, omitting the formal parts of the affidavit: I, G. 0.

From Multnomah: Robert G. Morrow, Judge. In Banc. The plaintiff is the widow of George Kuntz, who was employed by the defendant as an off-bearer for a ripsaw in its factory. This machine was situated in what is designated in the pleadings as the dimension-room. In a room above was another saw'known as the trimmer-saw.

' From Multnomah: George W. Stapleton, Judge. Department 1. By mistake John Dennison satisfied a mortgage owned by him, and upon discovery of his mistake brought this suit for the purpose of reinstating and foreclosing the mortgage. There was a decree dismissing the suit and the plaintiff appealed. On.

From Multnomah: William N. Gatens, Judge. Department 1. , The object of this litigation is to determine whether a deed, delivered to A. Welch, should be reformed by striking out a provision which purports to obligate Welch to pay a note and mortgage held by John R. Johnson. On October 28, 1911, John R. Johnson sold and conveyed a tract of orchard land in the Hood River section to Lillie J. Scott Ricord for the agreed price of $13,500.

From Douglas: James W. HamiltoN, Judge. Department 2. This is a very remarkable and unusual case. 'The plaintiff sues upon a promissory note. The defendants admit the note hut claim to have paid the same by the delivery of 36 head of hogs, weighing 7,772% pounds, at the market price of 15 cents per pound, amounting to the total of $1,165.87.

From Multnomah.: Robert Tucker, Judge. Department 1. On November 6, 1916, the defendant was the owner of the lot known as No. 680 East Harrison Street in the City of Portland, Oregon, and the plaintiff was the owner of a lot numbered 1608 Arch Street, in the City, of Berkeley, California.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. This action was originally instituted by and in the name of Toze Ljubich to recover damages, under the Oregon Employer’s Liability Act, against the defendant for the death of Ture Ljubich through the alleged negligence of defendant. Deceased was killed on the thirteenth day of September, 1915, and the complaint was filed March 1,1916.

From Multnomah.: Robert G. Morrow, Judge. On motion to dismiss appeal. Department 1.

<p>Appeal and Error — Sufficiency of Notice of Appeal.</p> <p>1. Under Section 550', subdivision 1, L. O. L., notice of appeal specifying the court in wbieh the judgment was rendered, giving the names of the parties, and notifying defendant and his attorney that plaintiff appealed' to the Supreme Court from the judgment for defendant and against plaintiff, entered in a named court on a given date, the undertaking on appeal served on defendant reeiting that the appeal was to the Supreme Court, held sufficient.</p> <p>Appeal and Error — Extension of Time for Filing Transcript not Beyond Next Term.</p> <p>2. Under Section 554, subdivision 2, L. O. L., where the next term of the Supreme Court after an appeal perfected January 16th commenced March 4th and ended October 7th, when the next term began,. the time for filing transcript was not extended beyond the next term by orders the last of which prescribed the time as until August 5, 1918.</p> <p>Exceptions, Bill of — Sufficiency of Bill Containing Transcript of All the Evidence.</p> <p>3. Bill of exceptions poriraying all proceedings of the trial, and certified to by the trial judge, to which a transcript of all the evidence was attached, held sufficient.</p> <p>Judgment — No Necessity to Plead Estoppel by Judgment not Belied on as Bar.'</p> <p>4. The rule that an estoppel by judgment to be available must be pleaded does not apply where the judgment, instead of being relied on as a bar to the aetion, is sought to be introduced in evidence merely as conclusive of some particular fact previously adjudicated.</p> <p>Pleading — Sufficiency of Complaint in Replevin Alleging Ownership and Bight of Possession.</p> <p>5. In- replevin for possession of a bond, the complaint alleging that plaintiff was the owner and entitled to possession was sufficient without amendment; plaintiff not being required to plead its evidence.</p> <p>Judgment — Effect as Estoppel in Subsequent Litigation.</p> <p>6. While the doctrine of the effect of a judgment as an estoppel in a subsequent action is limited to matters involved in the litigation, it is generally held to be equally applicable whether the point decided is the ultimate vital point, or only incidental, if necessary to decision of the ultimate point. .,</p> <p>Judgment — Conclusiveness in Subsequent Litigation as to Matters Necessarily Though, not Directly Determined.</p> <p>7. Judgment in a prior suit is deemed final and conclusive in subsequent litigation between the parties or their privies as to a matter necessarily determined or implied in reaching the final judgment, though no specific finding may have been made thereon, and even though it was not raised as an issue by the pleadings.</p> <p>Judgment — Conclusiveness as to Person Standing in Shoes of Parties Defendant.</p> <p>8. Judgment in action by payee of note against the makers held conclusive, iA tlie payee’s action to recover a bond from the person holding it in the right of the makers, as to whether bonds had been paid for by the payee, so that it acquired title to them.</p> <p>Evidence — Admission by Maker of Note Competent Against Stakeholder Claiming Bond for Maker.</p> <p>9. Any admission or,claim by makers of a note in regard to the point whether certain bonds were received by the payee bank in part payment held admissible, as against a disinterested stakeholder claiming title to a bond against the bank for the makers.</p>

<p>Mortgages — Wliat Constitutes “Purchase-money Mortgage” Entitled to Priority of Liens.</p> <p>1. Generally, mortgage executed by purchaser contemporaneously with acquirement of legal title, or afterwards as part of same transaction, is a “purchase-money mortgage,” regardless of whether executed to vendor or third person, and entitled to preference as such over all other elaims or liens arising through the mortgagor though prior in point of time.</p> <p>Mortgages — What Constitutes “Mortgage to Secure Payment of the Balance of the Purchase Price.”</p> <p>2. A mortgage executed to “secure payment of the balance of the purchase price,”, within Section 426, L. O. L., providing that upon foreclosure of such mortgage, mortgagee shall not be entitled to deficiency judgment against purchaser, is a mortgage given concurrently with a conveyance of land, by purchaser to vendor, on the same land, to secure the unpaid balance of' the purchase priee, and a mortgage executed) by purchasers to vendor’s mortgagee in consideration of the latter’s release of the land purchased from its mortgage is not within the statute.</p>

<p>Appeal and. Error — Filing of Transcript Within Statutory Time ox Extension Thereof Jurisdictional.</p> <p>1. The filing of a transcript in the Supreme Court within the time allowed by law, or within any extension of that time, is jurisdictional, and the Supreme Court has no power to excuse a default.</p>

<p>Reformation of Instruments — Mortgage Assigned, to Holders in Due Course Cannot be Reformed.</p> <p>1. Against persons to whom- note and mortgage security were assigned, before maturity and without knowledge of defects, by payee on their agreement to furnish him a home thereafter, their obligation in which respect they have fulfilled, there can be no reformation of the assigned instruments; the assignees being holders in due course, who under Section 5890, L. O. L., hold the instruments free from any defenses which might have been available against the payee.</p> <p>[As to assignment of mortgage and its effect, see'note in 14 Am. Dec. 512.</p> <p>As to right to reform description in deed or mortgage as against purchaser without notice, see note in Ann. Cas. 1918D, 147.]</p>

<p>Reformation of Instruments — Burden of Proof on Plaintiff to Prove Mistake.</p> <p>1. In action to correct alleged mutual mistake in indemnity policy, plaintiff has burden of proving the mistake by a preponderance of evidence.</p> <p>Reformation of Instruments — Complaint Must Allege Original Agreement and Point Out Mutual Mistake.</p> <p>2. In suits to reform a written instrument on the ground of mistake, the complaint must clearly state what the original- agreement of the parties was, and point out with precision wherein there was a misunderstanding, that the mistake was mutual and did not arise from the gross negligence of the plaintiff, or that the misconception originated in the fraud of the defendant.</p> <p>Insurance — Application for Liability Policy Presumably for Ordinary Policy.</p> <p>3. Where application was made for employer’s liability p&liey without going into any details as to the conditions to be placed in the policy, it will be presumed that the ordinary form of policy was to be .used.</p> <p>Reformation of Instruments — Evidence Insufficient to Show Mutual Mistake.</p> <p>4. In action to correct employer’s liability policy upon ground that words “Ño exceptions” had by mistake been placed after printed statement that no such insurance had “been canceled or the renewal thereof refused, exeopt as follows,” evidence held to preponderate against the claim that the mistake was mutual.</p> <p>Insurance — Statement as to Other Insurance Construed as Absolute.</p> <p>5. Insured’s statement that no insurance of specified kinds “has been declined, nor has any such insurance been canceled or the renewal thereof refused, except as follows,” if followed by no exception, must bo taken to be absolute, since it is incumbent upon insured'to qualify statement if there is an exception, the exception being presumably within his knowledge, and the legal effect of such unqualified statement, where exception is within knowledge of insured, but unknown to insurer, being same as if words “no exception” followed.</p>