Volume 94 — Oregon Reports

<p>Equity — Judgment—“Decree” and “Judgment” Distinguished.</p> <p>1. The final determination of an action at law by a court in Oregon is called a “judgment,” while that of a suit in equity is denominated a “decree.”</p> <p>Mortgages — Construction of Statutes Regulating Foreclosure.</p> <p>2. No rule having existed at common law respecting the foreclosure of mortgages, statutes regulating the procedure in such a case are not in derogation of common law and should not be strictly construed.</p> <p>Mortgages — Foreclosure by Granting Equity of Redemption not of Common-law Origin.</p> <p>3. Unless a custom of the common law had its origin when the memory of man runneth not to the contrary, or from the beginning of the reign of Richard I, the rule could not be classed as part of the common law, so that foreclosure of mortgages by granting equity of redemption is not of common-law origin, having been instituted probably in the reign of Queen Elizabeth.</p> <p>Statutes — Liberal Construction of Remedial Enactments.</p> <p>4. While statutes conferring special privileges on individuals should be construed strictly against them, enactments to redress existing grievances and for the protection of rights are remedial and should be liberally interpreted.</p> <p>Constitutional Law — Statute Protecting All Members of Class not Class Legislation.</p> <p>5. Legislation which protects alike all the members of a class that are or may be affected thereby is not obnoxious to Article I, Section 20, of the Constitution.</p> <p>Mortgages — Foreclosure as Bar to Action for Deficiency.</p> <p>6. Although Section 426, L. O. L., abolishing deficiency judgments upon foreclosure of real estate purchase price mortgages, does not so modify Section 429-, relating to aetion at law on indebtedness secured by mortgage, as to prevent the holder of purchase-money mortgage note from disregarding the mortgage and bringing aetion for personal judgment on the note; yet, where sueh holder does sue to foreclose, then, since the court is inhibited by Section 426 from awarding under Section 425 a conditional recovery or '“deficiency judgment” against the mortgagor, its determination of the entire sum due upon the personal obligation, as required by Section 422, is- not equivalent to decreeing recovery thereof, except only as the award is limited to the mortgaged realty; and, as the foreclosure sale necessarily exhausts the power given to the court, the effect as res judicata of the decree thus denying deficiency judgment is to prohibit a later separate action at law by the mortgagee for such a deficiency.</p> <p>Appeal and Error — Duty of Supreme Court to Announce the Law.</p> <p>7. Under Article VII, Section 3, of the Constitution, when some other determination necessarily follows from the conclusion reached, it is the duty of the Supreme Court to announce the law in order to curtail expenses and promote the peace of society.</p> <p>Evidence — Judicial Notice of Financial Depression.</p> <p>8. The courts should take judicial notice that in 1897 and for some time thereafter great financial depression prevailed in the Pacific Coast states.</p>

<p>Covenants — Conclusiveness of Judgment After Notice to Covenantor.</p> <p>1. Where action on covenant against encumbrances was brought by grantee to recover amount of judgment he had been compelled to pay in action by owner of outstanding lease, of which action defendant grantors had been notified, and also to recover $50 attorney’s fees in the former action, the reasonableness of such fees not having been questioned in the former action, there was no necessity of submitting that part of the ease to the jury; defendants’ contention being that they were not liable therefor.</p> <p>Covenants — Outstanding Lease as Breach of Covenant Against “Encumbrances.”</p> <p>2. The existence of a valid lease to another at the date of the warrantors’ deed was a breach of their covenant against encumbrances, an “encumbrance” being a burden on the land which depreciates its value, as a lien, easement, or servitude.</p> <p>Crops — Covenants—Eight to Growing Crops on Failure to Eeserve in Deed.</p> <p>3. As between vendors and purchaser a deed to the property upon whieh a crop is growing conveys to the purchaser the growing crop as a part of the real property, unless the same is reserved by the vendors in the deed, and this is true even if the purchaser knew that there was an outstanding lease upon a portion of the premises at the time of purchase.</p> <p>Landlord and Tenant — Eight of Tenant to Crops as Against Landlord and His Grantee.</p> <p>4. A tenant is entitled, as against the landlord and his successors, to the annual crops raised on the land during the tenancy, and as between them such crops are not a part of the freehold, but the property of the tenant, in the absence of contrary stipulation.</p> <p>[As to title to or interest in crop,, see note in 98 Am. St. Eep. 956.]</p> <p>Covenants — Measure of Damages for Breach of Covenant Against Encumbrances.</p> <p>5. Generally the measure of damages for breach of a covenant against encumbrances by reason of an outstanding lease is the value of the use of the premises during the remainder of the life of the lease.</p> <p>Covenants — Eeeovery of Expenses Incurred in Defending Title.</p> <p>6. Grantee in a warranty deed is entitled to expenses incurred in defending title against the claim of a third party.</p> <p>Covenants — Damages from Breach, of Covenant Against Encumbrances.</p> <p>7. Where, -at time of conveyance with covenant against encumbrances, there was an outstanding lease, the tenant under which had ■planted a crop, which the grantee thereafter harvested and sold, the grantee could recover from the grantors the amount of the judgment and costs secured against her in an action, of which warrantors were notified, by the tenant for the value of the crop so sold by the grantee.</p> <p>Covenants — Conclusiveness of Judgment After Notice to Covenantor.</p> <p>8. Grantee having notified defendant warrantors to defend an action brought by tenant under outstanding lease against grantee for conversion of crops not reserved in the deed, the vendors are bound by the judgment in that case to the same extent as though they had been parties to the record, and such judgment is conclusive upon them as to the existence and validity of the tenant’s outstanding lease from the former owner, and as to the amount grantee was compelled to pay tenant in tenant’s action for conversion of crops growing on the land at date of purchase.</p> <p>Judgment — Conclusiveness on Party Notified to Defend.</p> <p>9. Where a party against whom an ultimate liability is claimed is fairly and fully notified of the claim, and that the action is pending and given full opportunity to defend or to participate in the defense, if he then neglects or refuses to make any defense he may claim to have, the judgment will bind him in the same way and to the same extent as if he had been made party to the reeorcL</p> <p>Covenants — liability to Covenantee for Attorney’s Fees.</p> <p>10. Where grantee in warranty deed was obliged to ineur the expense of $59 for attorney’s fees in defending an action, of which her warrantor was notified, by tenant under a lease outstanding at the time of conveyance, for conversion by grantee of sueh tenant’s crop then on the land she could recover for such expense from her warrantor.</p> <p>Appeal and Error — Review of Rulings on Evidence Unnecessary.</p> <p>11. In purchaser’s action against vendor for breach of covenant against encumbrances where tenant, under an outstanding lease, had obtained a judgment against purchaser, it is unnecessary on appeal to determine the question in regard to the introduction of oral evidence as to what was said in relation to the crop at the time of negotiations for the sale.</p>

<p>Mortgages — Future Advances — Sufficiency of Evidence.</p> <p>1. In suit to foreclose a mortgage for future advances, evidence held insufficient to establish plaintiff’s right to more than $83.40 on an amount of $250 claimed by plaintiff to have been paid by the original mortgagee, her deceased husband, as attorney for defendant mortgagor, for a metallic casket for the remains of defendant’s husband.</p> <p>Mortgages — Future Advances.</p> <p>2. In suit by widow of attorney, who had aeted for defendant widow frf his friend, to foreclose a mortgage given by defendant to such attorney to secure advances, the attorney having filed a voucher against the estate for an amount of $50 claimed to have been paid for exhuming and transporting the remains of defendant’s husband for interment elsewhere, the 'additional charge of $111 shown in his personal account against the widow, who insisted that even the $50 charge is excessive, should be eliminated.</p> <p>ON REHEARING-.</p> <p>Appeal and Error — Modification of Opinion.</p> <p>3. In an' action to foreclose a mortgage, where it appears that the note which the mortgage secured was given to cover future advances, the Supreme Court on appeal will consider the action as one for an accounting and dispose of the matter, where it is clear that no evidence other than that before the court could possibly be produced in another formal suit for an accounting.</p> <p>Mortgages — Burden of Proof — Advances by Mortgagee.</p> <p>4. In an action to foreclose a mortgage securing a note given to cover future advances, the burden of proof rests upon the plaintiff to' establish the amount of money advanced to the defendant.</p> <p>Mortgages — Evidence on Foreclosure — Items to be Considered.</p> <p>5. In an action to foreclose a mortgage securing a note given to cover future advanees, the faet that mortgagor shipped mineral water to the mortgagee must be disregarded, where there is no evidence as to the quantity of water shipped or its market value.</p>

<p>Municipal Corporations — Assessments Including Engineer’s Charges Valid.</p> <p>1. Where an ordinance authorizing the opening of a street authorized engineer’s charges to be included as a part of the improvement, engineering expenses could be imposed by assessment, although the engineer was not specially employed for the particular improvement and was paid a regular salary by the eity from the general fund.</p> <p>Municipal Corporations! — Improvement Contract Including Future Repairs Does not Invalidate Assessment.</p> <p>2. A contract for paving, which contained provision “that the pavement shall be free from any defects due to faulty workmanship or materials, and that for a period of five years from its completion the city contractor will at his own expense repair and make good any defects arising from, such faulty materials,” etc., was not invalid as being a contract for repairs not chargeable to private property.</p> <p>Municipal Corporations — Contract for Paving not Unlawful Delegation of Powers to Engineer.</p> <p>3. Where a civil engineer, upon request of city oflicials, has prepared plans and specifications for contemplated improvement, and the officials enter into a contract for the construction thereof, there is not an unlawful delegation to the engineer of the right to decide what are necessary details; the action of the eity officials in entering into the contract making the plans and specifications 'of the engineer their own.</p> <p>Municipal Corporations — Petitioner for Improvement Estopped, to Attack Assessment.</p> <p>4. Where an abutting property owner petitions the city council to pave a street, the aetion of the council in contracting for and making the improvement is conclusive, and the petitioner cannot complain that the cost of the improvement exceeds the benefits.</p> <p>Municipal Corporations — Paving Assessment on Property Fronting on Two Streets.</p> <p>5. - One owning property on a corner abutting upon one street 90 feet and on another 240 feet cannot maintain that his property does not front upon the street on the long side of his property, and that he is not liable for the burden imposed by paving of such street under a charter providing that each lot or part of lot abutting a street or alley, graded, improved or repaired shall be liable for the full cost of making the same upon the half of the street or alley in front or abutting upon it, but that, when the land adjacent to such street shall not have been laid off: into lots or blocks, then the cost of the improving such street shall be assessed to the owner or owners of such land within 160 feet of such improved street.</p> <p>Municipal Corporations — Assessments for Improvements not Objectionable Because Contract Provided for Eight-hour Day.</p> <p>6. In view of Laws of 1913, page 11, expressly forbidding a municipality either directly or through a contractor to require more than eight hours per day or forty-eight hours per week from any employee, one assessed for an improvement cannot maintain that city had no right to limit the employment of laborers for more than eight hours per day in its contract for the improvement.</p> <p>Easements — Not Interfering with Right of Owner to Use Soil. /</p> <p>7. The conveyance of an easement in land does not pass the title or interfere with the right of the owner of the soil to occupy it for any purpose not inconsistent with the easement.</p> <p>Waters and Watercourses — Right of Owner to Improve Easements Appurtenant to Mill-race.</p> <p>8. Where owner of mill-raee had an easement in property along the side of the race in that it had the right to widen the same when necessary, abutting owner, who undertakes to improve and occupy the land abutting on the mill-race, is not a trespasser, unless his occupation or improvement is such as interferes with the operations of the owner of the mill-raee.</p> <p>Municipal Corporations — Retaining Wall Improvements Built on Property Subject to Easement.</p> <p>9. A contract of a city for the paving of a street was not invalid by reason of the required construction of -a retaining wall at the end of the street abutting upon a mill-race, although the owner of the mill-race had an easement on the property where the retaining wall was built, in that it had a right to widen and deepen its mill-race.</p> <p>Municipal Corporations — Departure from Contract for Improvement.</p> <p>10. Where a city was authorized to pave a street which ran to the banks of a mill-race, the construction of a retaining wall at the end of the street abutting on the mill-raee was not a departure from the purpose of the improvem'ent, although made for the whole width of the street, for the purpose of also supporting a fill for sidewalks that might be constructed.</p>

<p>Criminal Law — Jurisdiction.</p> <p>1. Where a eourt has jurisdiction ■ of a crime a statute simply-conferring same jurisdiction on another court does not deprive former of its jurisdiction, in absence of an express provision or clear implication to that effect, but merely confers concurrent jurisdiction.</p> <p>Criminal Law — Federal Jurisdiction.</p> <p>2. The criminal jurisdiction of federal courts is confined to crimes under federal statutes except as to common-law offenses committed on the high seas, or in places or districts within the states which have been ceded to the United States, and which, when the crime was committed, were under the exclusive jurisdiction of the United States.</p> <p>Criminal Law — Jurisdiction—Offenses Against State and United States.</p> <p>3. Offenses which are directed against the sovereignty of the state or whieh affect its population are within the jurisdiction of the state courts, although such offenses may also be directed against the sovereignty of the federal government, and may be thus within the jurisdiction of both the federal and the state courts.</p> <p>Criminal Law — Jurisdiction of State Court — Forgery.</p> <p>4. Where the uttering of a forged receipt constituted forgery under the laws of the state, the jurisdiction of the state court is not ousted by the fact that the same aets, consisting of uttering and publishing a forged instrument to a referee in bankruptcy appointed by the federal court, are also an offense under the laws of the United States.</p> <p>Forgery — Indictment—Purport of Instrument.</p> <p>5. Where an indictment for forgery described a false and forged “writing, check, receipt and instrument, being in the form of and purporting to be an indorsed, canceled and paid check, and being in the words and figures as follows, to wit,” followed by a copy of the eheck with the indorsement, words, figures and marks thereon, it was not essential that the words “purporting to bear the indorsement of,” should be employed.</p> <p>Forgery — Indictment—Legal Efficacy of Instrument.</p> <p>6. In an indictment for uttering a forged receipt, it should appear from the indictment that the receipt is prima facie capable of being used as legal proof in some way.</p> <p>Forgery — “Receipt”—Canceled Check.</p> <p>7. A canceled check or check indorsed and stamped “Paid” may do the subject of forgery under Section 1996, L. O. L., such an instrument serving in the business world as a voucher or receipt for the payment of the amount of money named in the cheek.</p> <p>Indictment and Information — Statutory Offense.</p> <p>8. It is the general rule that, if an indictment is based upon d statute, it is sufficient if it follows the wording thereof.</p> <p>Forgery — Indictment—Name of Person Defrauded.</p> <p>9. Under Section 1996, L. O. L., an indictment for uttering a forged receipt need not state the name of the person defrauded.</p> <p>Forgery — Indictment—Proof.</p> <p>10. It being alleged in an indictment that a forged cheek, was published to A., as a referee in bankruptcy, it was neeessary for the proof to show the same.</p> <p>Forgery — Evidence.</p> <p>11. Under an indictment for uttering a forged canceled check as a receipt, alleging that it was published tó A. as referee in bankruptcy, it was proper for the state to show that A. was acting as a referee in bankruptcy by appointment of the federal court, and to introduce evidence of the proceedings in bankruptcy in the bankrupt estate of the defendant, as -part of the circumstances of the transaction relating to the canceled cheek.</p> <p>Forgery — Indictment—Tenor of Instrument.</p> <p>12. Under Section 1996, L. O. L., relating to forgery, it was not necessary to set out the tenor of the instrument alleged to be forged, in view of page 1013, Form 15, L. O. L.</p> <p>Forgery — Indictment—Name of Person Defrauded.</p> <p>13. Under Section 2004, L. O. L., the name of the person defrauded need not be inserted in an indictment for uttering a forged receipt.</p> <p>Forgery — Indictment—Legal Efficacy of Instrument.</p> <p>14. An averment in an indictment for uttering a forged receipt in the form of a canceled check, indorsed and stamped “Paid,” etc., that the instrument was published to A., as referee in bankruptcy, as a receipt and as evidence of the payment of a debt, was all the extrinsie facts necessary to set out, in addition to the instrument itself, to show that the receipt, if it was genuine, would be of force as legal proof.</p> <p>Forgery — Indictment—Extrinsic Matter.</p> <p>15. In an indictment for uttering a forged instrument, where the meaning of the transaction can be sufficiently extracted from the instrument itself, it is not necessary to state matters of evidence so as to make out more fully the charge.</p> <p>Indictment and Information — Certainty.</p> <p>16. Under Section 1449, L. O. L., an indictment will not be held insufficient where the aets charged as a crime were displayed with such degree of certainty as to fully inform defendant of nature of offense with whieh he was charged, and to enable a person of common understanding to know what is intended and to prepare for his defense.</p> <p>F orgery — Indictment—Receipt.</p> <p>17. A receipt for money paid is not such instrument that an indebtedness from the person to whom it purports to be given to the maker of it need be shown in an indictment for uttering a forged receipt, because, if in fact’ there were no sueh indebtedness, still the party giving it would be liable for the money acknowledged to have been received.</p> <p>Forgery — Alteration of Instrument.</p> <p>18., One who alters a genuine instrument may be charged with forgery of the entire instrument.</p> <p>Criminal Law — Weight of Evidence — Review.</p> <p>19. It is not the province of the Supreme Court on appeal in a criminal case to consider the weight of the evidence.</p> <p>Forgery — Uttering Instrument — Evidence—Directed Verdict.</p> <p>20. In a prosecution for uttering a forged receipt, namely, a canceled check stamped “Paid” and indorsed, held, that evidence strongly supported a conviction, so that a request to direct a verdict of acquittal was properly denied.</p> <p>Forgery — Instructions.</p> <p>21. In a prosecution for uttering a forged receipt, namely, a canceled cheek stamped “Paid,” and indorsed, an instruction relative to the theory of the state that the indorsement was forged on a cheek, and that, taken together with the cheek, it operated and was used as a receipt for money paid, held properly to submit the issues in the ease.</p> <p>Criminal Law — Orders Appealable — Motion for New Trial.</p> <p>22. General Laws of 1915, page 96, amending Section 548, L. O. L., so as to allow an appeal from an order setting aside a judgment and granting a new trial, does not apply to criminal actions.</p> <p>Criminal Law — Appeal—Exceptions.</p> <p>23. In a prosecution for uttering a forged receipt, accused cannot complain that account-books, exhibits in the case, were removed from courtroom during argument, where it appeared that they were returned, and an offer made by counsel for the state to have them sent to the jury while they were deliberating, but, objection being made by defendant’s counsel, they were not so disposed of; no exception having been taken in regard to the matter nor any ruling having been made.</p> <p>ON PETITION EOR REHEARING.</p> <p>Bankruptcy — Testimony of Bankrupt Used Against Him in Criminal Prosecution.</p> <p>24. Bankruptcy Act of 1898, Section 7 (U. S. Comp. Stats. Section 9591), providing that no testimony given by bankrupt shall be offered against him in any criminal proceeding, does not apply to the language and acts of a bankrupt who in the course of his examination upon the witness-stand commits a fresh crime, such as perjury or the uttering of a forged instrument.</p>

<p>From Multnomah: Calvin TJ. GUntenbein, Judge.</p> <p>Department 2.</p> <p>This is an action to recover for the price of onions alleged to have been sold and delivered to defendant. The complaint alleges that on and between the 10th and 20th of December, 1917, the plaintiff, at the instance and request of defendant, sold and delivered to defendant certain goods, wares and merchandise, to wit, onions, of the value of $674, which sum defendant agreed and promised to pay.</p> <p>The answer was (1) a general denial, (2) a plea of the statute of frauds, in that there was no note or memorandum of the transaction signed by defendant, as required by Section 808, L. O. L., and that defendant did not receive any part of the goods or pay any part of the purchase price therefor.</p> <p>For a further defense defendant alleged:</p> <p>“That on or about the 20th of October, 1917, defendant agreed with plaintiff that defendant would purchase from plaintiff all of his certain onions which would grade up to a certain standard, to-wit: that they should be of a certain size, known to the trade as ‘medium,’ and that they should be delivéred to defendant within a reasonable time ,* that for all of - sueh onions so graded and delivered, defendant agreed to pay plaintiff at the rate of two cents (2c) per pound.</p> <p>‘‘That thereafter and on or about December 20,1917, plaintiff informed defendant that he, the plaintiff, was ready to deliver said onions, but defendant on inspecting them, found them to be not of the grade specified, and to contain sprouts and decay, and thereupon notified plaintiff that he, the said defendant, would not accept said onions.</p> <p>“That plaintiff has failed and neglected to deliver to defendant onions as specified and still refuses and neglects to do so.”</p> <p>i By way of counterclaim defendant reiterated the allegations contained in the second separate defense, and further alleged that he had loaned plaintiff 334 sacks of the value of $50, in which to sack said. onions; that he had demanded of plaintiff the return of said sacks or payment of their value, and that plaintiff had failed to pay for or return the sacks. There was a prayer for judgment for $50.</p> <p>i The new matter having been put at issue by appropriate denials, the case came on for trial before a jury. The plaintiff introduced evidence tending to show that the onions in question had been stored in bins, one above the other, and that previous to closing the sale the defendant had examined the onions and offered plaintiff $2.35 a sack for the onions, graded to one and one half inches in diameter and $1.50 a sack for the smaller ones; that plaintiff refused to sell the onions graded at that price, on the ground of inability to obtain help to do the grading, and offered to sell them “just as they ran,” meaning without grading them, at two cents per pound. The offer also required that defendant should furnish the sacks. And it was required by the defendant that the onions were to be delivered at the warehouse of the Oregon Electric Railroad Company at Waconda; that subsequently defendant called plaintiff up over the telephone and accepted his offer and sent the sacks, whereupon plaintiff sacked the onions, throwing out decayed and rotten ones, and took them to the Waconda warehouse and had them weighed and delivered the weight slips to Mr. Harris, who defendant admits was his agent. Harris, according to plaintiff’s testimony, took the weight slips and told plaintiff that defendant would send him a check for the money when he received them. Two days after, according to Harris’ testimony, he examined the onions and found them unsorted and containing rotten and spoiled onions and dirt, and so informed defendant, who thereupon refused to pay for them.</p> <p>There was a sharp conflict of testimony in regard to the condition of the onions when sacked, defendant’s testimony tending to show that they were in bad condition, sprouted and dirty, and plaintiff’s testimony tending to show that they were sound and in fair condition, and fully complying with the terms of the contract, as stated by plaintiff. There was also a conflict as to the terms of the contract,' defendant denying plaintiff’s version of it and contending that the onions were to be sorted and graded, and that he was to pay $2 a sack for the best grade, which were to be at least one and three quarter inches in diameter, and that those of a smaller size were to go in a senarate grade at $1.25 a sack.</p> <p>There was a jury trial and a verdict and judgment for plaintiff, from which defendant appeals.</p>

From Multnomah.: Calvin U. Gantenbein, Judge. Department 1. This is a suit to quiet title. A trial resulted in a decree for the plaintiff W. C. Krueger. The defendant Carl O. Brooks appealed. The litigants own and occupy adjoining tracts of land.

<p>Petition to modify decree as to costs allowed.</p> <p>Department 1.</p>

From, Multnomah: Calvin U. Gantenbein, Judge. Department 1. Claiming to be the owner and entitled to the possession thereof, the plaintiff instituted an action in ejectment against the defendant Martin to recover from him the possession of a certain' lot described in the complaint. The Peninsula Security Company was substituted for and,defended in place of Martin.

From Douglas: James W. Hamilton, Judge. Department 2.' The plaintiff is attempting to recover from the defendant the amount due on a promissory note on the theory that the bank is liable as an indorser to her, notwithstanding the fact that when'she received the note from the bank the instrument contained an unfilled blank for a payee and the name of the bank did not appear in or on the note. The court sustained a demurrer to the amended complaint.

<p>Fish — Whether Destruction of Fish-traps by Tugboat was Negligence for Jury;</p> <p>1. In an action by the owner of a fish-trap against the owner of a barge for damages resulting to the trap, the questions whether or not the defendant negligently failed to maintain sufficient lights, to keep a lookout, or to see and avoid the trap, or operated the flotilla at a dangerous speed, or negligently failed to stop the tugboat and her tow and avoid the fish-trap, were properly for the jury.</p> <p>Navigable Waters — Columbia River is a Navigable Stream.</p> <p>2. The Columbia River is a navigable stream, and as such is a common highway “and forever free,” and the right of navigation therein is not only given by the common law, but is preserved by the statute admitting the state of Oregon into the Union.</p> <p>Fish — Paramountcy of Right of Navigation Does not Extinguish Common Right of Fishery.</p> <p>3. The paramountcy of the right of navigation does not extinguish the common right of fishery, although the former does, whenever there is a necessary conflict, limit the latter and compel it to yield, so far as the right of fishery interferes with the fair, useful, and legitimate exercise of navigation rights, but the navigator must use ordinary care and due regard to property rights of fishermen.</p> <p>[As to the right to fish in navigable waters, see note in 21 Ann. Cas. 777.]</p> <p>Navigable Waters — Unauthorized Obstruction to Navigation Does not Permit Its Negligent Destruction.</p> <p>4. The public is entitled to navigate upon any part of the navigable waters of a stream without unlawful obstructions, and an obstruction erected under grant of authority beyond the limits of the orders of authorization is unlawful, and a nuisance only to the extent the authority was exceeded, and that it is wholly or partly unauthorized does not necessarily give a navigator authority to destroy it negligently.</p> <p>Trial — Instruction Omitting Reference to Negligence Cured by Subsequent Instruction.</p> <p><5. In an action íot destruction of a fish-trap by a tug, an instruc-. tion as to defendant’s negligence that “it is charged” “that the boat was being operated outside of and beyond the channel or course in which vessel should be operated,” while insufficient, when standing alone, for omission to allege “negligently operated,” the error was cured by another instruction covering negligent operation.</p> <p>Fish — Whether Destruction of Fish-trap by Tugboat was by Negligent Navigation Question for Jury.</p> <p>6. In an aetion for the negligent destruction of a fish-trap by a tugboat, an instruction that it was the “duty of défendant to operate and navigate said vessel in the channel or usual course in which vessels navigating said river should be operated and navigated” held erroneous, since it was not negligence per se to operate the boat outside of the usual course followed by vessels; the matter being a question of fact for the jury.</p> <p>Fish — Evidence Sufficient to Show Authorized Construction of Fish-trap.</p> <p>7. Where plaintiff, in an aetion for damages for injuries resulting from his fish-trap being struct by defendant’s tugboat, was authorized by both the State of Washington and the United States to-erect and maintain the trap, evidence held to show that a part, if not all, of the portion of the trap injured or destroyed was erected in accordance with sueh permits and was a legal obstruction.</p> <p>Courts — Action for Destruction of Fish-trap Maintainable in State Other Than Where Located.</p> <p>8. Where no part of a fish-trap was driven into the earth, except piling, all of whieh was driven by the owner with the intention of removing at the end of the season, the trap was “personal property,” and an action against the owners of a tugboat for its destruction was transitory, and could be maintained in a state other than where the trap was located.</p> <p>Damages — Evidence of Daily Catch Admissible in Action for Destruction of Fish-trap.</p> <p>9. In an aetion against the owner of a tugboat for destruction of plaintiff’s fish-trap, although such trap may not have “rental value,” in the usual sense of the term, yet it has a usable value, which plaintiff would be entitled to recover, and evidence as to the amount of the fish catch just prior to injury or destruction and just after repair, together with evidence of the catch of other near-by traps between such times, was competent evidence, not for the purpose of measuring the compensation, but for estimating the usable or rental value.</p> <p>PETITION FOR EEHEAEING.</p> <p>Trial — Instruction—Cure of Error by Other Instruction,</p> <p>10. A party cannot claim that an erroneous instruction was not prejudicial because another instruction correctly stated the law, where the erroneous instruction stood out as boldly and»prominently as the proper instruction.</p>

<p>Municipal Corporations — Invalidity of Perpetual Franchise.</p> <p>1. A franchise ordinance granting a right to lay and protect water-mains in the streets and alleys of the town “so long as this contract shall remain inviolate” constitutes a perpetual utility franchise, and hence is invalid.</p> <p>Waters and Watercourses — Franchise in Streets — Forfeiture.</p> <p>2. A franchise contract between a city and another for the laying and protection of water-mains, providing that the rights and privileges thereunder might be forfeited by any future council upon failure to supply a sufficient amount of water, is within the rights of the parties who may thus contract about the remedy for breach.</p> <p>Waters and Watercourses — Legislative Power of Council to Declare a Franchise Void by Ordinance.</p> <p>3. The city council is a legislative body, and, in respect to perpetuating or ending a water supply franchise ordinance containing a provision that rights thereunder might be forfeited by the council for breach, could forfeit such rights only by means of a repealing ordinance declaring the franchise ordinance void.</p> <p>Constitutional Law — Waters and Watercourses — Council’s Legislative Act in Forfeiting Franchise Contract Binding upon Court— Obligation of Contracts.</p> <p>4. Where a franchise ordinance conferred express authority upon a city council to revoke the franchise when in its judgment it had been breached, the findings upon which it must be concluded that council acted in passing the ordinance annulling and revoking the franchise ordinance are binding on the court, and the court would impair the obligation of the contract if it disregarded council’s action.</p>

<p>Criminal Law — Appeal—Extension of Time to Prepare BiU of Exceptions.</p> <p>1. An order extending the time for defendants in an arson case to prepare and lodge a bill of exceptions does not extend the time for filing the transcript on appeal.</p>

<p>Appeal and Error — Review of Weight of Evidence.</p> <p>1. Under Constitution, Article VII, Section 3, as amended in 1911, the Supreme Court is prohibited from passing upon the comparative weight of the evidence adduced on a trial.</p> <p>Limitation of Actions — Evidence Showing Action for Injury not! Barred. '</p> <p>2. In an action by a servant for personal injury, evidence held sufficient to sustain a finding that plaintiff was 'injured in January, 1916, and not in December, 1915, so that limitations had not run.</p>

From Clackamas: James U. Campbell, Judge. Department 2. The plaintiff, contending that he has been and is ready, able and willing to perform his part of the agreement hereinafter mentioned, charges that the defendants have refused to deliver the property for which he contracted.

<p>Costs — Judgment for Costs Without Service of Bill.</p> <p>1. A justice of the peace could render judgment for costs and disbursements without the costs bill having been served.</p> <p>Justices of the Peace — Harmless Instruction That Three Fourths oí Jury Could Return Verdict.</p> <p>2. Instruction by justice of the peace to the jury that three fourths of their number would be sufficient to agree upon a verdict was harmless, where the verdict returned in fact was unanimous.</p> <p>Justices of the Peace — Assessment of Amount of Recovery.</p> <p>8. Under Section 156, L. O. L., in an action for the recovery of money the jury must assess the amount of recovery, and a verdict which merely found for plaintiff did not give the justice of the peace authority to render judgment on it, but he should have caused the jury to correct it, or have sent the jury out again, pursuant to Section 150.</p> <p>Justices of the Peace — Improper Rendition of Justice’s Judgment on Verdict.</p> <p>4. Justice of the peace having had no authority to render judgment in an action for the recovery of money on the jury’s verdict merely finding for -plaintiff and not assessing the amount, and such error appearing on the reeord, there is presented a question amenable to the right of review under Section 605, L. O. L., providing that writ of review shall be concurrent with the right of appeal, etc.</p> <p>Justices of the Peace — Power of Circuit Court to Direct Justice of the Peace.</p> <p>5. Where the record before the Circuit Court on return of writ to review judgment of a justice showed judgment improperly rendered on verdiet in an action to recover money not assessing the amount, but merely finding for plaintiff, the Circuit Court, under Section 611,-L. O. L., had power to affirm, modify, reverse or annul the decision, or by mandate to direct the inferior court to proceed according to its decision.</p>

<p>Husband and Wife — Fund Accumulated During Marriage Separate Property of Husband.</p> <p>1. Where fund was accumulated in Oregon and was in possession of husband, who, when he and his wife moved to Idaho, deposited it there in his own name and husband subsequently withdrew it from the Idaho bank and plaeed it in possession of a brother in Oregon, held that the fund remained the separate property of the husband, in view of Section 799, subdivisions 4, 11, 12, 19, and Sections 7034, 7044, 7045, 7050, L. O. L.</p> <p>Evidence — Declaration of Deceased.</p> <p>2. Declaration of deceased husband when he transferred money in the shape of a certificate of deposit in the Idaho bank that it was his own money was admissible.</p> <p>Husband and Wife — Separate Property Taken to Community Property State.</p> <p>3. Separate property, acquired in a state where community property is unknown, does not beeome community property, but remains separate property when transported into a community property state.</p> <p>[As to the effect of removal into community property state on separate property rights theretofore acquired, see notes in 13 Ann. Cas. 840.]</p> <p>[As to the law governing the community property rights of wife, see note in 85 Am. St. Rep. 564.]</p> <p>Husband and Wife — Gift of Separate Property of Husband Valid Against Wife.</p> <p>4. Where fund was accumulated in Oregon and was in possession of husband, who when he and his wife moved to Idaho deposited it there in his own name, and husband subsequently withdrew it from the Idaho bank, and of his own accord gave it to his brothers in Oregon, held gift was valid against wife.</p> <p>Husband and Wife — Gift of Community Property by Husband Valid.</p> <p>5. Under Revised Codes of Idaho, Section 2686, providing that husband has management and control of community property with like absolute power of disposition as he has of his separate estate, except as regards homestead or community property occupied as a residence, an absolute unrestricted gift by a husband to his brothers of money is valid against wife though the money be treated as community property.</p>

From Clackamas: James U. Campbell, Judge. Department 1. This is an action to recover money. The plaintiff, on July 27, 1915, entered into a contract with the defendant, city, whereby it agreed to construct a water system for such defendant.

<p>Divorce — Review of Decree for Custody of Child.</p> <p>1. Upon appeal from a deeree relating to the custody of a child of divoreed persons, the Supreme Court has appellate jurisdiction only.</p> <p>Divorce — Affidavits Filed in Supreme Court not Considered.</p> <p>2. Under Section 566, L. O. L., providing that appeals shall be decided upon the transcript and evidence accompanying it, affidavits filed in the Supreme Court upon appeal from a decree regarding the custody of a child of divorced parties cannot be considered.</p> <p>Divorce — Child’s Welfare Governs Custody.</p> <p>3. Although Section 7057, L. O. L., provides that parents have equal rights to thejsustody of their children, yet, where there is a dispute between divoreed parties-, the controlling consideration is the child’s welfare.</p> <p>Divorce — Decree Awarding Custody of Child is Conclusive.</p> <p>4. Under Section 756, L. O. It., defining the effeet of decrees, etc., a modified deeree granting -a divorced husband the exclusive custody of his son is conclusive in absence of appeal, and can be superseded only by showing that conditions have changed.</p> <p>[As as the power of a court to modify a decree as to the support of children, see note in 114 Am. St. Rep. 703.]</p> <p>Divorce — Burden of Proof as to Custody of Child.</p> <p>5. A divoreed wife seeking to overturn a modified deeree awarding custody of the ehild to its father has the burden of proof.</p> <p>Divorce — Evidence as to Validity of Decree Awarding Child’s Custody.</p> <p>6. Evidence that a divoreed wife consented to modification of a decree so as to awajd custody of the child to the husband in order to avoid the husband’s formal application for such a modification, etc., held to show that she voluntarily consented to the modified deeree despite her statement that she was tricked into giving her consent by representation's that the eh-ange was merely formal.</p> <p>Divorce — Effect of Evidence Regarding Custody of Child.</p> <p>7. Evidence regarding a divoreed father’s affection and ability to care for his son held to show, contrary to the finding below, that the father should continue to have exclusive custody of the child with permission that the child visit his mother at certain stated periods.</p>

From Lane: George F. Skipworth, Judge. Department 1. The plaintiff, an Oklahoma corporation, having recovered judgment in a court of that state against C. ft. Renfro, one of the defendants here, as for money had and received, brought an action against him in the Circuit Court of Lane County in this state upon said judgment and recovered an Oregon judgment for $3,482 with interest, together with costs and disbursements.

<p>Equity — Failure to Plead Doctrine of Clean Hands as Estoppel,</p> <p>1. In a landlord’s suit to remove a cloud upon title to land in the form of a lease, breached and abandoned by the tenant, -a holding that plaintiffs did not come into equity with clean hands because of a showing that they had sold the land through defendant tenant as agent was improper, where no estoppel was pleaded.</p> <p>Frauds, Statute of — Broker’s Oral Agreement for Sale of Beal Estate.</p> <p>2. In a landlord’s action to remove a lease as a cloud upon title, tenant’s answer, claiming damages for alleged 'breach of real estate broker’s oral agreement, although demurrable in view of Section 808, L. O. I/., nevertheless, since the allegations of the answer were traversed, the defendant was put to proof, as under such section the oral contract was void, and evidence other than the writing or secondary evidence of its- contents inadmissible.</p> <p>Landlord and Tenant — Evidence of Tenant’s Abandonment.</p> <p>3. In a landlord’s action to remove a lease as a cloud upon title, evidence held to indicate clearly an abandonment of the premises by the tenant. •</p> <p>Brokers — Landord and Tenant — Abandonment of Lease — Equity from Void Agreement to Act as Broker.</p> <p>4. Where defendant, tenant, abandoned the lease, plaintiffs, landlords, were restored to their own, independent of any relation of tenant, and no equity can arise from- an oral agreement for the tenant to act for the sale of such property, void under Section 808, L. O. L., especially where defendant fails to show any assent or adoption -by plaintiff of his acts in attempting to sell the land.</p> <p>Landlord and Tenant — Nominal Damages for. Breach of Lease on Shares.</p> <p>5. Where landlords, suing for damages for tenant’s failure to perform the terms of his lease on shares, have not furnished sufficient data in the testimony from whieh the court can estimate advisedly the amount of damages, they will be allowed only nominal damages.</p> <p>[As to the rights and remedies of landlord on abandonment of premises by tenant, see note in 14 Ann. Cas. 1088.] 4</p>

<p>Logs and Logging — Evidence of Misrepresentation of Contents of Bill of Sale of Timber.</p> <p>1. In suit to restrain defendant from cutting and removing standing timber from plaintiffs’ lands under a bill of sale, evidence held, insufficient to show any misrepresentation by defendant as to the contents of the instrument which she induced plaintiffs to sign.</p> <p>Contracts — Seal as Presumptive Evidence of Consideration.</p> <p>2. By Section 776, L. O. L., the seal on a bill of sale was primary evidence of consideration.</p> <p>Logs and Logging — Evidence Showing Consideration for Sale of Timber.</p> <p>3. In suit to restrain defendant from cutting and removing standing timber from plaintiff’s lands under bill of sale, evidence held to sustain finding that the sole consideration moving from defendant for the transfer of the timber was hex agreement to build a house and barn on her property adjoining plaintiffs’ farm, thus increasing values in neighborhood.</p> <p>Contracts — Pleading Failure of Consideration.</p> <p>4. Total failure of consideration for an agreement, and the facts constituting such failure, must be pleaded, or evidence thereof cannot be considered.</p> <p>Evidence — Parol Evidence Admissible on Issue of Consideration.</p> <p>5. Testimony of conversations in regard to timber sold, had prior to execution of the bill of sale, may be considered only to determine the actual consideration for the transfer of the timber, and not to vary the terms of the written bill of sale.</p>

From Multnomah.: John P. Kavanaugh, Judge. Department 2. This is a suit brought by the plaintiffs, Emil Kiesendahl and Augusta Kiesendahl, against the defendants, Ganoe and Baker, to terminate a trust, and for an accounting and damages for the maladministration thereof. It appears from the record that up to some time early in the year 1915 the plaintiffs, Augusta Kiesendahl and Emil Kiesendahl, were husband and wife.

From Union: John W. Knowles, Judge. In Bane. This was an action to recover damages for an alleged unlawful, ouster of plaintiff from certain premises to which she claims the right of possession under an assignment of a lease.

From Wallowa: John W. Knowles, Judge. In Bane. In this case the defendant was indicted for the crime of perjury, committed by falsely and corruptly making oath to the correctness of the list of his taxable property in Wallowa County for the year 1918.

<p>Appeal and Error — Entry in Court Journal Evidence of Notice of Appeal in Open Court.</p> <p>1. Under Section 550, L. O. L., as amended by Gen. Laws of 1913, page 617, Section 1, requiring entry in tbe court journal of notice of appeal, when given in open court, such, entry constitutes the only proof admissible of tbe giving of sueb notice, being equivalent to the proof or return made upon written notice served in the usual manner.</p> <p>Appeal and Error — Statutory Method to be Strictly Pursued.</p> <p>2. The right of appeal being statutory, the method prescribed by statute must be strietly pursued.</p>

From Wheeler: Fred W. Wilson, Judge. In Banc. This is a suit for divorce. The district attorney was not served with summons, but personally appeared, and his appearance was noted in the record at the trial. There was a decree dismissing the suit, and plaintiff appeals. The district attorney was not served with notice of the appeal, and defendant moves to dismiss the appeal for that reason.

From Union: John W. Knowles, Judge. In Banc. The foregoing causes .arise out of the insolvency of the White Pine Lumber Company, a partnership engaged in the lumbering business in Union County, Oregon.

<p>Trial — Finding of Facts by Judge Specific as in Special Verdict.</p> <p>1. Where the parties to an action waive their rights to a jury, the findings of the trial judge are in the nature of a special verdict, and the judge must find the facts as particularly as is required in a special verdict returned by a jury.</p> <p>Trial — Finding of Facts by Special Verdict.</p> <p>2. A special verdict must find all the facts essential for a judgment, but ultimate and constitutive, rather than evidentiary, facts should be stated.</p> <p>Trial — Adequacy of Special Verdict Stating Findings on Issue Determining Case.</p> <p>3. A special verdict must pass on all the material issues, yet will be adequate if it states sufficient findings on an issue ultimately determining the case and necessarily supporting the judgment rendered so that other issues become immaterial.</p> <p>Trial — Findings of Judge Being Only Conclusions of Law Insufficient.</p> <p>4. If the findings made by the trial judge are not in truth findings of faet, but only conclusions of law, the judgment cannot stand because it must be supported by a statement of ultimate facts.</p> <p>Trial — “Evidentiary Fact” Defined.</p> <p>5. An “evidéntiary faet” is one that furnishes evidence of the existence of some other faet.</p> <p>Trial — “Ultimate Fact” Defined.</p> <p>6. An “ultimate fact” is the final resulting effect reached by processes of legal reasoning from the evidentiary faets.</p> <p>Pleading — Affirmative Allegation in Answer as Denial of Affirmative Allegation in Complaint.</p> <p>7. In a broker’s action for commission on negotiating an exchange of properties, the affirmative allegation in the complaint that the purchaser procured owned his exchanged premises in fee simple, followed by denial in the answer, is sufficient after judgment and without timely objection, for the reason that such denial is the equivalent of an affirmative allegation of nonownership by sueh purchaser.</p> <p>Trial — “Fact in Issue” on Which Complaint is Based and Which Defendant Controverts.</p> <p>8. In a realty broker’s action for commission in negotiating an exchange of properties, question of whether or not the purchaser procured was the owner in feie simple of his lands to be exchanged held a “fact in issue,” defined as that on which plaintiff proceeds by his action, and which defendant controverts in his pleadings, so that findings thereon were findings of ultimate fact and not mere conclusions of law.</p> <p>Brokers — -“Real Estate Broker” Defined.</p> <p>9. A “real estate broker” is one employed in negotiating the sale, purchase, or exchange of lands on a commission contingent on success.</p> <p>Brokers — Right to Commission on Refusal of Principal to Sell.</p> <p>10. A realty broker, employed to sell given lands or to find a purchaser ready, able and willing to buy, is entitled to commission when he introduces to his principal a person ready, able and willing to purchase on the terms fixed by the principal, even though the latter refuses to sell.</p> <p>[As to the right of a broker to compensation for sale, lease, etc., defeated by act of the owner, see notes in 2 Ann. Cas. 184; 20 Ann. Cas. 1020.]</p> <p>Brokers — Construction of Contract to Pay Commission on “Consummation of Deal.”</p> <p>11. In view of a stipulation that plaintiff broker’s commission should be so much “of the price,” engagement by the owner to pay commission if the broker found a buyer ready and willing to “consummate a deal” for the stipulated price held to be to pay commission on aetual completion and carrying out of a contract of exchange of properties with a buyer procured by the broker.</p>

From Baker: Gustav Anderson, Judge. In Banc. The defendant is a California insurance corporation.

From Malheur: Dalton Biggs, Judge. In Bane. This is an action for the recovery of money. The substance of the complaint is, that on August 12,1918, plaintiff and defendant entered into a written contract whereby plaintiff was to purchase from defendant, 3,800 head of mixed lambs then on the range, being all of defendant’s 1918 crop of lambs, at the agreed price of $9 per head; to be delivered, f. o. b. cars, at Crane, Harney County, Oregon.

From Grant: Dalton Biggs, Judge. In Banc. This is a suit to determine conflicting claims to the waters of Graham Greek, in Grant County. The trial court awarded the plaintiffs a prior right and defendants appealed. Graham Creek is a non-navigable perennial stream having its source in a spur of the Blue Mountains, emptying its waters in the John Day River.

From Malheur: Dalton Biggs, Judge. In Banc. It is agreed that the defendant as party of the first part and the plaintiff as party of the second part entered into a written contract on June 30,1917, whereby the defendant sold to the plaintiff the entire crop of hay for that year grown on certain realty near Juntura, Oregon, at a price of $14 a ton, reserving to itself seventy-five tons to be used in operating the property. The defendant was to cut, rake and shock the hay.

<p>Gifts — Proof of Parol Gift of Land Must be Clear.</p> <p>1.' In suit by father against his daughter and her husband to be adjudged the owner of real property standing in his name but in defendants’ possession and claimed by them under parol gift, defendants had the burden of establishing the gift clearly and satisfactorily, the same as' if they were suing to compel plaintiff to specifically perform a parol contract for a gift of land.</p> <p>[As to evidence sufficient to establish a parol gift of land, see notes in 12 Ann. Cas. 494; 21 Ann. Cas. 289.]</p>

<p>Appeal and Error — Review of Refusal to Grant Nonsuit.</p> <p>1. Where a motion for nonsuit is interposed and movant thereafter introduces testimony pertaining to the issues, all of the testimony thus submitted will be considered on appeal in reviewing the question of the refusal to grant a nonsuit.</p> <p>Appeal and Error — Conflict in Evidence.</p> <p>2. Supreme Court will not resolve conflict in evidences</p> <p>Corporations — Authority of Officers and Agents Governed by General Law of Agency.</p> <p>3. The power of officers and agents of corporation to bind the corporation is governed by the general law of agency, the underlying principles being the same, and their authority may be implied from their conduct and the acquiescence of the directors..</p> <p>Corporations — Ratification of Contract by Its Agent.</p> <p>4. Corporation, having approved auditor’s contract with publie accountant for services to be rendered corporation and having accepted the benefits of such contract, cannot avoid liability for such services.</p> <p>Principal and Agent — Presumption That Agency is General.</p> <p>5. Persons dealing with a known agent have a right to assume, in the absence of information to the contrary, that his agency is general.</p> <p>Corporations — Implied Authority of Officers and Agents.</p> <p>6. When in the usual course of the business of a corporation an officer or agent has been allowed to manage certain of its affairs, his authority to represent the corporation may be implied from the manner in which he has been permitted by the directors to transact its business; the usual employment being evidence of his powers.</p> <p>Principal and Agent — Acts of Agent Within Apparent Authority.</p> <p>7. The principal is bound by the acts of his agent within the apparent authority conferred upon such agent.</p> <p>Corporations — Authority of Agent.</p> <p>8. The primary object of a corporation in employing an agent is that he shall b& enabled to accomplish the purpose of the agency, and other persons are invited to deal with the agent with that understanding. 1</p> <p>Corporations — Authority of Agent to Make Contract for Services Jury Question.</p> <p>9. In action by public accountant against corporation for services rendered upon employment by corporation’s agent, where defense was that agent who had employed accountant was not the authorized agent of the corporation, and where corporation, at close of plaintiff's testimony, moved for nonsuit, held, that there was competent evidence tending to' support findings of fact that agent was the authorized agent of corporation.</p>

<p>Husband and Wife — Note Signed by Wife not Joint Obligation of Husband and Wife.</p> <p>1. A promissory note signed by tbe wife alone is not tbe husband’s joint obligation, since a joint obligation is one by which several obligors promised to perform tbe obligation, nor is it made joint by tbe fact that the proceeds were used in paying family expenses, for wbieb Section 7039, It. O. L., renders the husband and wife equally liable.</p>

<p>Health — Ordinance to Protect Health With Ho Relation to the Matter Unconstitutional.</p> <p>1. An ordinance enacted to protect the public health, but which, has no real or substantial relation to the subject matter, and is an unreasonable and unwarranted interference with a lawful business, is unconstitutional.</p> <p>Incenses — Ordinance Giving Officer Arbitrary Powers as to Issuance Invalid.</p> <p>2. Any ordinance which invests in an officer or board arbitrary power to issue or withhold a license for any trade or profession, without regard to the qualification of the applicant, is void.</p> <p>[As to the validity of an ordinance vesting discretion as to its enforcement in a municipal official, see notes in 6 Ann. Gas. 749; 13 Ann. Cas. 652.]</p> <p>Municipal Corporations — Ordinance Permitting Prohibition of Lawful Occupation Void.</p> <p>3. An ordinance by or under which an occupation lawful, and not injurious to person, property, -or public, when lawfully conducted, may be absolutely prohibited at the dictation of any publie official, without just cause or reason, is void.</p> <p>Licenses — Defense for Operating Soft Drink Establishment Without License Insufficient.</p> <p>4. The -contention .that the medical examiners of the city are careless- and negligent in the discharge of their duties goes only to the administration and not to the validity of an ordinance requiring, as a condition to issuance of a license, medical examination of persons owning -o-r working in food and soft-drink establishments, and is not a defense to a charge of having violated the ordinance by o-perating such an establishment without a license.</p> <p>Municipal Corporations — Ordinance for Licensing Food Establishments Sufficiently Definite.</p> <p>5. Ordinance of the City of Portland, No. .35,013, providing if the location of a food establishment is found to be suitable, and in proper sanitary condition, -according to the ordinances of the city and the regulations -of the United States as to plumbing, etc., the bureau of health shall issue a food establishment permit or license-to the applicant, is definite and certain, though there is no speeiflcation of what shall -constitute physical fitness in an applicant for license, or suitability in the location.</p> <p>[As to grant by city of right to use shops and eating-ho-usesi for private purposes, see note in 125 Am. St. Rep. 353.]</p> <p>Municipal Corporations — City can Provide for Regulating Food and Soft Drink Establishments by Licenses.</p> <p>6. Under its charter giving the City of Portland power to make regulations to prevent the introduction of contagious diseases, etc., the city had power and authority to adopt its ordinance No. 35,013, providing for the licensing of food and soft-drink establishments on approval of their location, physical examination of the proprietor, and payment of a fee.</p> <p>[As to the validity of regulations affeeting iee-cream, see notes in 41 L. R. A. (N. S.) 150; L. R. A. 1917B, 207]</p> <p>MOTION TO RETAX COSTS.</p> <p>Municipal Corporations — City Entitled to Costs in Prosecution for Violation of Ordinance.</p> <p>7. Under City of Portland Charter 1903, Sections 332, 333, 336, retained in charter of 1913 as ordinances, and. under Sections 2494, 2498, L. O. h., city prosecuting defendants in municipal court for violation of ordinance held entitled upon judgment of conviction being affirmed by Circuit and.Supreme Courts, to recover from defendants, as costs and expenses, attorney’s fees and expenses of brief.</p>

From Grant: Dalton H. Biggs, Judge. In Banc. On an indictment charging him with murder in the second degree by killing E. E. McOue the defendant was convicted of manslaughter and appealed.

From Multnomah: Robert Gr. Morrow, Judge. Department 1. This is an action wherein it is songht to recover damages for the death of one Mjo Rjacich, of whom the plaintiff claims to be the mother.

From Deschutes: T. E. J. Duffy, Judge. In Banc. This is an action to recover money. Plaintiff, a corporation, alleges in its complaint that between .September 1, 1916, and November 1, 1916, it sold to the defendant goods, wares and merchandise “consisting- principally of lumber and building materials at the agreed and stipulated’ value of $145.04,” and that this sum is due to the plaintiff, together with interest at the rate of 6 per cent per annum from November 1, 1916.

From Baker: Gustav Anderson, Judge. In Banc. This is an action in replevin. There was a verdict and judgment for the plaintiff. The defendant moved for a judgment notwithstanding the verdict; and, based upon that motion, the court set aside the verdict and judgment for the plaintiff and granted a new trial with permission to the plaintiff to amend his complaint. The plaintiff appealed.

Prom Multnomah: Calvin U. Gantenbein, Judge. Department 1. This is an action at law brought by plaintiff for the recovery from H. W. Sharp of the sum of $1,500 for money alleged to have been received for the use and benefit of plaintiff. The complaint alleged: That defendant'induced plaintiff to enter into a contract to purchase a one-fourth interest in his mercantile business by means of certain alleged false representations, which, briefly stated, are as follows: “1.

From Multnomah: Robert G. Morrow, Judge. Department 1. On July 30,1918, the defendant was indicted in Multnomah County for an offense -defined and made punishable by Section 2099, L. O. L., as amended by Chapter 21, Laws of 1913. He was tried December 20th of that year and from the resulting judgment of conviction he has appealed.

From Multnomah: William N. Gate ns, Judge. Department 1. After stating the corporate character of the defendant, the complaint alleges: “That on or about the ninth day of January, 1918, an account was stated by and between said Oregon Engraving Company aforesaid, acting by and through its duly authorized president, Roy E. Robinson, wherein and whereby it was determined and stated that there was due and owing one George E. Matthews the sum of $440.75, this sum being due and…

From Baker: Gustav Anderson, Judge. In Banc. This is an actiqn brought by the plaintiff, a Missouri corporation, against the defendant, a corporation doing business at Baker, Oregon, to recover damages for an alleged breach of contract to deliver-three carloads of potatoes.

<p>Appeal and Error — Notice of Appeal — Description of Judgment— Date — Misleading Respondent.</p> <p>1. Where a notice shows that defendant appeals from a judgment rendered June 28th, and the transcript discloses a judgment entered July 1st, the misdescription was not siich as to mislead plaintiff, and defendant could assume that the judgment was rendered on the date of the verdiet, as provided by Section 201, Ii. O. X.., and plaintiff was not prejudiced thereby, where he appeared several times to object to the sufficiency of the sureties upon the undertaking.</p> <p>Appeal and Error — Notice of Appeal — Description of Judgment— Inaccuracy in Amount — Further Appearances of Appellee.</p> <p>2. Where a notice of appeal states that the judgment was for $128, when it was for $128.50, the inaccuracy could not have misled respondent, particularly where his appearances thereafter in the Circuit Court indicated that he was not uncertain as to the judgment appealed from.</p> <p>Appeal and Error — Notice of Appeal — Negligence.</p> <p>3. Although a notice of appeal describes the judgment as of an erroneous date, where the affidavit of appellant’s .counsel shows that the date given in the notice was the same as that in the copy of the proposed judgment served upon Mm by respondent’s counsel, he is thereby relieved from any imputation of carelessness in preparation of notice.</p> <p>Appeal and Error — Appeal Statutes — Liberal Construction.</p> <p>4. Substantial compliance with the appeal statutes is all that ought to be -required to the end that no one shall be deprived of his right to be heard by reason of any mere technicality arising from strained construction.</p> <p>ON THE MERITS.</p> <p>Evidence — Value may be Proved by Showing Amount Realized at Sales.</p> <p>5. When it becomes necessary to ascertain the value of articles for which there is no open market, evidence of price realized at sales of such, articles, held under conditions calculated to secure adequate returns, is admissible, provided that the time of sale is not too remote to raise a logical inference.</p> <p>Evidence — Inadmissible When in Conflict With Written Stipulation.</p> <p>6. In an action by an attorney to recover compensation by reason of a breach of a percentage contract, defendant having employed other counsel, who brought action, and stipulations were entered into between the client and opponent, wherein it was agreed that the client was entitled to at least $50,000, evidence that the client’s opponent contended that the client was not entitled to the amount stipulated was properly excluded, being in direct conflict with the written stipulation.</p> <p>Stipulations — Construction of Stipulation That Payment to Plaintiff Should be Without Prejudice to Rights.</p> <p>7. A clause, “said payment to be without prejudice to the rights of any of the parties to this suit,” in a stipulation in an action to recover part of the estate of a deceased person wherein it was agreed that plaintiff was entitled to at least $30,000, wMek was given her, held to refer to litigation as to the balance of the fund, and not to the amount paid plaintiff.</p> <p>Attorney and Client — Amount of Damages for Breach of Contract of Employment Question for Jury.</p> <p>8. In an action by an attorney for breach of a contract of employment under which his compensation was to be a certain percentage of the amount recovered, defendant having employed other counsel, who brought an action, wherein it was stipulated that defendant was at least entitled to certain stock which was deposited in the registry of the court, whether defendant accepted such stoek as her property so as to entitle plaintiff to compensation held for the jury, although the stock remained in the registry of the court.</p> <p>Attorney and Client — Breach of Contract by Client — Amount of Compensation.</p> <p>9. Where a client breached a contract under which he employed an attorney to obtain or -recover part of the estate of a decedent claimed by the client, and employed other counsel, who brought an action wherein it was stipulated that the client was at least entitled to certain corporate stock, which was then given to the elient, damages for breach of the contract with the attorney should be based on the value of the corporate stock at the time it was issued or given to the elient.</p> <p>Contracts — Construction to Give Effect to Entire Contract.</p> <p>10. Written contracts should be construed from the standpoint o£ the parties when they were contracting, and be so interpreted as to give effect to all the provisions, if possible.</p> <p>Attorney and Client — Measure of Damages for Breach of Contract of Employment.</p> <p>11. Where one employs an attorney and makes an express valid contract, stipulating for the compensation which the attorney is to receive for his services, such contract is, generally speaking, conclusive as to the amount of such compensation.</p> <p>Attorney and Client — Right of Client to Terminate Relationship cannot Defeat Claim for Compensation.</p> <p>12. While a elient may terminate the relationship between himself and his attorney, where an attorney is prematurely discharged or is otherwise wrongfully prevented from performing the professional duties for which he was employed without fault on his part, •he is entitled to compensation, even though the arrangement was for a contingent fee, provided the contingency has happened.</p> <p>Attorney and Client — Measure of Damages for Breach of Contract of Employment.</p> <p>13. A client, by wrongfully preventing the performance of acts which entitle an attorney to specific compensation under a contract, becomes liable in damages in such amount.</p> <p>Trial — Construction of Stipulations and Orders in Other Suit Question for Court.</p> <p>14. In an action by an attorney for damages for breach of a contract of employment under whie-h he was to receive as compensation a certain percentage of the amount recovered, the client, having employed other counsel, who brought action in the federal court, wherein certain stipulations were entered into concerning the amount due the client, the construction of orders entered in the federal court and stipulations therein was for the court.</p> <p>Appeal and Error — Findings Supported by Evidence not Disturbed.</p> <p>15. Under the Constitution, where there is any competent evidence to support a verdict, the Supreme Court is precluded from disturbing the same.</p>

From Umatilla: Gilbert W. Phelps, Judge. In Banc. This is an action to recover damages for personal injuries caused by an automobile. There was a judgment for the plaintiff; the defendants filed a motion for a new trial which the court denied; and the defendants appealed. Court Street runs east and west through Pendleton and is intersected by Beauregard Street which extends north and south.

From Jackson: Frank M. Caukins, Judge. Department 1. Belle Nickell brought this action against R. H. Bradshaw, as the maker, and against Effie May Terrill, as an indorser of a promissory note. Bradshaw made no appearance and there was a judgment against him for the amount of the note; but as between Belle Nickell and Effie May Terrill there was an involuntary judgment of nonsuit against Belle Nickell. The plaintiff appealed.

From Lake: L. F. Conn, Judge. In Banc. This is a suit for a divorce. The complaint charges the defendant with acts of cruelty and infidelity. The defendant, in his answer, denies the allegations of the complaint and in an affirmative answer also charges the plaintiff with cruelty and infidelity. The reply put in issue the averments of the answer. A large amount of testimony was taken consisting of over five hundred typewritten pages.

Original proceedings in mmdamus in Supreme Court. In Banc. This is an original proceeding for a -writ' of mandamus, in which the relator alleges that it is a cor-, poration organized and existing under the laws of the State of California, duly licensed to transact business in Oregon and engaged in buying and selling hides; that its principal office and main warehouse in Oregon is in the City of Portland; that at all the times alleged the defendant has been and is now…

<p>Appeal and Error — Abandoned on Failure to File Transcript .or Abstract Within Required'Time.</p> <p>1. On appeal by plaintiff, where it is stated in defendant’s brief that he has appealed, but where there is no copy of notice of appeal, or undertaking on appeal, or abstract in his favor, court will conclude that defendant abandoned appeal by failure to file transcript or abstract in appellate court within 30 days after perfection of appeal, under Laws of 1913, Chapter 320.</p> <p>Divorce — Nonappealing Party cannot Attack Decree.</p> <p>2. In divorce action, where plaintiff has appealed from a portion of the decree, defendant, upon failure to appeal, will be deemed to be satisfied with the decree as it stands, and cannot attaek decree, but may defend it against plaintiff’s attack.</p> <p>Divorce — Appeal may be Taken from Portion of the Decree Affecting Property Rights.</p> <p>3. Under Laws of 1913, Chapter 319, plaintiff in divorce action may appeal from that'part of the decree relating to property rights without appealing from the whole thereof.</p> <p>Divorce — Entire Record to be Considered on Appeal from Portion Relating to Property Rights.</p> <p>4. On appeal by plaintiff in divorce action .from that part of decree relating to property rights, her right to additional relief must depend upon equitable considerations to be derived from a perusal of the whole record, as upon a hearing de novo, and the decree will not' be changed if,' upon examination of the testimony as a whole, it appears that she did not come into court with clean hands, and was not entitled to any decree in her favor.</p> <p>Divorce! — Incompatibility of Temper not Ground.</p> <p>■5. Incompatibility of temper does not constitute a ground for divoree under Section 507, L. O. L.</p> <p>Divoree — Portion of Decree Granting Divorce not Renewed on Appeal from Portion Affecting Property Rights.</p> <p>6. On appeal from that portion of divorce decree relating to property rights, where neither party has appealed from the portion of the decree granting the divoree, the portion of the decree granting the divoree must remain intact, appellate court on such appeal having no power to overturn it.</p> <p>Divorce — Prevailing Party not Entitled to Interest in Land of Adverse Party Unless Paultless.</p> <p>7. The right of the party who has been granted a divorce to an undivided one-third part in real estate of adverse party, under Section 511, L. O. L., exists only where such prevailing party is mot at fault.</p> <p>Divorce — No Change of Decree on Appeal in Favor of Party Who has not Appealed.</p> <p>8. On plaintiff’s appeal from that portion of the divorce decree affecting property rights, where defendant has not appealed, the portion of the decree appealed from cannot be changed in defendant’s favor.</p> <p>Divorce — No Relief from Divorce Decree on Appeal Where Parties are in Pari Delicto.</p> <p>9. On plaintiff’s appeal from portion of the divoree decree affecting the property rights, no relief will be granted where, trying the case anew upon a transcript and evidence accompanying it, as required by Section 556, Ii. O. L., court on appeal concludes that the parties are in pari delicto.</p>

<p>Judgment — Attorney Estopped by Judgment Against Client as to Land in Which Attorney had Interest.</p> <p>1. Where, with a view of bringing suit to quiet title to land, one claiming ownership deeded a one-third interest to his attorney as .a contingent fee and the attorney as such brought suit in which his client asked for a decree that he was owner of all the land, and a decree was rendered against his client and in favo-r of the defendant, in a subsequent action by the defendant for the value of the use and occupation of the same, the attorney cannot set up his deed as a defense, as the legal effect would be to litigate the identical question passed on in a prior suit.</p>

<p>States — Automatic Succession to Governorship on Death During Term.</p> <p>1. Under Article V, Section 8, of the Constitution, in case of death of the governor during his term of office, the secretary of state becomes governor to serve for the unexpired term of four years provided by Sections 1 and 7 and Section 8 providing a line of automatic succession from governor to secretary of state and to president of the senate, having been adopted to prevent a vacancy in the office of governor.</p> <p>[As to the existence and effect of vacancy in office -of governor, see note in Ann. Cas. 1915A, 577.]</p> <p>Courts — Rule of Stare Decisis Applies With Peculiar Force to De-, cisiona on Constitutional Questions.</p> <p>2. The rule of stare decisis applies with peculiar force to the decision of courts on question of constitutional law, and a particular construction of a constitutional provision having been adopted, it will be recognized and enforced subsequently.</p> <p>[As to limitations on the doctrine of stare decisis, see notes in 27 Am. Dec. 628; 73 Am. St. Rep. 98.]</p>

<p>Trover and Conversion — Possession is Sufficient Proof of Ownership Against One Showing No Title.</p> <p>1. Actual possession of a chattel at the time of the conversion thereof is sufficient evidence of title, in trover against one who shows no- title.</p> <p>[As to title on which aetion may be maintained, see note in 1 Am. Dec. 585.]</p> <p>Trover and Conversion — Possession Under Claim of Title of Land is Proof of Ownership of Machinery Taken Therefrom.</p> <p>2. Possession of land, either under title or under claim of title, is sufficient proof in trover of the ownership -of machinery appurtenant thereto and taken therefrom.</p> <p>Trover and Conversion — Deed and Lease Held Sufficient Proof of Title to Machinery on Land.</p> <p>3. A warranty deed to plaintiff under which it was in possession and a lease of the land making the machinery thereon the property of the lessor is sufficient proof of plaintiff’s ownership of the machinery to avoid a nonsuit.</p> <p>Trover and Conversion — Testimony That Plaintiff Owned “Mill” is Evidence of Ownership of the Machinery.</p> <p>4. Testimony that plaintiff owned the sawmill is evidence that it owned the machinery therein, since the term “mill,” in modern usage, includes various machines or combinations of machinery.</p> <p>Trover and Conversion — Proof of Title from Source to Land from Which Machinery was Taken Unnecessary.</p> <p>5. To recover for the conversion of machinery in a sawmill vested in plaintiff under a lease by it of the mill site, proof of chain of title to the mill site from the government is unnecessary.</p> <p>Courts — Trover for Conversion of Mill Machinery is Transitory.</p> <p>6. An action to recover for the conversion of mill machinery by taking it from the mill site is not an action for damages to the land, ,but is transitory, and may be maintained in a state other than that in whieh the site is located.</p> <p>[As to right to maintain aetion for conversion of timber, crops, buildings, etc., in another state or county', see notes in 34 L. K. A. (N. S.) 994; 44 L. R. A. (N. S.) 268.]</p> <p>Evidence — Counsel’s Statement That Lease was Assigned in Writing may be Considered.</p> <p>7. The statement of defendant’s attorney during a colloquy in court that a lease had been assigned in writing may be considered) by the jury as showing an assignment.</p> <p>Landlord and Tenant — Proof That Stranger Held Under Lease Raises Presumption of Assignment.</p> <p>8. Oral proof that a corporation, not the lessee, took possession of the leased property and held it under the terms of the lease, installing the machinery as agreed therein, is admissible, and raises the presumption of assignment of the lease.</p> <p>Trover and Conversion — Measure of Damages is Market Value.</p> <p>9. The measure of damages for the conversion of personal property is the market value of the property at the time and place of the ■conversion.</p> <p>Trover and Conversion — Evidence of Value Held Sufficient to Avoid Nonsuit.</p> <p>10. Testimony of two witnesses as to the value of the machinery converted held sufficient evidence of value to avoid a nonsuit.</p> <p>Trover and Conversion — “Reasonable Value,” “Fair Cash Value,”.and - “Actual Cash Value” are Synonyms.</p> <p>11. “Reasonable value,” or “fair cash value,” and “actual cash value” are practically synonymous terms, and mean the fair or reasonable cash priee for whieh the property can be sold on the market.</p>

<p>Adverse Possession — Title Need not be Perfect.</p> <p>1. It is not necessary, to make possession adverse, that e party-should have a ■ perfect title, or that he should even think he has a perfect title, but, on the' contrary, he may know his title is weak and defective.</p> <p>[As to what constitutes eolor of title sufficient to sustain aetion of adverse possession, see notes in 14 Am. Dec. 580; 88 Am. St. Rep. 701.]</p> <p>Adverse Possession — Sustained by Evidence.</p> <p>2. In an action to quiet title, under claim of title by adverse possession, evidence held sufficient to sustain a judgment for plaintiffs, although the person under whom plaintiffs claim failed- to pay the taxes on the'land, and did not return the same on his tax list.</p> <p>PETITION EOR REHEARING.</p> <p>Adverse Possession — Confers Fee-simple Title by Operation of Law.</p> <p>3. Adverse possession for more than 10 years confers fee-simple title by operation of law.</p> <p>Ejectment — Title by Adverse Possession Available as Defense.</p> <p>4. One acquiring title to land by adverse possession can successfully defend an ejectment action brought by the owner of the reeord title.</p> <p>Quieting Title — Record Title is Cloud on Title by Adverse Possession.</p> <p>5. The deed to the owner of the reeord title is a cloud on the title acquired by adverse possession which the party having title by adverse possession may sue to remove.</p> <p>Taxation — Holder of Record Title is not Entitled to Reimbursement from Adverse Claimant for Taxes Paid.</p> <p>6. The holder of the record title to land in the adverse possession of another was paying taxes on his own land during the ten years necessary to give title to the adverse claimant, and thereafter was a mere volunteer with no right to reimbursement from the adverse claimant.</p> <p>Taxation — Record Owner Redeeming from Tax Sale not Entitled to Reimbursement from Adverse Holder.</p> <p>7. Under Section 3124, B. & C. Comp., providing that any redemption from a tax sale shall inure to the benefit of the person having the legal ot equitable title subject to the right of the person making the redemption to reimbursement by the person benefited, the redemption -by the owner of the record title of land in the adverse possession of another inures to his own benefit and gave him no right to reimbursement.</p> <p>Taxation — Right of Person Redeeming from Tax Sale is Governed by Statute Then in Force.</p> <p>8. Laws of 1907, page 480, Section 69, requiring one suing to remove the cloud bf a tax title to deposit all payments by the purchaser with interest, gave no right to interest to one redeeming from a tax sale in 1904, in view of Section 80, continuing the old statute in force as to taxes previously accruing.</p> <p>Interest — Recovery Depends on Statute.</p> <p>9. The right to recover interest as such must be found in the statute whieh confers it, and unless included it must be deemed excluded.</p> <p>Damages — Taxation—Record Owner of Land in Adverse Possession of Another is not Entitled to Interest on Taxes Paid.</p> <p>10. Payments of taxes on land in the adverse possession of another by the record owner who had redeemed from a tax sale were not within the interest statute (Section 6028, L. O. L., as amended by Laws 1917, p. 781), nor was interest recoverable as damages-.</p>

<p>Bail — Third Person Furnishing Cash Bail may Recover Against Claim of Forfeit on a Different Charge.</p> <p>1. In view of Sections 1660, 1663, 1664, 1666, 1668, L. O. L., where plaintiff deposited bail money in recorder’s court of the City of Marsh-field, incorporated under Sp. Laws 1905, p. 205, which vests recorder with a justice’s power] etc., and makes general state laws applicable, the bail being for one accused of maintaining a common nuisance, and took Recorder’s receipt, showing that money belonged to plaintiff, the money was to be treated.as that of accused on that charge; but after its dismissal the money again became property of plaintiff, who, not being in pari delicio with accused, could recover it from the city, claiming it as forfeit for accused’s failure to answer to a subsequent charge of unlawful sale of liquors, having no continuity with former charge.</p> <p>Bail — Accused and One Furnishing Cash Bail not in Pari Delicto.</p> <p>2. The city recorder’s taking of cash bail from plaintiff for one accused of crime, and the court’s releasing of accused, were judicial acts, so that the case was not one of bail being taken by an unauthorized officer; hence plaintiff, seeking to recover bail money after dismissal of the charge, which money the city claimed as forfeited on a different' subsequent charge and the accused, were not m pari delicto. !</p>