Volume 96 — Oregon Reports

<p>Appeal and Error — Filing Brief — Time—Dismissal.</p> <p>1. Respondent’s brief filed after the 20 days from service of appellants’ brief allowed by Supreme Court Rule 8 (891 Or. 713, 173 Pac. viii) will be stricken on motion; time not having been extended.</p>

From Multnomah: George W. Stapleton, Judge. In Banc. This is an action instituted by Clatsop County for the use and benefit of Frye & Company, a corporation, engaged in the sale of meat and meat products with its principal office in Seattle, Washington, and one of its branches at Portland, Oregon, against the defendants, who are the original contractor, its surety, and subcontractors, upon a bond guaranteeing the performance of a contract for the construction of a part of…

From Multnomah: Robert Tucker, Judge. Department 2. The defendant is a life insurance corporation organized under the laws of the State of New York and is now doing business in the State of Oregon. The plaintiff is a resident of this state, the daughter of Peter A. Josephs, now deceased, and the sister of James and John E. Josephs, who are residents of California.

From Multnomah: George W. Stapleton, Judge. Department 1. This is a suit to foreclose a mortgage upon real estate. The complaint is in the usual form, the plaintiff being the assignee of the instruments upon which the suit is based.

From Baker: Gustav Anderson, Judge. In Banc. This is an appeal from an order of the court directing the receiver to pay the costs adjudged against the defendant, as indicated in the opinion in the former hearing of this cause, as reported in 86 Or. 1 (166 Pac. 965, 167 Pac. 1167).

From Marion: Geoége G. Bingham, Judge. In Banc. The plaintiff alleges that he— ‘ ‘ Is a resident and inhabitant of Multnomah County, State of Oregon, and a taxpayer in said state and county, and brings this suit in his own’interest and in the interest of all other taxpayers in the State of Oregon to prevent the illegal disbursement of public funds, which he alleges to be true upon information and belief.” That the defendant Ben Olcott is Secretary of State, and with the…

From Multnomah: Henry E. McGinn, Judge. Department 1. This is an action to recover upon a hond furnished to the City of Portland by a contractor, under a contract for the improvement of Nehalem Avenue, said bond being executed under the requirements of Section 6266, L. O. L., and Section 162 of the charter of the City of Portland, for the protection of subcontractors, materialmen and laborers employed under such contract.

From Coos: John S. Coke, Judge. Department 2. The defendant Norman C. Savage was convicted and fined $25 for having on the twenty-seventh day of March, 1919, shipped or transported from Coos County to Portland, for sale, two salt-water crabs taken within said Coos County, and appeals from the judgment of conviction.

Prom Linn: George G. Bingham, Judge. Department 1. This is a suit to quiet the title of the plaintiffs in the south half of the wife’s moiety of the donation land claim of Charles T. Ingram and Eliza Ann Ingram, his wife, in Linn County, Oregon. The plaintiffs claim to be the owners in fee simple of this tract. They assert title by virtue of mesne conveyances from Frank Ingram.

<p>Appeal and Error — Findings of Court Sitting Without Jury have 'Effect of Verdict.</p> <p>1. Findings of fact by court where jury was waived have the effect of a verdict, and must be sustained if supported by any evidence.</p> <p>Account Stated — Not Presumed to Extend to Items Arising After Statement.</p> <p>2. An account stated is not presumed to extend to items arising after statement of the account.</p> <p>Evidence — Testimony as to Entries by Deceased in His Account-book Admissible.</p> <p>3. Under Section 790, t. O. L., parol evidence that entries in the book of accounts of an attorney were in his handwriting wvas admissible in an action by his executrix to recover for services rendered.</p> <p>Attorney and Client — Attorney’s Right to Compensation will not be Denied Because His Opinion was Erroneous.</p> <p>4. Where it appeared that defendant received a large sum of money as result of litigation, and there was no showing that the attorney’s fee was to be contingent, the faet the attorney erroneously represented a sheriff’s sale was valid will not, where there was no showing that defendant relied on it or was injured, prevent recovery of compensation.</p> <p>Attorney and Client — Evidence Held Sufficient to Sustain Judgment in Favor of Attorney’s Executrix.</p> <p>5. In an action for legal services brought by an attorney’s executrix, evidence held sufficient to sustain the judgment of $250 for services; the opinion of another attorney not being contradicted.</p> <p>[As to what is a reasonable attorney’s fee in absence of contract, see note in Ann. Cas. 1916B, 263.]</p>

<p>Statutes — Title of Act Regulating Fishing Held to Embrace Subject of Justice Court’s Jurisdiction Over Prosecutions.</p> <p>1. Laws of 1915, page 226, which, with Section 5257, L. O. L., as amended by Laws of 1915, page 60, and Section 5283, prescribe comprehensive regulations for fishing, and for punishment for violations, is not invalid, under Article IV, Section 20, of the Constitution, declaring that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title, because Section 23 declares that, unless otherwise specifically provided, Justices’ Courts shall have concurrent jurisdiction in the first instance with the Circuit Court of all offenses; that provision being connected with the subject matter of the act.</p> <p>Pish — Held In Trust hy the State for the People.</p> <p>2. In so far as fish in streams of the state can be said to be property, they are held by the state in trust for the people.</p> <p>Statutes — Statute Fixing Different Regulations for Pishing in Different Counties not “Local Law.”</p> <p>3. Though Laws of 1915, page 60, amending Section 5257, L. O. L., provides different regulations for fishing in different eounties of the state, it is not invalid, under Article IV, Section 23 of the Constitution, declaring that the legislature shall not pass special or local laws for punishment of crimes, for, though violation of regulations applicable to particular streams is made an offense, the act is not a “local law,” which, properly speaking, is one whose operation is confined within territorial limits other than those of the whole state, or any properly constituted class of localities, while these special regulations as to particular streams apply to, all of the people of the state alike.</p> <p>[As to the validity and construction of statute regulating method of taking fish, see note in Ann. Cas. 1917D, 814.]</p> <p>Fish — Courts Should not by Technical Construction Overthrow System of Statutory Legislation of Fishing industry.</p> <p>4. In view of the magnitude and productiveness- of the fishing industry, the courts should not, by narrow construction of constitutional provisions, destroy the statutory system regulating the fishing industry.</p> <p>Indictment and Information — Indorsement of Statute Supposedly Violated Adds Nothing.</p> <p>5. Indorsement on a complaint of the statutes supposedly violated adds nothing, and is not even required.</p> <p>Criminal Law — Objection That Complaint Stated Two Offenses and was Indefinite Held not Raised by Demurrer.</p> <p>6. Where a complaint charging that defendant unlawfully operated a set-net bore the indorsement, “See. 1, Chap. 362, Laws 1917, for penalty, Chap. 31, Laws 1919,” and the indorsement was amended by striking out the reference to Laws of 1917, and inserting Section 1, Chapter 49, Laws of 1915, instead, the objection on appeal that the complaint was indefinite and stated violation of the two different laws was not raised by demurrer attacking jurisdiction of the court and the sufficiency of the facts stated to constitute an offense, and such matter could be raised only by demurrer, under Section 1491, subdivisions 2, 3, L. O. L.</p> <p>Fish — “Set-net” and “Drift-net” Defined.</p> <p>7. Within the Oregon statutes limiting fishing rights and regulating the use of nets, the term “drift-net” means a net with both ends free to drift with the current, while a “set-net” is one fastened at one or both end's, so the whole net cannot drift with the current, and notwithstanding this be in a condition to take fish.</p> <p>Fish — Evidence Held to Show That Defendant Operated Set-net Over More Than One Third of a'Stream.</p> <p>8. In a prosecution for unlawfully operating a set-net, evidence held to show that defendant operated such a net, and that it extended more than one third the distance across the body of water, in violation of Laws of 1915, page 69.</p>

<p>Evidence — Presumption of Receipt of Mailed Letter.</p> <p>1. There is a strong presumption that a letter or postal card marked and addressed to defendant, and mailed by plaintiff, was received by the defendant, and whether this presumption was overcome by defendant’s evidence was a question of fact for the jury.</p> <p>[As to the presumption of the receipt of letter, see note in Ann. Cas. 1917E, 1058. As to rebuttal of the presumption of receipt of letter, see notes in 4 Ann. Cas. 956; Ann. Cas. 1912D, 1065.]</p> <p>Contracts — On Refusal of Hospital Treatment Under Contract Another Request Unnecessary.</p> <p>2. Where defendant hospital association, which had contracted to furnish medical, surgical, and hospital service to plaintiff in case of illness, in replying to plaintiff’s request for care and service virtually refused to treat plaintiff on the ground that her disease was chronic, and not. subject to treatment under the contract, plaintiff was relieved from making further requests for treatment.</p> <p>Contracts — Whether Plaintiff had Chronic Disease Within Contract for Treatment, for Jury.</p> <p>3. In an action for breach of a contract to render plaintiff ' medical and surgical treatment' and furnish hospital facilities whether plaintiff’s ailment was chronic, and therefore not covered by the contract, was a question of fact for the jury, a ehronie disease being one o£ long duration, or characterized by slowly progressive symptoms.</p> <p>Contracts — Failure to Pay Assessment not Breach of Contract.</p> <p>4. In an aetion for breach of a contract to furnish medical and hospital services, the fact that plaintiff did not 'pay an assessment when due is immaterial, where the contract provided that “no cancellation of membership shall be made while the member is sick,” and plaintiff was ill at such time.</p> <p>Contracts — Limiting Place for Furnishing Medical Services not Authorized, by Contract.</p> <p>5. In an action for breach of a contract by defendant hospital association to furnish free hospital services where a hospital is provided, and free medical and surgical treatment, without specification as to place to be rendered, held, that an instruction that, under the terms and conditions of the contract, defendant was not bound to render services to plaintiff outside of the city and county in whieh defendant hospital was located was properly refused.</p> <p>ON PETITION EOR REHEARING.</p> <p>Damages — Inference of Physical Suffering from Nonperformance of Contract for Medical Services Held Justified.</p> <p>6. The fact of plaintiff’s speedy relief when finally she was able to get medical assistance held to justify inference that she suffered physical pain through nonperformance by defendant of its contract to furnish her medical and hospital service.</p> <p>Damages — Mental Suffering With Physical Pain Element of Damage.</p> <p>7. Mental anguish concomitant with physical pain suffered through breach of contract to furnish medical and hospital service is an element of damages.</p> <p>Damages — Mental Suffering as Element of Damage Held Within Contemplation of Parties to Contract for Medical Care.</p> <p>8. That a resort to charity, with accompanying humiliation and mental anguish, might result to plaintiff from failure of defendant to keep its contract to furnish plaintiff medical and hospital services in ease of sickness was a contingency naturally within the contemplation of both parties.</p>

<p>Corporations — Subscribers to Stock Liable to Pay on Express or Implied Promise.</p> <p>1. Persons subscribing to the capital stock in a corporation are obligated to pay therefor when regularly required to do so, and the taking of stock without subscription implies a promise to pay.</p> <p>Corporations — Reduction of Capital Stock by Reducing Par Value of Shares Entitled Subscriber to Rescind and Recover Money Paid.</p> <p>2. Where plaintiff agreed to purchase five shares of treasury stock of defendant corporation of a par value of $100 a share, defendant’s capital stock consisting of $4,000,000, divided into 40,000 shares, and thereafter defendant reduced its stoek to $400,000, consisting of 40,000 shares of a par value of $10, defendant thereby voluntarily put it out of its power to perform, and is liable for the money paid.</p>

From Lane: George F. Skipworth, Judge. Department 2. This action is founded upon a joint and several promissory note for the sum of $574, payable six months after date, with interest at 6 per cent per annum,, executed by defendants to the plaintiff on April 4, 1916, of which it is alleged that the plaintiff is the owner and holder, and that no part thereof has been paid.

Prom Multnomah: John P. Kavanaugh, Judge. Department 1. This is a suit for an accounting of a partnership.. The essential elements of the complaint are as follows : Walter H. Moore died on December 15, 1913, leaving as Ms heirs a son, the plaintiff, two grand-' children, the offspring of a deceased daughter, and his widow, the defendant Lauta H. Moore.

From Multnomah: Calvin U. Gantbnbein, Judge. In Banc. This is a suit to enforce the award of an arbitration, and for other relief. The facts as gleaned from the pleadings are, that on June 16, 1917, the plaintiffs and defendant Pallay were the joint owners of a tract of land lying partly in Multnomah and partly in Clackamas Counties, Pallay being the owner of an undivided two thirds, and Lesser and Lubliner being each the owner of an undivided one sixth thereof.

From Lincoln: James W. Hamilton, Judge. Department 2. The plaintiff brings this suit to have defendant, Mrs. Florence M. Ebbe, declared a trustee of a certain quarter-section of land for his use and benefit. A patent to the land was issued from the United States to Florence M. Creitz, now Florence M. Ebbe.

From Multnomah: George N. Davis, Judge. Department 2. In August, 1916, plaintiff, Williams, instituted this suit in Multnomah County to enjoin the defendant, Seufert Brothers Company, from the operation of fishing tackle and the occupancy of the location of a scow fish-wheel at a certain point in the Columbia River; for restraining and advisory orders directed to the master fish warden respecting duplicate licenses; and orders to the state board of fish and game…

From Multnomah.: Robert G. Morrow, Judge. Department 1. This is an action for damages brought by Nazar Shevchuk and Millie Shevchuk, his wife, against Fred Kotchik and Anna Kotchik, his wife, on account of an alleged unlawful interference with and obstruction of a private sewer. There were no pleadings except a complaint and an answer.

From Tillamook: George R. Bagley, Judge. Department 2. This is an action for the conversion of certain personal property. The cause was tried to the court and a jury and a verdict and judgment rendered in favór of the plaintiffs. Upon the motion of defendants to set aside the same because the evidence was insufficient to support the verdict, the' court set aside the verdict and granted a new trial. From this judgment plaintiffs appeal.

From Coos: John S. Coke, Judge. Department 1. The plaintiff says it is the owner of certain real property in Coos County upon which for the year 1917 there was assessed for state and county tax $1,259.18; for School District No. 9, .$764.92; 'for Port of Coos Bay, $241.25; for fire patrol, $9.20, totaling $2,274.55.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. The Pioneer Show and Commercial Printing Company, a corporation, is attempting to recover from the defendants the sum of $775.

<p>Corporations — Evidence Held to Show Indebtedness was Paid by Transfer of Stock.</p> <p>1. In suit by children of one brother and his wife against children of another brother to have declared a mortgage a deed of a sawmill from plaintiffs’ father and mother to defendants’ father, and to secure adjudication stock was transferred as security for indebtedness owing by plaintiffs’ father, evidence held to show defendants’ father held stock as security until a certain date, but that at such time an indebtedness owing to him from plaintiffs’ father was paid with five shares, and that defendants’ father became absolute owner of such number.</p> <p>Mortgages — Evidence Held not to Show Deed a Mortgage.</p> <p>2. In suit by children of one brother and his wife against children of another brother to have declared a mortgage a deed of a sawmill from plaintiffs’ father and mother to defendants’ father, evidence held insufficient to meet burden imposed by law on a party claiming that an instrument in form a deed is in reality a mortgage.</p> <p>Mortgages — Heavy Burden on Party Claiming Deed a Mortgage.</p> <p>3. The law imposes a heavy burden of proof on a party who claims that an instrument formally a deed is in reality a mortgage.</p>

<p>Criminal Law — Failure to Show by Record Disposition of Demurrer not Ground for Reversal.</p> <p>1. In view of Section 1626, L. O. L., providing that on criminal appeals the court must give judgment without regard to technical errors or defects, in a prosecution resulting in conviction of manslaughter, formal disposition of demurrer to the indictment was not so essential that silence of the record thereon constitutes a fatal defect, where defendant afterward entered plea of not guilty, and went to trial without objection or question.</p> <p>Homicide — Threat Admissible in Evidence Though not Directed Especially to Deceased.</p> <p>2. In a prosecution resulting in conviction of manslaughter, testimony of' decedent’s father that about eight months before the shooting defendant had said to him that, if he could not beat them any other way, he would do it with a Winchester, held admissible as a threat over objection that it was not directed especially toward deceased and was too remote; such threat having reference to a controversy about a road pursuant to which decedent was subsequently killed.</p> <p>Criminal Law — Testimony of Arrangement' in Defendant’s Absence not Hearsay.</p> <p>3. In view of Section 707, L. O. L., recognizing res gestae both as to facts in dispute and as to some aet that becomes important as evidence of facts in dispute, in a prosecution resulting in conviction of manslaughter, the controversy having originated over a fence across a road, testimony tending to show the arrangement with other persons under which decedent came to be at the seene of the shooting on watch to see who was putting up the fence held not incompetent hearsay because arrangement was made in defendant’s absence.</p> <p>Criminal Law1 — Homicide—Evidence of Other Crime as Showing Identity.</p> <p>4. In a prosecution resulting in conviction of manslaughter, the killing having taken place at defendant’s fenee, which he was putting up nightly to obstruct a road, decedent with others having been on watch to find out who was doing it, testimony of such others as to what occurred probably half an hour before the killing on the other side of the field from where the killing occurred, where the road went through the fence on that side, and that defendant then drew gun on the others when they were coming close enough to identify him, held admissible, and not objectionable as showing a collateral offense, and sufficient to justify the jury in concluding it was defendant.</p> <p>Homicide — Declarations by Accused as to Position in Firing.</p> <p>5. In a prosecution resulting in conviction of manslaughter, testimony of a deputy sheriff as to where defendant showed him he was when he fired the last shot at decedent, and about how far the place was from the panel in his fence, open on account of a road, which he had been putting up nightly, so that decedent with others had volunteered to watch for him, also how far the place was from that where empty shells were found, held admissible.</p> <p>Criminal Law — Homicide — Argumentative Instruction on Self-defense.</p> <p>6. In a prosecution resulting in conviction of manslaughter, instruction on the right of self-defense arising from an assault or attack with a dangerous weapon held properly refused as argumentative and invading the province of the jury.</p> <p>Homicide — Harmless Error in Refusal of Instruction.</p> <p>7. In a prosecution resulting in conviction of manslaughter, the refusal to defendant of his requested instruction referring to maliee and ill will held harmless to him in view of the verdict negativing the existence of malice or ill will on his part.</p> <p>Criminal Law — Following Language of Requested Instructions.</p> <p>8. The trial court is not required to give charges asked for in the exaet language in which they are requested, but need only cover the principles of law involved.</p> <p>Homicide — Killing Manslaughter Unless Justifiable or With Malice or Deliberation.</p> <p>9. Every killing is manslaughter unless it is justifiable or excusable, or is accompanied by malice or deliberation, when it becomes murder in the first or second degree.</p> <p>Homicide — Killing in Anger Without Excuse or Justification is Manslaughter.</p> <p>10. If defendant under provocation of a sudden attaek grew angry and killed deeedent without real or apparent necessity, the killing was not justifiable or excusable, and defendant was properly convicted of manslaughter.</p> <p>Homicide — Evidence Sustaining Conviction of Manslaughter.</p> <p>11. In a prosecution resulting in conviction of manslaughter, defendant having shot and fatally wounded decedent, who was watching a road through defendant’s land to see if he was the one who was putting up an obstructing fence every night, evidence held sufficient to sustain the verdict.</p> <p>Criminal Law — Beading Instructions Together.</p> <p>12. Instructions must be read together, and cannot be considered each by itself.</p> <p>Homicide — Instruction on Threats not Abstract.</p> <p>13. In a prosecution resulting in conviction of manslaughter, instruction as to the consideration of threats made by defendant against decedent in determining defendant’s intent and malice held not erroneous as abstract; there being some evidence of threats.</p> <p>Criminal Law — Argument of District Attorney.</p> <p>14. Though the language of the district attorney in argument was bitter and somewhat intemperate, reversal is not justified on that account alone.</p> <p>Criminal Law — Instruction not Coercing Jury — “Stubborn.”</p> <p>15. In a prosecution resulting in conviction of manslaughter, instruction to the jury by the court on their inability to agree, sending them back for further consideration, and" urging them to try to agree, if possible, held not erroneous as coercive, despite the expression admonishing them not to get stubborn and say they would not; “stubborn” meaning “unreasonably unyielding.”</p> <p>Homicide — Instruction on Self-defense.</p> <p>16. In view of Sections 1371, 1909, 1914, L. O'. L., in a prosecution resulting in conviction of manslaughter, instruction on self-defense held not erroneous in its limitation of defendant’s right to take his adversary’s life only to cases of threatened deadly harm or severe calamity “felonious” in character; the word “felonious” having been used as synonymous with great bodily injury.</p> <p>Criminal Law — False Assumption in Argument of District Attorney.</p> <p>17. In prosecution resulting in conviction of manslaughter, the assumption by the district attorney in argument that certain witnesses had identified defendant in a certain plaee on the night of the killing held not reversible error as more in the nature of a misconstruction of the testimony than a positive and willful misstatement; the charge having instructed the jury to disregard statements not sustained by evidence.</p>

<p>Vendor and Purchaser — No Vendor’s Lien on Conveyance in Consideration of Future Support of a Third Person.</p> <p>1. Where a conveyance of land is made in consideration of future support of a third person, no vendor’s lien arises.</p> <p>Liens — Equity will Create Lien on Property to Carry Out Agreement to Support Third Person.</p> <p>2. Where a conveyance of property is made in consideration of the future support of a third person, upon a breach of the conditions by the grantee, equity will then create a lien or charge on the property to carry out the spirit and intent with which the conveyance was made.</p> <p>Guardian and Ward — Guardian Entitled in Equity to Recover Amount Expended in Support of Incompetent from Grantee of Land Agreeing to Support the Incompetent for Life.</p> <p>3. Where a mother conveyed land to certain children in consideration of their promise to support after her death an incompetent child, and during her life the mother releases them from the promise, and after her death a guardian appointed for the incompetent person in good faith brings an action to set aside the release, and in such proceeding learns for the first time that the grantees had orally agreed at the time of the release to support the incompetent, defendants affirmatively alleging such oral contract and their readiness to comply therewith, the guardian should receive a reasonable compensation for support of the incompetent while under his care, and until the grantees again assume his care and support.</p>

<p>Principal and Agent — That Defendant SeUer’s Son Acted for Himself in Buying Potatoes Sold to Plaintiff Admissible.</p> <p>1. In action for failure to deliver potatoes sold by defendant’s minor son, in charge of his store, defendant claiming son had no authority, evidence of son that when he bought potatoes he secured them for himself with his own money held admissible to rebut any inference from son’s having been in charge of defendant’s store that potatoes were defendant’s.</p> <p>Trial — Instruction as to Signing of Contract Held not Erroneous in View of Rest of Instruction.</p> <p>2. In action for failure ■ to deliver potatoes sold by defendant’s minor son, an instruction that it was for the jury to determine whether contract was signed by both parties at the time it was entered into is not erroneous in that it required both parties to sign at the same time in view of other part of instruction, “and this becomes one of the material questions for you to determine in the course of settlement of the issues herein presented.”</p> <p>Principal and Agent — Authority not Provable by Declarations.</p> <p>3. The authority of an agent cannot be proved by his own declarations out of court.</p> <p>Sales — Buyer Who Demands Delivery Within Reasonable Time can . Enforce Contract.</p> <p>4. Where no time for delivery was fixed by contract of sale, if buyer demanded delivery within reasonable time, and was then ready, able, and willing to perform, there being no delivery offered by seller at any other time, buyer would be in position to enforce the contract.</p> <p>Appeal and Error — Exceptions to Instructions Partly Favorable Should be Pointed to Part Complained of.</p> <p>5. Where a party is excepting to a long series of paragraphs of instructions, part of which are favorable to him, and other parts vague and ambiguous, he shorild point out to court particular fault complained of, or at least point his exceptions to part particularly claimed to be erroneous.</p> <p>Appeal and Error — Subjunctive Instructions Based on Hypothetical Condition Held Harmless.</p> <p>6. In aetion for failure to deliver potatoes sold, instructions subjunctive in character and based on hypothetical condition that a reasonable time for performance of the contract had expired when assigned by the buyer to plaintiff held harmless.</p> <p>Sales — Demand Necessary to Fix Liability Where Time for Performance not Fixed.</p> <p>7. Where contract of sale fixes no time for delivery, there can be no default whieh either buyer or seller can take advantage of until one party or other has made demand for delivery or acceptance.</p> <p>.Sales — Contract not Fixing Time for Delivery Lapses After Reasonable Time Without Demand.</p> <p>8. If either party to a contract of sale not specifying time for delivery lets a reasonable time expire without demand, the contract lapses, and neither party can enforce performance.</p> <p>Appeal and Error — Complaint cannot be Made of Too Favorable Instruction.</p> <p>9. Appellant cannot complain on account of an instruction more favorable than he had a right to ask.</p> <p>Evidence — Perishable Character of Potatoes Matter of Common Knowledge.</p> <p>10. It is a matter of common knowledge that potatoes are a perishable product, not lasting over one season.</p> <p>Sales — Five Months’ Delay in Demanding Delivery of Potatoes Unreasonable.</p> <p>11. Five months’ delay on the part of the buyer of potatoes and his assignee in demanding delivery should be considered unreasonable as matter of law.</p>

From Multnomah: George W. Stapleton, Judge. Department 2. The plaintiff is an Oregon corporation, and in 1908 entered into seven different written contracts with the defendant, which were identical in form, for the improvement of a number of its streets.

From Multnomah: Harry H. Belt, Judge. In Banc. This is an action at law, wherein the plaintiff seeks to recover for materials furnished to the defendant Zindorf as a contractor in the construction of a reservoir for the City of Astoria, and the Fidelity and Deposit Company of Maryland is joined as a defendant by reason of its having executed a bond, in compliance with the statute, conditioned, among other things, for the protection of those supplying materials for the…

<p>Death — Statute Makes Comity Liable for Death from Defective Highway Bridge; “Pari Materia.”</p> <p>1. Section 6375, L. O. L., giving right of action against, county to one injured by defective highway or bridge thereon, being a legal county road, with the earlier statute, Section 380, giving right of action for death where, had the person lived, he might have maintained an action for injury done by the same wrongful act or omission, gives right of action for death from such a defective bridge; the statutes being in pari materia, that is, relating to the same thing or subject, though enacted at different times.</p> <p>Bridges — Point of Accident, Relative to Liability of County, for Jury.</p> <p>2. The question, relative to liability of county for death from a defect in a bridge, whether the point of the accident, not in dispute, was outside the corporate limits of a city, is for the jury on conflicting testimony, notwithstanding a civil engineer, who made a survey, testified on one side.</p> <p>Bridges — Evidence of Other Accidents at Same Place Competent on Question of it Being Dangerous.</p> <p>3. Evidence of other accidents having occurred at the same place on a highway bridge is competent on the question of the place being dangerous.</p> <p>Evidence — That Auto has Current Number-plate Evidence of Compliance with Motor Vehicle Law.</p> <p>4. The motor vehicle law providing for number-plate being attached to a ear as evidence that the law has been complied with, evidence of a car being so equipped with a plate for the current year is admissible without other evidence of a license being issued.</p> <p>Bridges — Repairing by County Officials Admissible to Show County, and not City, Liable,</p> <p>5. On the disputed question of whether the point on a bridge where an accident occurred was within the corporate limits of a city,, or in the other part of the county, as plaintiff contended, the conduct of the county officers in repairing it could be considered by the jury.</p> <p>Trial — Requested Instruction not Based on Evidence Properly Refused.</p> <p>6. A requested instruction that, if one when injured was traveling on the left side of the street, he was traveling unlawfully, is properly refused; there being no testimony on which to base it.</p> <p>Trial — Refusal of Instructions Covered by Those Given Proper.</p> <p>7. It is not error to refuse requested instructions which are fully covered by instructions given.</p> <p>Evidence — Presumption That Law has Been Obeyed Prevents Nonsuit and Directed Verdict.</p> <p>8. The statutory disputable presumption, declared by Section 799, subdivision 34, L. O. L., that the law has been obeyed, is, by provision of Section 793, evidence, and so prevents nonsuit and directed verdict.</p>

<p>Jury — Defendant Entitled to Jury Trial on Appeal to Circuit Court Notwithstanding Small Amount Involved.</p> <p>1. On an appeal to the Circuit Court from the District Court, defendant was entitled to a jury trial under Article I, Section 17, and Article VII, Section 3, of the Constitution, though the controversy involved only $37.50.</p> <p>Jury — Right to Jury Trial may he Regulated hy Statute Within Certain Limits.</p> <p>2. The exercise of the constitutional right of trial hy jury may within well-defined limitations he regulated hy statute.</p> <p>Courts — Rules cannot Regulate Matter Regulated hy Statute.</p> <p>3. Where the courts exereise the power of making rules, whether such power is conferred hy statute or deemed to exist in the ahsenee of statute, they cannot by mere rule of court regulate a matter already regulated by statute.</p> <p>Courts — Rule Requiring Payment of Jury Fee Before Trial Held to Violate Statute.</p> <p>4. Assuming that under Section 916, L. O. L., the Circuit Court, in the absence of statute, can by rule require the payment of the jury fee four days before the cause is called to be set for trial under penalty of losing the right to a jury trial, such a rule violates Section 1117, L. O. L., as amended by Laws of 1915, page 91, requiring the clerk to collect such fee at the time the action, suit, or proceeding comes on for trial by jury, especially as the amendment eliminated a provision for payment two or four days before the ease was called.</p> <p>Courts — Rules must Yield to Statute.</p> <p>5. When a rule of court conflicts with the statute, it must yield to the statute.</p> <p>[As to the validity of a court rule in contravention of common law or statute, see the note in 19 Ann. Cas. 801.]</p>

From Multnomah: Robert Tucker, Judge. See, also, 88 Or. 403 (170 Pac. 923). Department 2. On October 5, 1906, the plaintiff leased to the defendant for a period of 23 years from April 1, 1907, lot 4 in block 64 of the City of Portland, whereby the defendant covenanted and agreed to pay the plaintiff a monthly rental of $1,200 for the first 21 years of the lease, and $1,450 monthly for the remaining 2 years.

From Multnomah; William N. Gatens, Judge. In Banc. This is an action to recover $380 for services of plaintiff, as an attorney for the defendant, in prosecuting a claim of the defendant against the United States for $1,900 before Congress and its committees, and securing an act of Congress reimbursing defendant in such sum for the loss of land in the “overlap” in Sherman County, Oregon.

From Tillamook: George R. Bagley, Judge. Department 2. Plaintiffs instituted this suit to obtain a decree declaring plaintiff Marion T. Chance entitled to curtesy in certain land described in the complaint, and that subject to such right plaintiff Addie Schmelzer be declared to be the owner in fee of an undivided one-fourth interest in the land as one of the four heirs of Laura I. Chance, deceased, the other heirs being defendants Rachel Weston, Myra Goeres and Georgia…

From Union: John W. Knowles, Judge. In Banc. The plaintiff, engaged in farming certain described lands in Union County, says in substance that on or about the —:— day of April, 1919, at Elgin, Oregon, he ordered of the defendant five sacks of Bed Chaff club wheat, a spring wheat suitable for spring seeding, to be 'used as seed and sown for the purpose of raising a crop upon said premises during 1919, all of which was communicated to the defendant.

From Union: John W; Knowles, Judge. In Banc. The plaintiff brought this suit against her father, A. B. Conley, and her brother, J. Frank Conley, and their wives, respectively her mother and her sister-in-law, to quiet her title in 80 acres of land in Union County, claiming that her father had given her the tract in 1900, in pursuance of which she and her husband had left their residence on land owned by the latter, had taken possession of the 80-acre tract and had held the…

From Multnomah: Robert Tucker, Judge. In Banc. This is a proceeding in mandamus against School District No. 1 of Multnomah County, its hoard of directors and acting superintendent, to compel the restoration of the plaintiff to her position and employment as a teacher in the Lincoln High School of that district.

From Yamhill: Harry H. Belt, Judge. Department 1. Plaintiff brings this action for the possession of certain personal property described in a chattel mortgage. The cause was tried by the court without the intervention of a jury. Findings of fact and conclusions of law were made, and a judgment was rendered thereon in favor of plaintiff for the possession of the property or the value, $1,000. Defendants appeal.

From Lane: George F. Skipworth, Judge. Department 2. This is a suit wherein it is sought to establish and declare a trust in certain real property. The complaint alleges that on October 20, 1913, W. H. Abrams and Alice, his wife, conveyed the real estate therein described to one Sanford, who on the next day executed a deed reconveying the same property to Abrams and wife jointly.

From Douglas: James W. Hamilton, Judge. Department 2. This is a suit brought by the plaintiff against the City of Eoseburg to quiet title to certain lots in said city, and to enjoin the city from asserting and enforcing the lien of certain assessments made by the city, for the purpose of putting in a short piece of sewer in Flint’s Addition to said city. The plaintiff’s property is not in Flint’s Addition, but in West View Addition to the city.

From Union: John W. Knowles, Judge. In Banc. This proceeding was initiated in the County Court of Union County, to have a guardian appointed for the defendant, James Mcllroy, father of the petitioner.

<p>Guaranty — Contract—“Purchase”—“Transfer.”</p> <p>1. Where a company .contracted to sell goods on eredit at wholesale to a buyer reselling the same in certain territory, and the buyer with the company’s approval accepted from another buyer from it under a similar contract goods in his possession not paid for, and authorized the company to charge him with the amount of the invoice price thereof, he obtained title thereto, by transfer from the other buyer, who had absolute title, and not by purchase from the company, within the terms of a guaranty of payment for goods purchased under the contract; a “transfer” being an act or transaction by which property of one person is by him vested in another.</p> <p>Guaranty — Liability—Compensation—Construction.</p> <p>2. Liability of guarantors without hire or compensation is Strictly construed.</p>

<p>Pleading — Amendment—Discretion of Court — Implied Contract.</p> <p>1. Where the original complaint relied on a supplemental oral agreement modifying a written contract for services in erecting steel dredge-hulls, etc., it was not an abuse of the trial court’s discretion to allow plaintiff to file an amended complaint, relying on an*implied contract to pay a greater sum; the two causes of action not being inconsistent.</p> <p>Work and Labor — Contract—Additional Compensation — Implied Agreement.</p> <p>2. Where, defendant agreed to pay a fixed sum per ton for constructing steel dredge-hulls out of fabricated steel, and defendant failed to promptly supply the steel, and that supplied did not have numbers, etc., plaintiff, having at defendant’s request continued to perform the contract, is entitled to recover additional compensation on the implied contract.</p> <p>Contracts — Evidence—Surrounding Circumstances.</p> <p>3. Under Section 717,' L. O. L., for the proper construction of a written contract, the circumstances under which it was made, including the situation of the subject matter and parties, may be shown.</p> <p>Evidence — Technical Meaning of Contract Notwithstanding Presumption.</p> <p>4. Under Section 718, L. O. L., evidence is admissible to show that the terms of a written contract have a technical, local, or peculiar significance, notwithstanding the presumption that words are used in their primary and general acceptation.</p> <p>Evidence — Contract—Parol Evidence to Supply Omitted Term.</p> <p>5. Under Section 713, L. O. L., it is competent to introduce • testimony to supply those terms actually agreed upon by the parties to a written contract, but not contained in nor conflicting with an incomplete written contract.</p> <p>Evidence — Contract—“F. O. B. Cars” — Fabricated. 1</p> <p>6. In an action on contract for the erection of barges out of fabricated; steel, evidence that the steel was not painted, so that the numbers wore off before receipt, was admissible, as well as evidence as tp the meaning of the terms “f. o. b. cars,” “fabricated,” etc.</p> <p>Evidence — Contract—Time—Delivery of Steel.</p> <p>7. In an action for additional compensation on a contract for the construction of steel barges out of fabricated steel, evidence as to the time of delivery of the steel was admissible, though not specified in the contract.</p> <p>Work and Labor — Quantum Meruit — Right to Recover for Extra Work.</p> <p>8. Where rfailure to perform his part of the contract, by defendant, who had engaged a contractor for a fixed price per ton to construct steel dredges out of fabricated material, made the labor more burdensome and expensive, the contractor, having continued the contract at defendant’s request, could recover on quantum meruit.</p> <p>Contracts — Partial Payments — Additional Compensation.</p> <p>9. Where a contract for the construction of steel barges out of fabricated materials provided for partial payments, the fact that the contractor accepted partial payments at the contract rate, notwithstanding defendant’s failure to carry out his agreement greatly increased the labor eost, etc., did not preclude recovery of additional compensation, where defendant frequently assured the contractor that when the work was done he would make the same right.</p> <p>Appeal and Error — Conflicting Evidence — Verdict not Reviewed.</p> <p>10. A verdict on conflicting evidence will not be reviewed.</p> <p>Work and Labor — Contract—Deviations—Additional Compensation.</p> <p>11. Where defendant’s deviations from the contract were most serious, and caused the contractor additional expenditures for labor cost, etc., the fact that the deviations were not numerous will not prevent recovery of additional compensation.</p> <p>[As to right of contractor to recover for extra work ordered by architect, but not ordered in express manner provided by working contract, see notes in 7 Ann. Cas. 213; 17 Ann. Cas. 81.]</p>

<p>Waters — Farmers’ Domestic Water District — Election of Officers— Ballot Title.</p> <p>1. Under Laws of 1917, page 721, Section 3, relating to the organization and election of commissioners of a water district, prescribing as a ballot title “Shall that portion of - county, * * be incorporated as a municipal corporation for the purpose of obtaining water for domestic use for its inhabitants and to be known as,” followed by the proposed name, and providing that the affirmative should] be numbered 300 and the negative 301, a ballot entitled “For Incorporation of Farmers’ Domestic Water District,” vote “Yes” or “No,” was not such a departure or irregularity as to invalidate an election, as its form could not be misleading.</p>

From Umatilla: Gustav Anderson, Judge. Department 1. This is a suit primarily to have interpreted a certain clause in the will of Samuel P. Sturgis, deceased, and arises out of the following circumstances : On the seventh day of January, 1896, Samuel P. Sturgis executed in due form a will containing the' following provision: “I give and bequeath to James A. Fee and Edward D. Boyd, as trustees, the sum of Five Thousand ($5,000.00) Dollars in trust, to be invested by them and…

From Multnomah: John P. Kavanaush, Judge. Department 2. This is a proceeding in mandamus.

<p>Judgment — Waters—Water Eights — Priorities—Binding on Parties to Litigation.</p> <p>1. A decree fixing the rights and priorities of parties to a litigation over water rights did not affect other users of the waters of the river and its tributaries who were not parties, to the suit, so that it was competent for the water hoard subsequently, on proper petition, to determine the rights and priorities of all users of the water system.</p> <p>Waters — Water-master—Parties—Adjudication of Water Bights.</p> <p>2. Where, under the present status of adjudication of certain water rights, the only dispute that can arise concerns the administration of a prior decree regulating priorities, the Supreme Court, plaintiff having voluntarily dismissed the suit as to the water-master, the official in charge of administration of the prior decree, can do nothing which would affect him.</p> <p>Injunction — Officers—Enforcing Void Statute may be Bestrained.</p> <p>3. The general rule is that a court of equity is without jurisdiction to restrain by injunction the enforcement of erminal proceedings, the exception being that, where public officers are undertaking to enforce a void- statute, injunction will lie against them, though not against the state.</p> <p>[As to power of equity to enjoin criminal prosecution, see notes in I Ann. Cas. 121; 19 Ann. Cas. 459; Ann. Cas. 1916C, 1153,]</p> <p>Waters — Bight to Use — Cannot Benefit Junior User — Injury to Intermediate User.</p> <p>4. One having priority in the use of water is entitled to use it so that its highest duty will be effected, and can employ it to the best advantage of the tract to which it is appurtenant, but cannot postpone the use of water at its best on such tract in favor of a separate parcel jiinior to another which is junior to the first, and, having used it on the tract junior to all, take it up and give a belated use on the first tract to the injury of the intermediate user.</p> <p>Waters — Water-master—Priorities and Privileges must be Preserved.</p> <p>5. It is the duty of a water-master, under Sections 6617, 6618, L. O. L., to preserve the priorities and the quantities of irrigation water consistently with the highest duty of water as applied to all concerned.</p> <p>Waters — Courts—Authority—Eule of Evidence — Penalties.</p> <p>6. The Circuit Court, in suit concerning water rights and priorities in certain streams, was without authority to establish an arbitrary rule of evidenee or to prescribe penalties for future violations of priorities by declaring a voluntary diversion to a tract to wbicb the water was not appurtenant would be conclusive evidenee it was not needed by a prior appropriator for fifteen days.</p> <p>Appeal and Error — No Appeal from Circuit Court to Circuit Court.</p> <p>7. There can be no appeal from the Circuit Court to the Circuit Court, especially to the same Circuit Court.</p>

From Harney: Dalton Biggs, Judge. In Banc. This is an action for damages on account of trespass by defendant’s sheep. For about thirty years plaintiff has been engaged in the sheep business in Harney County, Oregon, and is the owner of 560 acres of unfenced pasture land situated about 75 miles south of Burns, Harney County, in what is known as the “Steen’s Mountain Country.” The complaint is in the usual form.

From Lane: George F. Skipworth, Judge. Department 2. TEis four cornered and very complicated suit arose over a real estate transaction in tEe City of Eugene. By tEis transaction one Matlock and tEe defendants, Gross and McCallum, contracted to purcEase from tEe defendants, Nancy J. SEelley and J. M. SEelley, a certain lot in said city for tEe sum of $10,750. Of tEis sum $3,500 was paid down, tEe. tEree purcEasers eacE contributing one third of tEe payment.

From Columbia: James A. Eakin, Judge. Department 1. The Pacific Livestock and Lumber Company, a corporation, began an action in ejectment against the Portland Lumber Company and the Noyes-Holland Logging Company, also, corporations, to recover possession of certain real property.

From Lane: George F. Skipworth, Judge. Department 1. This was-an action begun in the Justice’s Court in Lane County to recover the sum of $57.55, damages, which it is alleged plaintiff sustained, by reason of defendant having negligently driven his auto truck into plaintiff’s automobile. The defendant denied the allegation of negligence on his part, alleged negligence on the part of the driver of plaintiff’s car, and counterclaimed for $25 damages.

Prom Jackson: Prank M. Calkins, Judge. In Banc. This is an action at law brought by the respondent against the appellant and his wife, to recover upon a promissory note for the sum of $3,60Q, and interest. The note was given as a part of the purchase price for a certain tract of land in Jackson County, purchased by the defendant, John H. Hueners, from one L. M. Lyon, who was the original payee of the note.

From Washington: George E. Bagley, Judge. Department 2. In this case the defendant is a Wisconsin corporation, and the plaintiff brings this action to recover damages for the alleged breach of a contract by which the plaintiff was empowered to sell a large amount of timber for _ the defendant company, and for the sale of which he was to receive a commission of 5 per cent of the selling price.

From Marion: George G. Bingham, Judge. Department 2. The plaintiffs are owners of large tracts of timber in Columbia County in a region served by the Columbia & Nehalem River Railroad Company, which owns and operates a railroad about 27 miles in length in that county, mainly for the purpose of haul-, ing logs to the Columbia River.

From Wallowa: John W. Knowles, Judge. In Banc. This is a suit to enjoin the defendants from diverting the waters of a small unnamed stream in Wallowa County, to the exclusive use of all of which waters the plaintiff claims the right.

From Tillamook: George E. Bagley, Judge. Department 2. The plaintiff, a municipal corporation, seeks to condemn a strip of land 60 feet in width., lying 30 feet on each side of the center line of the coast highway survey, through the land of the defendants Frank and Marie Johnson in Tillamook County, Oregon. The County Court of that county duly adopted a resolution declaring it necessary to acquire the strip for road purposes.

<p>Appeal and Error — Transcript not Filed Within Thirty Days— Effect.</p> <p>1. Where an appeal was perfected April 16, 1920, and no order extending the time for filing the transeript appeared of record, the appeal will, under Seetion 554, L. O. L., as amended by Gen. Laws of 1913, page 618, requiring the transeript to be file(d in thirty days, be dismissed, under subdivision 2, if the transcript is not filed within the required' time.</p> <p>Appeal and Error — Dismissal of Appeal — Judgment Against Sureties;</p> <p>2. Where an appeal was dismissed, under Seetion 554, subdivision 2, L. O. L., as /amended by Gen., Laws of 1913, page 618, for failure of appellant to file a transcript within thirty days, judgment will, under subdivision 3, be enforced against the appellant and his sureties;</p>

<p>Divorce — Evidence—Sufficient to Show Personal Indignities.</p> <p>1. Where defendant had frequently stated with profanity that he did not care for plaintiff and had refused to permit her to return home after she went to take cure of his sick mother, the charge of personal indignities rendering life burdensome, which is ground for divorce under Section 507, L. O. L., was sustained.</p> <p>Divorce — Grounds—Personal Violence Unnecessary to Constitute , “Personal Indignities.”</p> <p>2. To constitute personal indignities which are a ground for divorce under Section 507, L. O. L., it is not necessary that there be actual personal violence or attempt at personal violence.</p> <p>[On necessity of personal violence to constitute cruelty warranting divorce, see note in 9 Ann. Cas. 1090. On habits or conduct of spouse as cruelty warranting divorce, see note in Ann. Cas. 1918B, 480.]</p> <p>Divorce — Custody of Children — Defendant Earning $50 per Month Required to Pay $15 per Month for Support of Daughter.</p> <p>3. Where plaintiff had been awarded a divorce with custody of her 14-year old daughter, but it appeared that defendant had no property except his earnings, and that he was in poor health and capable of earning only about $50 per month, he will be required to pay $15 per month for the support of the daughter.</p>

From Multnomah: George W. Stapleton, Judge. Department 1. This is an action wherein plaintiff seeks to recover damages for breach of a contract of employment. The complaint sets up two causes of action.

From. Multnomah: George N. Davis, Judge. In Banc. This proceeding is a writ of review to bring up the proceedings of the board of civil service commissioners of the City of Portland, Oregon, confirming and refusing to set aside the action of the executive board of that city in discharging the plaintiff, who was a member of the police force thereof. The case is an old one, and has been pending on appeal for a long time.

From Jackson: Frank M. Calkins, Judge. In Banc. This is a proceeding brought in the Circuit Court of the state of Oregon for Jackson County, to confirm the creation and organization of an irrigation district, and the election and proceedings authorizing the issue and sale of the bonds of said district in the sum of one million five hundred thousand ($1,500,000) dollars, for irrigation purposes.

From Lane: John S. Coke, Judge. Department 2. On April 14, 1913, plaintiff, Frances E. James, acting through her husband, W. F. James, entered into a contract in writing with defendant, George D. Ward, by the terms of which defendant agreed to sell to the plaintiff a tract of land in Lane County, Oregon, consisting of about 640 acres, described in the complaint, for the sum of $18,000, of which $1,000 was paid in cash, and 240 acres of land in South Dakota at the agreed…

Prom Multnomah: John P. Kavanattgh, Judge. Department 1. The assessor of Multnomah County made an assessment against Endicott, Johnson & Company for “money, notes and accounts” in the sum of $5,000, and for “office furniture, library, instruments,” in the sum of $30. The board of equalization for Multnomah County denied an application made by Endicott, Johnson & Company for the cancellation of the assessment, and Endicott, Johnson & Company appealed to the Circuit Court.