Volume 97 — Oregon Reports

Original Proceedings in Mandamus in Supreme Court. Department 2. ■ The plaintiff is an organized school district of Marion County, embracing the corporate limits of the City of Salem. The defendant is the duly elected, qualified, and acting county school superintendent. of Marion County.

From Multnomah: John P. Kavanaugh, Judge. Department 1. This is an action to recover damages for injuries to certain articles of personal property and for the destruction of other articles of personalty. The action was brought by Harry Howard, and he obtained a verdict and judgment against the Kenwood Land Company, and the defendant then appealed.

From Multnomah: Robert G. Morrow, Judge. Department 2. The plaintiff filed a petition for a writ of habeas corpus, claiming that he is unlawfully detained, imprisoned, and restrained of his liberty by the defendant as sheriff of Multnomah County; that John Philip pretends and assumes to be a justice of the peace in and for District No. 6 of Columbia County; that he is not, and never was, a resident of that district, but is a resident of District No. 2, registered and voting…

From Deschutes: T. E. J. Duffy, Judge. Department 1. This is an action for damages for breach of a contract for sale and delivery of lumber. The facts, as alleged in the complaint, are as follows: “II.

From Clatsop: James A. Eakin, Judge. In Banc. • This is a suit brought by plaintiff, E. P. Noonan, in his own behalf, and also for the benefit of all taxpayers and owners of property liable to taxation in the City of Seaside, a municipal corporation in Clatsop County, Oregon.

From Multnomah.: George W. Stapleton, Judge. In Banc. This is a suit for the foreclosure of a mortgage. For the purposes of this appeal, the parties have stipulated the facts, which, briefly stated, are as follows: In 1909 the plaintiff sold the property which is the subject of the suit, to the defendant Hoch for the sum of $40,500, of which $10,500 was paid in cash, and for the remaining $30,000, there were executed the note and mortgage sued upon.

From Multnomah: Bobert Tucker, Judge. In Banc. This is an action by Eugenia H. Taggart against School District No. 1 of Multnomah County. From a judgment in favor of plaintiff the defendant appeals. Beversed and remanded with directions to enter judgment only for the sum admitted by defendant to be due. On petition for rehearing.

From Columbia: James A. Eakin, Judge. Department 1. Held: reversing the decree, that the provisos in the grant were not conditions subsequent, but were covenants, and deciding that the interest of the companies in the lands did not exceed $2.50 per acre, and that the realty should be sold in accordance with such legislation as Congress might see fit to provide therefor.

<p>Landlord and Tenant — Lease- to Lessee “and Assigns” Transferable.</p> <p>1. Lease running to lessee “and assigns” shows an expressed consent to an assignment or subletting of contract and property, so that, in an action on claim and delivery for personal property, evidence that the lease was a nonassignable -personal contract was properly rejected.</p> <p>Sales — Transfer of Personal Property Under Lease Held Bailment and not Sale.</p> <p>2. In an action in claim and delivery-for possession of personal property consisting partly of livestock delivered with land leased to defendants, statements in the lease showing agreement on termination to return stock identical or in kind with provision for replacing -any killed and for loss from disease held to show the property was intended to remain that of lessor, under bailment and not a sale.</p> <p>Landlord and Tenant — Bight of Lessor to Recover Personal Property on Breach Extends to Subtenant.</p> <p>3. Where a lease contained covenants under which lessor could terminate the lease and retake possession of both real and personal' property, the power is equally effective os against -a subtenant, so that in an action to recover the personal property it was error to exclude evidence of breaches of covenants.</p> <p>Landlord and Tenant — In Landlord’s Action to Recover Personal Property it was Error to Enter Nonsuit in Favor of Defendant Whose Answer Showed Possession of Property in Suit.</p> <p>4. In an action against tenants to recover personal property after breach of lease of farm, where according to answer one defendant remained in possession of the property as the agent of another, and the answer further shows that the sheriff took such goods from such defendant and his principal, it was eTror to enter nonsuit in favor of such defendant.</p> <p>Landlord and Tenant — Lessor Entitled tot Recover Property Received by Tenants not Specified in Lease.</p> <p>5. Landlord, being entitled at any time to reclaim such personal property as he left on premises and which was not included, in lease, was entitled to judgment therefor, in claim and delivery for this and other personalty - included in lease after tenant’s breach of covenants. ,</p>

From Baker: Gustav Anderson, Judge. In Banc. In Stewart’s Addition to Baker, Oregon, Tentli Street runs north and south between blocks 4 and 5. Crossing it at right angles, beginning on the north, are Church Street, Center Street, and Jackson Street, each running east and west. Center Street appears to have been laid out through the blocks mentioned after they were platted.

<p>From Clatsop: James A. Eakin, Judge.</p> <p>In Banc.</p> <p>The defendant is an Oregon corporation engaged in diking lands in the States of Washington and Oregon, with its principal office at Astoria. The complaint alleges that about January 23, 1915, the defendant entered into a written contract with certain named individuals, wherein it covenanted and agreed to construct and complete a certain dike 702 rods long on G-ray’s River in Washington, within six months, at an agreed price of $8 per rod; that 181.21 rods of the dike ran. over and across the land of Mary Westerlund, one of the contracting parties, the mother of the plaintiff; and that under the terms of that contract with the defendant she was required to pay $8 a rod for the construction of that portion of the dike. It is averred that immediately after the execution of the contract between those parties, the plaintiff entered into a contract with the defendant, wherein it was agreed:</p> <p>“That in consideration that defendant would construct said dike over and across the said lands of said Mary Westerlund a distance of 181.21 rods, and would charge the said Mary Westerlund therefor only the sum of $2.50 per rod, and would release her from her written obligation to pay defendant the sum of $8 per rod, and change and alter said contract so that said Mary Westerlund would not be required to pay to exceed the sum of $2.50 per rod for such dike, this plaintiff would clear the said entire right of way for the entire dike, which the defendant contracted and agreed to construct throughout its entire length, namely, 702 rods, for the sum of $2 per rod only, all of which terms the said defendant accepted and agreed upon, and thereupon, and pursuant to said contract, and not otherwise, this plaintiff, on pr about said January 23, 1915, began the work of clearing said right of way, and cleared said right of way in accordance with his contract, and completed said work on the 26th day of July, 1915, at which date the said clearing was entirely completed throughout the said entire line of said dike, namely, 702 rods, fully in accordance with the terms of said contract entered into between plaintiff and defendant.”</p> <p>The plaintiff says that by reason thereof there became due and owing to him from the defendant $1,400, no part of which has been paid.</p> <p>As a second cause of action the plaintiff alleges that between July 26 and August 24, 1915, at the special instance and request of the defendant, he cleared a right of way upon which it desired to and did construct a dike over the land of one M. Sverdrup in Wahkiakum County, Washington, for a distance of 1,100 feet, by cutting and removing brush and stumps, and that his services were reasonably worth $906.75, no part of which has been paid. As to each cause of action it is alleged that the labor was performed in the State of Washington, and that under the laws of that state the plaintiff is entitled to recover interest from the date of the completion of his contracts.</p> <p>The defendant admits its corporate character and the making of the contract of January 23, 1915, with the parties therein named, for the construction of the dike on Gray’s River, but denies all other material allegations of the complaint in both causes of action. As a further and separate answer it 'alleges that on January 23, 1915, the defendant “made a contract with said Mary Westerlund, and not this plaintiff, that it would allow said Mary Westerlund on her contract price the sum of $2 per rod for all lands cleared by said plaintiff,” and that—</p> <p>“Plaintiff promised and agreed to have a donkey engine in readiness to clear said land in advance of the work of defendant, and agreed to clear said land of all stumps, trees and other obstacles, and plaintiff agreed to perform said work and labor for said sum of $2 per rod and ’ have the work and labor credited to and deducted from the contract price of Mary Westerlund of $8 per rod for completing said dike, and no other or different contract was made between plaintiff and defendant and said Mary Westerlund.”</p> <p>The defendant charges that the plaintiff failed to have the donkey engine ready at the agreed time, and neglected to clear the lands properly or to perform his agreement; that by reason thereof the defendant was delayed in the performance of its contract; and that at its own expense it was compelled to and did clear a large portion of the lands which were diked. It is then averred that under her contract Mary Westerlund was to have paid the defendant $500 when the dike was half completed, $500 when it was finished, and the balance within six months thereafter, but that she failed and neglected to pay any part thereof or otherwise comply with her contract; that the defendant was forced to file a lien upon her lands and bring suit to foreclose it; that upon the completion of the contract there was due and owing from Mary Westerlund $2,091.20; that pursuant to the contract pleaded in the answer a credit of $1,044 upon the lien against her was given to Mary Westerlund, as an allowance in full for all work performed by the plaintiff in clearing land for the defendant at the agreed price of $2 a rod; and that “thereafter a settlement was had with said Mary Westerlund, by and with the knowledge of plaintiff, wherein and whereby defendant agreed to allow said Mary Westerlund and this plaintiff the further sum of $544.20 as a credit on said contract price for diking said lands, and said Mary Westerlund settled with defendant by paying it the sum of $500 in full settlement and satisfaction of all claims and demands by either party on both of said contracts.” It is finally said that the plaintiff cleared only 522 rods of land; that the sum of $1,044 so credited was in full payment thereof, and that no other' or further sum “is due either plaintiff or Mary Westerlund upon either or both of said contracts.” The reply denied all of the new matter in the answer.</p> <p>A trial was had, and the jury returned a verdict in favor of the plaintiff and against the defendant for $1,540, upon which judgment was entered. The defendant appeals.</p>

From Multnomah: William N. GateNS, Judge. In Banc. This is a suit brought by plaintiffs, who are itinerant venders of certain patent or proprietary medicines, which may be described generally as Watkins Family Remedies, to enjoin their arrest and prosecution under Section 19, Chapter 164, General Laws of 1913.

From Douglas: James W. Hamilton, Judge. In Bane. This is a motion to dismiss the appeal of defendant H. E. Doering, and is based upon the following facts: On October 25,, 1917, plaintiffs began a suit in the Circuit Court of Douglas County against H. E. Doering to have declared forfeited a certain contract for the purchase of a tract of land in Douglas County, and to quiet the title thereto, and to have the defendants barred and foreclosed of any right or interest therein.

<p>Municipal Corporations — Notice of Intention to Improve Street Indefinite.</p> <p>1.' Notice of intention to improve street in City of Sheridan, given pursuant to Sheridan - City Charter, Section 59, held insufficiently definite to give the city jurisdiction to make the improvement, as not stating how thick the wearing surface of asphaltic concrete pavement was to be, or what was the proper grade, crown, thickness, and wearing surface.</p>

From Yamhill: Harry H. Belt, Judge. Department 2. This is a suit to restrain the City of Sheridan from collecting assessments' for the improvement of Mill Street in that city.

<p>Agriculture — Member of Fruit Growers’ Association Held Entitled to. Surplus After CanceUation of Membership.</p> <p>1. A member of a fruit-growers’ incorporated association, having a by-law providing that cancellation of membership surrendered the membership, together with all benefits accruing thereunder and all right and interest of every kind and nature, held entitled on cancellation of his membership to part of a surplus on hand arising out of charges for handling fruits under contracts providing that members were entitled to pro rata share of any amount which should remain after payment of charges and expenses.</p> <p>Agriculture — Statements Rendered Member of Fruit Growers’ Association Held not to Show Acquiescence in Business Methods Followed.</p> <p>2. In an action by one who had been a member of a fruit-growers’ incorporated association for a part of a surplus in the hands of the association, the rendering of annual statements to the plaintiff held not to show that plaintiff aequieseed in the business methods followed by the association in regard to creating a surplus, where such statements contained nothing more' than the amount of sales of plaintiff’s fruit, together with the sum which the association had been paid, not including or in any manner referring to charges made for handling, storage, etc.</p>

From Douglas: George F. Skipworth, Judge. In Banc. Plaintiff, a taxpayer in Douglas County, brings this suit against the state highway commission, H. J. Hildebum, a contractor, and other nominal defendants, to enjoin the location of the Pacific Highway as the commission is attempting to construct the same from Myrtle Creek, in said Douglas County, south toward Canyonville.

From Clatsop: James A. Eakin, Judge. Department 1. This is an action to recover damages on account of some cans containing salmon becoming rusty while in defendant’s warehouse in Astoria, Oregon. David Hansen and his wife, Mary Hansen, and his two daughters, Ivy and Lena, are partners doing business as D. Hansen Packing Company. The defendant, Oregon-Washington Railroad & Navigation Company, is a corporation.

<p>Reformation of Instruments — Reformation of Lease to Provide for Porfeiture of Deposit on Lessee’s Breach Held Warranted.</p> <p>1. In a suit by lessor after the lessee’s bankruptcy to reform 'the lease to provide for forfeiture of a deposit in event of the lessee’s breach, relief held warranted, -and as it determined the controversy under Section 390, L. O. L., permanent enjoining of the lessee’s trustee in bankruptcy from attempting to recover the deposit was proper.</p> <p>Reformation of Instruments — Equity may Reform an Instrument Where it Does not Express the Intent, Due to Error of Law.</p> <p>2. It is one of the functions of a court of equity, to grant relief by reforming an instrument when the writing does not express what parties mean, and this is true even if a mutual mistake was due to an error of law in the legal meaning or effect of words employed. >,</p>

From Multnomah: George B. Bagley, Judge. Department 1. This proceeding began as an action at law, to replevy a certain motor truck which the complaint alleges had been wrongfully taken by the defendant.

<p>Judgment — Void Order aa to Amount of Recovery — Verdict—Costa —Jurisdiction.</p> <p>1. A judgment order as entered in the court’s journal, being blank as regards the amount to be recovered, is void, even as to the award of costs; the court, without a judgment on the verdict, being without jurisdiction to award a judgment for costs.</p> <p>Judgment — Entry of Judgment Order may be Corrected by New Order of Court — Statutes.</p> <p>2. While the court could amend its journal entry of a judgment order, blank as to amount of recovery, it may disregard it and, under Section 204, L. O. Xi., make a new order, entry of whieh will stand as the final adjudication.</p> <p>Appeal and Error — Void Judgment Entry is Appealable.</p> <p>3. Though judgment order as entered is void because of being blank as to amount of recovery, it is appealable.</p>

From Tillamook: George E. Bagley, Judge. Department 1. Ida Barnett, an unmarried woman, sued Florence Phelps for damages, alleging that on one occasion in the presence of Mrs. Harry Mitchell the defendant spoke of the plaintiff as a “whore,” and that on another occasion, and in the presence of George H. Benson, the defendant characterized the plaintiff as a “prostitute.” The evidence concerning the first occasion strictly conformed with the allegation; and although the…

<p>Mandamus will not Control Exercise of Discretion.</p> <p>1. Where public officers have discretionary powers as to performance of an official duty, writ of mandamus will not issue to control their discretion.</p> <p>Mandamus—Demurrer to Answer Admits Averments.</p> <p>2. A demurrer to the answer to a petition for mandarms admits the averments thereof.</p> <p>Navigable Waters—Land Board has Discretion in Leasing for Taking Gravel, and Could Reject Only Bid Made.</p> <p>3. Under Laws of 1920 (Sp. Sess.) Chapter 32, Sections 1-3, authorizing the state land board to lease the beds of navigable streams for the purpose of removing gravel, leases to be made after notice of competitive bidding, fixing tlie formalities as to tlie bids and providing that the board on leasing may fix stipulations protecting the rights of the state, the board has a discretionary power, and it may rejeet the only bid made, which was for a long time lease at a very low price, where it had given notice that any and all bids might be rejected, for to allow a lease on tjie terms would not have been advantageous to the state. ,,</p>

<p>Railroads — Violation of Speed Ordinance Negligence.</p> <p>1. Running a train in violation of a speed ordinance is negligence per se.</p> <p>Municipal Corporations — Enabling Ordinance Construed as to Vote , Permitting More Than One Reading at One Meeting; “Unanimous Vote.”</p> <p>2. General enabling ordinance, providing that “no ordinance shall pass more than two readings at any one meeting, except by unanimous vote,” held not to require a special unanimous vote to permit more than one reading at one meeting, the words “unanimous vote” having reference to the vote on the ordinance.</p> <p>Municipal Corporations — Ordinances Presumed Regularly Passed.</p> <p>3. In the absence of affirmative showing to the contrary, the necessary requirements will be presumed to have been complied with in the enactment of ordinances.</p> <p>Appeal and Error — AppeUant cannot Complain of Favorable Error.</p> <p>4. Appellant cannot complain of error in his favor.</p> <p>Appeal and Error — Remarks of Counsel, not Duly Objected to, wiU not be Considered.</p> <p>5. Remarks of Counsel will not be reviewed on appeal, where appellant did not object to court’s ruling on objection to remarks, or did not ask for a ruling thereon.</p> <p>Railroads — Rights and Duties at Public Crossing Stated.</p> <p>6. It is the duty equally of travelers and trainmen to use reasonable diligence to avoid a collision at a crossing, but the train has the right of way and the preference in passing the point of intersection.</p> <p>Railroads — Automobile Driver Held Contributorily Negligent.</p> <p>. 7. An automobile driver, who proceeded to cross the tr^ek with knowledge of approaching train and who so operated the automobile that it stalled on the track, and then made no effort to escape injury by the train held contributorily negligent.</p> <p>Railroads — Duty to Person on Track Stated.</p> <p>8. In the absence of knowledge to the contrary or some fact which ought to arouse his suspicion, motorman of eleetric train has a right to presume that one seen at a public crossing is in possession of all of his .senses, and that care for his own safety will induce him to. use them and to aet on the warnings conveyed through them.</p> <p>Railroads — Reliance on Observance of Speed Ordinance Held not Justified.</p> <p>9. An automobile driver .approaching a crossing has a right to presume that the railroad will obey a speed ordinance, but cannot rely on such presumption when she has knowledge of train approaching at a greater rate of speed than that allowed by the ordinance.</p> <p>Railroads — Last Clear Chance Doctrine Defined.</p> <p>10. Railroad is not liable for injuries to person on track under last clear chance doctrine if the negligence of such person continues down to the moment of the collision.</p> <p>Negligence — Last Clear Chance Doctrine Defined.</p> <p>11. The “last clear ehanee doctrine” applies only where defendant had actual knowledge of plaintiff’s peril in time to prevent injury by the diligent use of the means at hand.</p> <p>[As to concurrent negligence of plaintiff as defeating recovery under last clear chance doctrine, see note in Ann. Cas. 1912B, 888.]</p> <p>Negligence — Last Clear Chance Doctrine must be Pleaded.</p> <p>12. To invoke the last clear chance doctrine, plaintiff must plead it.</p> <p>Railroads — Complaint Held not to Plead Last Clear Chance Doc, trine.</p> <p>13. An automobile driver’s complaint, alleging that the trainmen saw the automobile on the track in time to have stopped before reaching it, without alleging that they were aware that the driver was in danger, or that her engine had stopped while automobile was on the track, or that there was anything in her situation indicating that she was unable to move held insufficient to invoke the last clear chance’ doctrine.</p> <p>[As to accidents to automobiles at railroad crossings, see notes in Ann Cas. 1913B, 680; Ann. Cas. 1915B, 767.]</p> <p>Railroads — Knowledge of Peril Held Question for Jury.</p> <p>14. In an action for injuries to the driver of an automobile stalled on the track, whether the trainmen had actual knowledge of the driver’s danger and her inability to extricate herself in time to avoid the injury held for jury.</p> <p>Trial — Directed Verdict Properly Refused on Sufficient Evidence not Within Pleadings.</p> <p>15. In an action for injury to an automobile driver in a collision, where the evidence was sufficient to go to the jury on the question of the railroad’s liability under the last clear chance doctrine, though it was not sufficiently pleaded, the„ denial of motion for a directed verdict was proper, since plaintiff" might be able to amend her complaint, and ought to have the opportunity to so do.</p> <p>Master and Servant — Judgment Against Employer Improper on Verdict Failing to Find Against Alleged Negligent Employee Joined as Defendant.</p> <p>Id. In an action against an electric railroad and motorman for injuries in collision based on negligence of motorman, judgment for plaintiff against railroad on verdiet against railroad, but not against motorman, will be reversed, where no judgment has been rendered for motorman, since railroad’s liability must be predicated on motorman’s negligence.</p> <p>Appeal and Error — Costs—Prevailing Party cannot Recover Costs and Disbursements Where Defeated on Appeal.</p> <p>17. Where cause must be reversed for a new trial, no notice will be taken of complaints as to cost bill of plaintiff, as in such case he is not entitled to recover costs of first trial.</p> <p>Appeal and Error — Error in Entering Judgment on Insufficient Verdict Reviewable Regardless of Motion for New Trial and Error in Refusing Amendment of Motion not Considered.</p> <p>18. Under Section 172, L.. O. L., the error in entering judgment on an, insufficient verdiet presents a question of law reviewable on appeal, where the pleadings, verdiet, and judgment upon which the question of whether court erred depends are on file in the Circuit Court, and are shown by the record, and error in refusing leave to amend motion for new trial in reference thereto is therefore negligible.</p>

<p>Negligence — Complaint Held not to Charge Willful Injury.</p> <p>1. A complaint, in an action to recover damages for negligence held to charge mere negligent injury, and not a willful, purposeful injury, although the adverb “willfully” was used.</p> <p>Collision — Owner of Wood Being Towed in Barge not Liable for Negligence of Owner of Boat Doing the Towing.</p> <p>2. One having wood hauled in a barge was not liable for negligence of employees of the owner of the boat doing the towing, having no control over such employees.</p> <p>Master and Servant — Liability for Contractor’s Negligence Defined.</p> <p>3. One employing a contractor in work involving property of the former is not liable for the negligence of the latter in the work, except where the work is inherently dangerous or liable to inflict damage upon another.</p>

<p>Deeds—Exception Void for Uncertainty.</p> <p>1. An exception of about 12 acres in a section lying south of a river is void for uncertainty, where there were more than 100 acres lying south of the river, and, the exception not being described to a certainty, the title to the whole tract plasses, the exception alone being void.</p> <p>Adverse Possession—Where Exception Void, Grantee had “Color of Title” to Entire Tract.</p> <p>2. Where an exception of part of a parcel of land conveyed was void, the grantee has color of title to the entire parcel described; “eolor of title” being that which in appearance is title but which is no title.</p> <p>Adverse Possession—Where Banks of River were Steep, They will be Treated as “Fence.”</p> <p>3. Under Section 5770, subdivision 7, I». O. L., providing that all precipices, embankments, streams, lakes, and other natural obstruction, if equally secured: against the trespass of domestic animals, shall be treated as lawful fences, a river on which the land claimed adversely abuttedffwill be treated as a lawful “fence” for the purpose of determining' whether plaintiff who inclosed the other sides fully inclosed it.</p> <p>Adverse Possession—Plaintiff Held to have Acquired Title to Land by Adverse Possession.</p> <p>4. Where plaintiff, who owned land bounded by a river and had color of title to land on the opposite side, built a bridge so as to enable his stoek to cross over and pasture on sueh land, whieh was the only use for whieh it was fit, such possession for the statutory period will ripen into an adverse title, notwithstanding that, after some years’ possession, a road was cut through plaintiff’s fenee and other stoek occasionally strayed on the land.</p>

<p>Constitutional Law—Waters and Watercourses—Franchise Contract Between City and Power Company for Installments of Hydrants not Proprietary but Rate-making.</p> <p>1. Franchise contract between city and power company, whereby the company agreed to install as many fire hydrants as should be ordered by the city, for which the city agreed to pay $1 a month each for five years, after which the company was to maintain and install hydrants ‘without cost to the city, held, a rate-making contract made by the city not exclusively in its proprietary capacity, so that the Public Service Commission could order the company on its petition to discontinue free hydrants and eharge the city $3.50 a month for eaeh hydrant without violating Article I, Section 10, of TJ. S. Constitution, prohibiting impairment of the obligations of contracts.</p> <p>[As to power of municipal corporation to make inviolable rates which state may not increase, see note in 37 A. L. R. 737.]</p> <p>ON PETITION FOR REHEARING.</p> <p>Municipal Corporations—Are “Agents” or Instrumentalities of State.</p> <p>2. Municipal corporations are “agents” of the state, not in the sense of the term “agent” as employed in the law of contracts, but in the sense of instrumentality or means devised by the state for use in local government.</p> <p>Municipal Corporations—Cannot be Compelled to Make Public Improvements at Taxpayers’ Expense.</p> <p>3. Where the Constitution denies the right to tax people of a city without their consent, or the exclusive power to tax for city purposes is lodged in the city authorities, the legislature cannot compel the establishment and maintenance of public improvements by the city.</p> <p>States—Power is Derived from the People, not from Aggregation of Munieip alities.</p> <p>4. The primary souree of governmental power is the people, not an aggregation of municipalities, and the state government derives its powers from the people, not from the municipalities.</p> <p>Pleading — Allegation That Plaintiff is City Organized Under General Laws Conclusive on Demurrer.</p> <p>5. On demurrer to a complaint by a city, an allegation of the complaint that the city was incorporated under the general laws of the state is conclusive.</p> <p>Municipal Corporations — Home Rule Amendment Does not Make Cities Independent of General Laws.</p> <p>6. The amendment to the Constitution giving home rule to cities (Article XI, Section 2) does not exempt the cities from general laws adopted by the legislative authority of the state, in conformity with Article IV, Section 1, but merely restricts the legislative power, so that it cannot enact, amend, or repeal any particular charter for any single municipality.</p> <p>Municipal Corporations — Legislature has not Surrendered to City Power to Regulate Rates of Public Utilities.</p> <p>7. The legislature has not surrendered by any act its power to regulate rates of publie utilities, and such surrender is not to be implied, in the absence of express provision.</p> <p>Public Service Commissions — Exception as to Free Service to Cities Does not Exempt Such Service from Commission’s Authority.</p> <p>8. The provision of Public Service Commission Aet, section 63, that it shall not prevent service to cities free or at reduced rates, does not require free service to cities by public utilities, or deprive the commission of power to control such service.</p> <p>Waters and Watercourses — Public Service Commission can Regulate Rates of Water Company in Home Rule City.</p> <p>9. The Publie Service Commission can regulate rates charged by a water company supplying water to a city having a home rule charter.</p> <p>Note. — This case has been appealed to the U. S. Supreme Court.</p> <p>Reporter.</p>

From Douglas: James W. Hamilton, Judge. Department 1. This is an action in ejectment. The complaint alleges that plaintiff is the owner and entitled to the possession of the west one half of the southeast quarter of section 24, township 29 south, range 4 west of Willamette Meridian, and that defendant wrongfully withholds possession thereof. The answer denies that defendant is in possession of the land.

From Multnomah: E. V. Littlefield, Judge. Department 1. In this action the H. E. Wyllie China Company, a corporation, sued to recover the price of wares sold to George M. Vinton, and, while Vinton admits that he has not paid for the wares sold to him, he counterclaims by alleging that the plaintiff had refused to deliver other wares agreed by it to be delivered, thereby damaging him in an amount greater than the unpaid price of the wares which had been delivered.

<p>Brokers—Commission cannot be Denied Because Brokers Received Commission from Purchaser.</p> <p>1. In an action by real estate brokers to recover a commission promised by a corporate stockholder if they succeeded in selling corporate lands, where the stockholder’s written offer referred to formation of a syndicate by the brokers, and it was uncontradicted that he was informed the brokers would not act unless they also received a commission from the syndicate or corporation organized, recovery cannot be denied on the ground that the brokers received compensation from the corporation organized.</p> <p>Brokers—Agreement Construed to Require Payment of Commission to Broker Only After He Effected a Sale.</p> <p>2. Agreement by large stockholder to pay broker commission for effecting sale of corporate lands held, when construed with reference to an option contract executed by the corporation only shortly before, to be conditioned upon payment in accordance with the terms of the option contract.</p> <p>Brokers—Commissions Dependent on Fulfillment of Contract Terms.</p> <p>3. Where brokers sue on a contract for commission whieh provided for payment of commissions only on payment of the full purchase price, the brokers can succeed only by showing fulfillment of those terms, regardless of any rights they might have in another form of action.</p> <p>Brokers—Acceptance of Notes for Less Than Amount Due not Payment Entitling Broker to Commission.</p> <p>4. Where a corporation which had sold land agreed to a settlement whereby it received notes from the purchaser in an amount less than the price agreed, but the corporation expressly stated that such notes should not be regarded as payment, there was no payment of the full purchase price, so as to entitle brokers to commissions payable when the price was paid.</p> <p>Brokers—Not Entitled to Commissions from Stockholder for Selling Corporate Lands, Payment not Having Been Made as Provided in Contract.</p> <p>5. W'here a large stockholder agreed to pay brokers a commission if they sold corporate lands and the brokers' transferred an .option for purchase of such lands to a corporation which they organized, but the full price was not paid within the time stipulated, the purchasing corporation giving notes for an amount less than that due, which notes were accepted in settlement but not as payment, held that, notwithstanding the guardian of the stockholder who had since become incompetent represented the vendor corporation in the settlement, there was no such consummation of the contract as would entitle the brokers to recover commissions.</p> <p>ON PETITION POP REHEARING.</p> <p>Appeal and Error — Exhibit Attached to Bill of Exceptions Considered, Where Respondents Invited Attention Thereto.</p> <p>6. Respondents, on petition for rehearing, drawing attention to option which was one of the papers physically attached to the bill of exceptions, designated by the reporter’s stamp as plaintiffs’ exhibits, and used by both parties in the original argument, the court will on such invitation consider it as if regularly and properly before the court as part of the record on appeal.</p> <p>Vendor and Purchaser — Option Becomes Mutually Binding Only on Terms of Offer Being Accepted.</p> <p>7. An option to buy binds only the optioner to leave the offer open for the specified time, and does not become a mutually binding contract till the one to whom it is given accepts the offer according to its terms.</p> <p>Brokers — -In Absence of Other Agreement, Payment must be in Cash and at Stipulated Times.</p> <p>8. Agreement of one to pay a broker a commission, if a sale of another’s land was made and the price paid as provided in an option, requires the price to be paid in cash, the option not pro viding otherwise, and at the times stipulated.</p> <p>Pleading — A Reply Held a Departure.</p> <p>9. The complaint alleging full performance of a contract, on the performance of which according to its terms defendant by another agreement contracted to make the payment for which the action was brought, a reply relying on a waiver and extension of time on the prior contract was a departure.</p>

From Marion: George G. Bingham, Judge. Department 1. The plaintiffs claim that they are now and for forty-three years last past have been the owners in fee simple of a tract of land in Marion County, and have been in the open, notorious, exclusive, and adverse possession of said premises for forty-three years next prior to the commencement of this suit; that the defendant claims some right, title and estate in the property, which claim is without right, and that she has no…

<p>Life Estates — Life Tenant, Manager of Residuary Estate, can Contract for Possession and Improvement.</p> <p>1. Under a will giving testator’s wife Ms residence for life, and the use and control for her life of the residue of Ms estate, both real and personal, with the right to expend so much thereof as she needed for her personal support and the proper care of the estate, but not to permanently dispose of or give away any part of the residue, and appointing her exeeutrix, she might contract with another to take possession of a part of the land, plant an orchard, and improve it, at a monthly salary, all at the expense of the estate.</p> <p>Descent and Distribution — Absent Collusion, Only Personal Representative may Sue to Recover Property of Estate.</p> <p>2. As a general rule, only the executor or administrator can sue to recover property belonging to Ms decedent’s estate, and title to such property accruing to an heir must come through the personal representative, unless he acts in collusion with a debtor to the estate, and refuses to compel the liquidation of the debt, in which case the heir may join them both, and compel the collection of the debts for the benefit of the estate, to be administered by the proper representative of the decedent.</p> <p>Praud — Pleading by Devisees Held Insufficient to Charge Praud by Codevisee.</p> <p>3. A complaint in a suit between devisees, alleging that defendant, in possession of lands under contract with the life tenant, appointed executrix, fraudulently represented to plaintiffs that money was required in planting an orchard, and induced them to execute notes to a bank, the proceeds of which went into the hands of defendant, who had not accounted for them, but not alleging in what respect the representations were false, or that plaintiffs had been compelled to pay the notes, was demurrable.</p> <p>Praud — Pleading Required.</p> <p>4. To be a good pleading of fraud, the representations claimed to be false must be stated, and the truth must be averred, and it must appear that the party making them knew that they were false, and intended to perpetrate a fraud, and that they were relied on.</p>

From Yamhill: Harry H. Belt, Judge. Department 1. This was an action to recover' attorneys’ fees. The complaint alleged that in January, 1918* the defendants employed plaintiffs to represent them, as heirs at law of Thomas A. Barlow, deceased, in matters arising in the administration of the estate of said decedent, and more particularly in a dispute then existing between defendants and their former attorney.

<p>Criminal Law — Bystanders, Making BUI of Exceptions, must be Certified to be Disinterested.</p> <p>1. A bill of exceptions on affidavits as to disputed occurrences by bystanders, who by provision of Section 170, L. O. L., must be certified by the clerk to be respectable and disinterested, cannot be considered; the affidavit being merely that the persons are reputable.</p>

From Lake: L. F. Conn, Judge. In Banc. Bobert Zullig, the defendant, was indicted by the grand jury of Lake County, Oregon, for murder in the second degree. He was charged by the indictment with the shooting of his wife, Emma Zullig, in the northern part of Lake County on October 11, 1918. The defendant and his wife lived in an isolated part of the county, where the settlement was sparse, and there were no neighbors closer than several miles away.

<p>Municipal Corporations — Charter—Amendments—Held not to Supersede Existing Charter.</p> <p>1. Amendments of May 7, 1917, to Charter of the City of Silverton, under Article II, Section 2, of the Constitution, and Article IV, Section la, by adding thereto Sections 135-138, held to merely supplement and not take the place of the then existing charter, notwithstanding Article IV, Section 22, of the Constitution, requiring that the revised act or amended sections shall be set forth and published at length, such constitutional provision having no application where the legislation merely adds new sections to an existing act without modifying or altering the original aet.</p> <p>Statutes — Amendments — Constitutional Provision Inapplicable— Adding New Sections.</p> <p>2. Article IV, Section 22, of the Constitution, providing that the act revised or sections amended shall be set forth and published at length, and not merely by reference to title, does not apply where the legislation merely adds new sections to an existing act without modifying or altering the original act.</p> <p>Municipal Corporations — Statutes—Jurisdictional Requirements.</p> <p>3. Statutes conferring power upon cities and towns must provide for all jurisdictional requirements compelled by the Constitution, but may, if the legislature chooses,- add to such jurisdictional requirements, though legislature is not required to do so.</p> <p>Municipal Corporations — Exercising Given Power — Jurisdictional Requirements must be Complied With.</p> <p>4. A eity or town in exercising a given power must heed every jurisdictional requirement regardless of whether it is purely statutory or required by the Constitution.</p> <p>Municipal Corporations — Ordinances — Assessment — J urisdictional Requirements — Failure to Observe.</p> <p>5. Failure to observe a jurisdictional requirement, whether organic or statutory, will usually defeat an ordinance requiring an improvement and invalidate an ordinance for an assessment.</p> <p>Municipal Corporations — Special Improvements — Statutes—Constitutional Right of Owner to be Heard.</p> <p>6. Statute providing for special improvements must entitle owners to be heard at some stage of the proceedings, the owners’ right to be heard being a constitutional right.</p> <p>Municipal Corporations — Improvements—Right to Remonstrate — Only Created by Statute.</p> <p>7. The right to file an operative and self-executing remonstrance against improvements exists only where the statute creates the right.</p> <p>Municipal Corporations — Improvements —Remonstrance—Mistake-Jurisdiction.</p> <p>8. That eity council, when passing upon remonstrance to special improvements by abutting owners under Charter of City of Silver-ton, Section 71 (as in force in 1914), held a sufficient remonstrance insufficient because of a mistake in construction of charter provisions as to sufficiency of remonstrance, did not affeet the sufficiency of the remonstrance to oust the council’s jurisdiction to make the improvement.</p> <p>Taxation — Attribute of Sovereignty.</p> <p>9. The power to tax is an attribute of sovereignty. '</p> <p>Municipal Corporations — Special Assessment — Power of Taxation.</p> <p>10. The power to levy a sp'ecial assessment, though it is to be differentiated from a pure tax, is a branch of the power of taxation, and when exercised is a -manifestation of sovereignty.</p> <p>Constitutional Law — Special Improvement — Remonstrance — Special Assessments. .</p> <p>11. The filing of an operative and self-executing remonstrance to construction of a special improvement by abutting owners under City of Silverton Charter, .Section 71 (as in force in 1914), conferring on abutting owners the right to file such a remonstrance, would not result in a contract with attending contractual rights and obligations, the fundamental doctrines of special assessments not being based upon the principles of contract.</p> <p>Municipal Corporations — -When Legislature may Reassess and Cure Defects.</p> <p>12. The legislature may ratify and cure, through reassessment, that which might have been constitutionally and lawfully author, ized in the first instance, but cannot validate retrospectively what it could not have originally authorized, the power to validate a tax or assessment rendered invalid by errors or omissions being an essential attribute of the sovereign power of taxation.</p> <p>Constitutional Law — Remonstrance—Not to Preclude Reassessment— Due Process of Law.</p> <p>13. Reassessment proceedings under Charter of City of Silverton, Sections 135-138, made necessary because of invalidity of original assessment for eity council’s lack of jurisdiction to proceed with the improvement owing to sufficient remonstrance thereto by abutting owners under Section 71, held not unconstitutional on the theory that it is the taking of property without due process of law, since the legislature, in prescribing the procedure with reference to the construction of such improvement, was not required to have included the provision making a remonstrance a bar to further proceedings, and therefore the city, under the home-rule amendments, by its legislative power could 'amend the law so as to make the proceedings valid notwithstanding such remonstrance.</p> <p>Statutes — Construction.</p> <p>14. Laws will not be interpreted to be retrospective unless by their terms they are clearly intended to be so.</p> <p>Municipal Corporations — Charter — Amendments Providing for Reassessment — Construction.</p> <p>15. Amendments of 1917 to City of Silverton charter, enacted by adding Sections 135-138 thereto, providing for reassessment where assessment for special improvement “which has heretofore or which may hereafter he made,” construed to operate retrospectively and to affect invalid assessment levied prior to the amendment.</p>

Erom Jefferson: T. E. J. Duffy, Judge. In Banc. This action was before this court in Burdick v. Tum-A-Lum Lumber Co., 91 Or.'417 (179 Pae. 245). On August 1,1917, the defendant filed its transcript on appeal in the case. That document included the typewritten transcript of the testimony taken upon the trial of the cause and filed with the county clerk, which was made by the official reporter. The defendant paid the reporter therefor the sum of $157.65.

From Lane: George F. Skipworth, Judge. Department 2. Plaintiff, a minor, brings this action by his guardian to recover $125, paid by him upon the purchase price of a certain motorcycle purchased from the defendants.

From Multnomah: Eobert Tucker, Judge. Department 2. This is a suit brought by the plaintiffs, as heirs of one Henry Ploch, to have the defendants declared to be trustees of certain lots situated in the City of Portland, Oregon, which it is claimed were part of a donation land claim settled upon by the said Henry Ploch in 1852.

From Multnomah: George W. Stapleton, Judge. Department 2.- This cause grows out of a trade of farms alleged to have been made between plaintiff and defendants. It is alleged: ' That plaintiff was the owner of a farm in Marion County; that the defendants claimed to own a farm in Wasco County, and that a trade was arranged, the one for the other.

From Multnomah: Robert Gr. Morrow, Judge. In Bane. This is a suit to enjoin the collection from the plaintiff of a tax based upon an assessment of merchandise and stock in trade in the City of Portland valued at $10,000, on the ground that the plaintiff does not own the property assessed, and that the assessment is void because made without any authority. The plaintiff was formerly a merchant dealing in furs.

From Multnomah: William N. Gatees, Judge. Department 1. 1. The plaintiff hired to the defendants some horses and their equipment, which is admitted.

From Coos*. John S. Coke, Judge.- Department 2. This is a' suit for divorce.

<p>Appeal and Error — Insufficiency of Evidence not Reviewable, in Absence of Bill of Exceptions Certified to.</p> <p>1. In the absence of bill of exceptions, certified by -the trial court, the supreme court cannot review the action of the trial court, based on the insufficiency of the evidence.</p> <p>Appeal and Error — Transcript, When Certified by Court, will Bring Up Rulings Below.</p> <p>2. Under Laws of 1913, page 650, transcript of testimony will be carried bodily into the bill of exceptions, if properly certified to as such by the trial court, and will then be sufficient to bring up the rulings below as set forth therein, but is not a bill of exceptions, and is without efficacy to bring up the trial proceedings until certified to by the court, though certified by the reporter.</p>

From Marion: George' G. Bingham, Judge. Department 2. At the times alleged in the complaint the defendant Taylor was the owner and operator of a portable sawmill on the banks of a tributary of Silver Creek, east of Silverton in Marion County.

From Multnomah: George W. Stapleton, Judge. Department 1. On March 17, 1919, Vincent F. Wellner filed a petition in the Circuit Court for Multnomah County for a writ of habeas corpus, wherein he sought to obtain the custody of his minor son, Burton Donald Wellner, who was then in the custody of his maternal grandparents, John C. Larson and Julia Larson. On the same day the Larsons filed their complaint in equity, asking that they be awarded the custody of the child.

Original proceedings in mandamus in' Supreme Court. On motion of defendant to dismiss. Department 2. The relators present a petition for a writ of mandamus, and allege, in substance, the following facts: Petitioner George H. Kelly is the owner of the legal title to lots 1, 2, and 3 in block 4, Johnson’s Addition to the City of Portland.

<p>Agriculture — Dairy Corporation Held no.t Entitled to Apportion Losses as Against Contract Allowing it to 'Charge Commissions for Collections.</p> <p>1. Where a dairyman has contracted with a dairymen’s league, of whieh he was a stockholder, to ship milk to certain consignees and to allow the league to collect the proceeds for a certain commission, and the articles of incorporation and by-laws of the league do not give the authority to apportion gains and losses among the several stockholders because of the refusal of a large consumer to accept shipments, action will lie by the stockholder to recover amounts collected by the league on his shipments less commissions, notwithstanding a purported agreement among stockholders generally to apportion losses.</p> <p>Setoff and Counterclaim — Cause of Action not Existing at Commencement of Suit not Subject of Counterclaim.</p> <p>2. In a dairyman’s aetion against a dairymen’s league, in which he was a stockholder, to recover money coHected by it under an agreement, the corporation could not counterclaim on the ground that the stockholders had agreed to apportion losses because of refusal of a large consumer to accept shipments, under .Section 74, L. O, L, as amended by Laws of 1915, page 24; the eause of aetion set up under the counterclaim not existing at the time suit was commenced.</p> <p>Agriculture — Evidence Insufficient - to Sustain Finding That Stockholder of Dairymen’s League was Present at Meeting and Voted.</p> <p>3. In a dairyman’s action against a dairymen’s league, of which he was a stockholder, to recover money collected on shipments under contract, evidence held not to sustain a defense that plaintiff was present at a stockholders’ meeting and voted for apportionment of losses.</p> <p>Agriculture — Notice of Stockholders’ Meeting of Dairy Corporation Held Insufficient to Charge Stockholder With Actions Taken Therein.</p> <p>4. A notice of the stockholders’ meeting of dairymen’s league held not sufficiently definite to charge a stockholder with aetion taken at such meeting to apportion losses occasioned by the refusal of a large consumer to accept shipments, Where he was not present and affirmatively participated therein.</p>

From Multnomah: William N. Gtatens, Judge. Department 2. Plaintiff brought this action for damages for personal injuries. The cause was tried to the court and jury, and a verdict in the sum of $7,000 was rendered in favor of plaintiff. From a judgment thereon, defendant appeals. Plaintiff was employed by the defendant company as a laborer in a material-yard. He was a steamfitter by trade.

<p>Marriage—Evidence Held not to Show Duress to Procure.</p> <p>1. Evidence held insufficient to show that defendant exereised any duress on plaintiff wife, suing to annul the marriage, to compel her to marry Mm.</p>

From Multnomah: Robert Tucker, Judge. Department 1. This is an action for the recovery of damages for personal injuries. The complaint alleges negligence upon the part of the defendant in three particulars: (a) Failure to keep a proper lookout; (b) failure to have the car under control; (c) failure to sound an alarm. The answer denies the allegations of. negligence, and pleads contributory negligence on the part of the plaintiff.

<p>ON PETITION FOR REHEARING.</p> <p>Municipal Corporations — Proceedings for Reassessment Held Instituted WitMn Ten Years.</p> <p>1. Proceedings for reassessment instituted December 23, 1914, ordinance declaring the reassessment being passed Mareh 31, 1915, were instituted within the ten years of limitation from August 15, 1906, when resolution of intention for making the original improvement was passed, and the proceedings started prescribed by Charter of City of Portland, Section 400.</p> <p>Certiorari — Writ Allowed Where Court Officer or Tribunal Has Erred or Exceeded Jurisdiction.</p> <p>2. Under Section 605, L. O. L., a writ of review is allowed where an inferior court officer or tribunal has exercised judicial functions erroneously, or has exceeded 'his or its jurisdiction to the injury of some substantial right o£ plaintiff and not otherwise.</p> <p>Municipal Corporations — Proceedings Required Prior to Original Assessment not Required Again on Reassessment.</p> <p>3. Under Charter of City of Portland, Section 400, in its provision for reassessment for an improvement, particularly in view of Section 401, if the city council does not attempt a different plan of apportionment of benefits, the former proceedings required to be taken prior to the original assessment are not required to be taken again within the intent of the section, though the council is authorized to take such proceedings when necessary to correct former errors.</p>

<p>Insurance—Member of Mutual Fire Association Held not Liable to Assessment.</p> <p>1. Wliere neither by-laws of, nor insurance policy issued by, mutual fire insurance association, organized under Sections 4649-4672, L. O. L., prior to amendment contained in Laws of 1917, page 312, authorized levying of assessment on policy-holder for purpose of meeting losses, but limited mutual contingent liability of each member to one annual premium charged by standard insurance companies upon the same property, and provided for pro rata share of funds to insured, suffering loss on insufficiency of reserve fund to meet all losses, policy-holder was not liable to assessment for purpose of meeting losses, under Laws of 1911, pages 279, 406.</p> <p>Insurance—Member of Mutual Fire Insurance Association not Liable to. Assessment in Absence of Contract.</p> <p>2. A member of a mutual fire insurance association, in order to become liable to assessments, must contract to pay such assessments, or assent to some plan or provision for levying assessments, required by the by-laws or constitution of the association, or by the statute authorizing its organization.</p> <p>[On validity of assessment on insurance policy to pay anticipated or future losses, see note in Ann. Cas. 19140, 802.]</p> <p>[On liability of members of mutual fire insurance company to assessment, see note in 32 L. E. A. 496.]</p> <p>Insurance—Prior to. Statute Mutual Fire Association Could Exempt from Assessment Policy-holder Paying Cash Premium.</p> <p>3. Mutual fire insurance association, prior to Laws of 1917, page 312, could provide that on payment of cash premium the policy, should be exempt from assessment to pay losses occurring during period for which t'he premium was paid.</p>

<p>Execution — Failure of Sheriff’s Return to Show Levy Does not Invalidate Sale After Confirmation.</p> <p>1. Failure of the sheriff’s return of sale on execution to show levy on the property is insufficient to invalidate the sale after execution, confirmation curing irregularities between judgment and sale.</p> <p>Execution — Failure to Levy on Property Does not Avoid Sale.</p> <p>2. Failure to levy on the judgment debtor’s property is not in any event such an omission as will avoid sale on execution.</p> <p>[On grounds of collateral attack on judicial sale, see note in 1 A. L. R. 1431.]</p> <p>Justices of the Peace — No Presumptions Favor Jurisdiction.</p> <p>3. There are no presumptions in favor of the jurisdiction of courts of special and limited jurisdiction, as courts of justices of the peace.</p> <p>Justices of the Peace — Judgment Should be Upheld if Record Shows Requirements of Statute Complied With.</p> <p>4. If on fair examination of the reeord supporting a judgment in Justice’s Court it appears that the requirements of the statute have been complied with, no matter how inartificially the fact has been made to appear, the judgment should be upheld.</p> <p>Justices of the Peace — Record Held to Show Summons Issued and Given Constable was That Served.</p> <p>5. Record supporting judgment in Justice’s Court held to show with eommon certainty that the summons, issued December 11, 1912, which came into the hands of the constable the same day, and the summons served February 20, 1913, were one and the same.</p> <p>Justices of the Peace — Issuance and Service of Second Summons Did not Vitiate Judgment Against Defendant Who Made Default.</p> <p>6. If summons issued from Justice’s Court December 11, 1912, and was placed in the hands of the constable for service the same day, but was not served, another summons being served February 20, 1913, after which defendant made default, the issuance and service of the second summons did not vitiate the judgment.</p> <p>Justices of the Peace — Entry of Service of Summons Conformed to Code Form.</p> <p>7. Entry in regard to service of summons in reeord supporting justice’s judgment held to have substantially conformed with the form set out in L. O. L., Volume 1, page 1052, -which, though not strictly part of the Code, has been approved by the compiler.</p> <p>Justice of the Peace — -Default Judgment Held Valid, Though Returns of Service not Entered.</p> <p>8. Though Section 2415, L. O. L., requires that the justice shall enter in his docket the date of issuance and- return of summons, the provision is not so drastic as to render void a judgment wherein it appears that a summons issued and was served such a length of time before the judgment as to justify entry of default in ease of failure to appear.</p> <p>Justices of the P.eace — Docket Entry Sufficient to Show Jurisdiction to Enter Default.</p> <p>9. Doeket entries supporting judgment of justice, though not drawn with skill and clearness which would characterize work of a skillful lawyer taken as a whole, held sufficient to show jurisdiction in a Justice’s Court to enter default judgment.</p>

<p>Appeal and Error — Affidavit of Mailing Notice of Appeal to District Attorney Held Insufficient.</p> <p>1. An affidavit of service of notice of appeal, which merely stated that the notice was mailed to the district ¡attorney, with postage prepaid, properly addressed, without stating the district attorney’s residence, where the notice was mailed, or whether the facts permitted service by mail, is insufficient proof of service.</p> <p>Appeal and Error- — -Notice of Appeal cannot be Served by Party.</p> <p>2. Proof of service of a notice of -appeal, made by one who was a party to the action, is expressly prohibited by Section 539, L. O. L., and is invalid.</p> <p>Appeal and Error — Proper Service of Notice is Jurisdictional.</p> <p>3. Proper service of the notice of appeal is essential to the jurisdiction on appeal.</p> <p>[As to parties entitled to notice of appeal, see note in 21 Ann. Cas. 1277.}</p> <p>Divorce — District Attorney must be Served With Notice of Appeal in Divorce Case Where Defendant Defaulted.</p> <p>4. Under Section 1020, L. O. L., as amended by Laws of 1911, •page 126, requiring the district attorney to defend against a divoree suit, where the defendant does not appear therein, notiee of appeal by plaintiff from a decree dismissing his suit for divorce, in which the defendant did not appear, must be served on the district attorney, though such service would be unnecessary if the defendant 'had appeared and contested the suit in good faith.</p> <p>Appeal and Error — Appeal is Statutory Bight, and Requirements must be Followed.</p> <p>5. The right of appeal is a strictly statutory right, and the re quirements of the statute must be strictly followed under Section 550, L. O. L., providing that an appeal shall be taken and perfected in the manner therein prescribed, and not otherwise.</p>

From Multnomah: Robert Tucker, Judge. In Banc. This is a proceeding by David Brown and others .for a writ of review to examine and cancel a reassessment made by Ordinance No. 30,287 for the improvement of Albina Avenue, from Page Street to River Street, in the City of Portland. The Circuit Court held that the proceedings making the reassessment were regular and dismissed the writ. Plaintiffs appeal.

<p>From Multnomah: Roberi Tucker, Judge.</p> <p>In Banc.</p> <p>Proceeding by George H. Cook and others for a writ of review directed to the City of Portland and another. From a judgment dismissing the writ the plaintiffs appeal.</p>

From Lane: George F. Skipworth, Judge. Department 2. On October 26, 1917, tbe plaintiffs were the owners of a sawmill on Poodle Creek, near Noti, in Lane County. They were experienced in that line of business, but were without money to purchase sawlogs or operate the mill. The defendants were in the timber and tie business, but were not engaged in the manufacture of lumber. They had sufficient funds to supply the mill with logs and to finance its operation.

From Multnomah: Calvin IT. Gantenbein, Judge. Department 1. Clara Hamilton, the plaintiff, traveled by railroad from Sheridan, Wyoming, to Portland, Oregon. Her husband was in the United States Army. Whenever he was transferred from one post to another, she moved with him. Because of one of such transfers from the east to the west she came to Portland.

From Clatsop: James A. Eakin, Judge. In Bane. This is an action for the recovery of the purchase price of goods, wares and merchandise which plaintiff alleges he sold and delivered to defendant at its special instance and request.

<p>Physicians and Surgeons — Reputation for Care-Inadmissible on Issue of Negligence.</p> <p>1. In an action where negligence on the part of a dentist is charged, evidence as to his reputation for care is inadmissible.</p> <p>Trial — Refusal of Instruction Harmless in View of Instruction Given.</p> <p>2. In an action for dental malpraetiee where the jury were charged that the only negligence for whieh defendant could be liable was that alleged and that it was essential to recovery that such negligence be the proximate cause, etc., the refusal of a requested instruction that, where there were two or more possible causes of the condition from whieh plaintiff suffered, plaintiff, to recover, must show that the injury was the result of that cause whieh would render defendant liable, was harmless.</p> <p>Physicians and Surgeons — Malpractice Held for Jury.</p> <p>3. In sp. action for dental malpraetiee, the question whether defendant Was negligent in extracting and treating a tooth so as to become responsible for an infection held - properly submitted to jury.</p> <p>[Por authorities on the duty and liability of dentist to patient, see note in Ann. Cas. 1914A, 273.]</p>

<p>Deeds — Deed, With Grantee’s Name Left Blank, Conveys No Title.</p> <p>1. A deed executed, but with the name of the grantee left blank, conveys no title while in that condition.</p> <p>Deeds — Blank Deed, When Authorizedly Filled in, Passes Title.</p> <p>2. Where one delivers possession of deed, with name of grantee left blank, to another, with oral authority to fill in the blank with the name of a prospective purchaser, and such blank is so filled in and delivered in pursuance of such authority, the deed will pass the title.</p> <p>[On the question of validity of deed to blank grantee, see notes in Ann, Cas. 1912A, 538; Ann. Cas. 1914D, 399,]</p> <p>Estoppel — Innocent Person, Making Injury Possible, must Suffer.</p> <p>3. Where one of two persons must suffer by reason of the wrongful act of a third, the person whose act or omission made the injury possible should suffer.</p> <p>Mortgages — Owner Delivering Deed to Broker, Who Filled in Own Name, must Suffer, Bather Than Subsequent Mortgagee.</p> <p>4. Where owner of land negligently delivered deed to broker with authority to fill in name of prospective purchaser as grantee, and where broker filled in own name and recorded deed and executed mortgage thereon to innocent third person, the owner, having put it in the power of his agent to defraud, must suffer the loss.</p> <p>Mortgages — Possession of Land by Owner’s Tenants Held not Notice That Land was not Owned by Mortgagor.</p> <p>5. Possession of land by owner’s tenants was not notiee to mortgagee that mortgagor who had fraudulently filled in and recorded blank deed given him by owner for prospective purchaser was not in fact such purchaser, and did not put mortgagee on inquiry with regard thereto where owner had told tenants that he had sold the property and to pay rent to new purchaser.</p> <p>Vendor and Purchaser — Possession by Another Than One CJaimin¿ Title Often Sufficient to Put Purchaser on Inquiry.</p> <p>6. ' The possession of land by one other than the person /claiming title is a fact sufficient, in many instances, to put the intending purchaser upon inquiry as to the nature and extent of such possession.</p>

From Marion: George G. Bingham, Judge. Department 1. This is a suit to foreclose a mortgage on a leasehold estate and a crop of hops. William Uhlmann, William J. Wannamaker, Ferdinand Goebel, and J. W. Kanfmann are partners doing business under the firm name of S. & F. Uhlmann. The partners reside in the City of New York, and their principal place of business is in that city, although the firm has for a long time transacted business in Oregon.