Volume 98 — Oregon Reports

<p>Public Lands — Railroad Liable for Price Per Acre Paid to United States to “Confirm” Title.</p> <p>1. In view of the Innocent Purchasers’ Act (Act Cong. Aug. 20, 1912), plaintiffs, who, in good faith purchased land from a railroad company in violation of the grant of the land to the road from the United States, providing it should be sold only to actual settlers, in quantities of not more than quarter-sections, for not more than $2.50 an aere, held entitled to recover from the railroad whose title was defeated by the United States the amount of $2.50 an acre paid by them to the United States to perfect or “confirm” their title, which means to make firm or firmer, to establish or strengthen, to ratify, etc.</p>

<p>Public Lands — Railroad Liable for Price Per Acre Paid to United States to Perfect Title — “Void.”</p> <p>1. In view of the Chamberlain-Ferris Aet of June 9, 1916, a lumber company, which in good faith purchased some 19,000 acres of land from a railroad company, in violation of the grant of the land to the road from the United States, providing that it should be sold only to actual settlers in quantities not greater than quarter-sections, and for not more than $2.50 an aere, held entitled to recover from the railroad, whose title was defeated by the United States, the amount of $2.50 an acre paid by it to the United States to perfect its title, but not the total illegal price paid by it to the road, the contract between'it and the road not having been “void”; that is, a mere nullity.</p> <p>For the meaning of the word “void,” see note in 5 A. L. R. 1518.</p>

<p>Criminal Law — Admission of Evidence of Experiments or Demonstrations Discretionary.</p> <p>1. Admission of evidence of experiments or demonstrations is discretionary with trial court; but when it appears that the experiment or demonstration has been made under conditions similar to those existing in the case in issue, its discretion ought not to be interfered with.</p> <p>On right of defendant in homicide ease to introduce evidence of his good character, see notes in 103 Am. St. Kep. 891; 11 Ann. Cas. 1189.</p> <p>On extent to which cross-examination is permissible to show hostility or ill will of witness, see note in Ann. Cas. 1911B, 537.</p> <p>On general" and common-law rules as to admission of evidence in action for homicide in the commission of felonies, see note in 63 L. E. A. 351.</p> <p>Authorities discussing the question of general rule as to admissibility of evidence of character for peacefulness and quiet of deceased in action for homicide are collated in notes in 1 Ann. Cas. 338; 11 Ann. Cas. 229; 3 L. E, A. (N. S.) 368.</p> <p>On admissibility of previous statements by a witness out of court consistent with his testimony, see note in 11 L. R. A. (N. S.) 857.</p> <p>Criminal Law — Admission of Evidence as to Experiments Held not an Abuse of Discretion.</p> <p>2. In homicide prosecution, admission of evidence as to experiments in tracing footprints, and in discharging rifle with certain kind of cartridge, to ascertain whether smoke could be seen from the discharge, where experiments were made under same conditions as existed on day of killing, held not an abuse of discretion.</p> <p>Homicide — Testimony of Conversation of Deceased With Defendant’s Employee Held Inadmissible.</p> <p>3. In homicide prosecution, testimony by an employee of deceased as to a conversation between deceased and an employee of defendants relating to negotiations about employment of defendant’s employee by deceased, held inadmissible.</p> <p>Homicide — Testimony as to Ownership of Land on Which Homicide Took Place Held Inadmissible.</p> <p>4. In prosecution for homicide, committed following a dispute as to the right to use land for grazing purposes, testimony of an abstractor as to ownership of lands by one of the defendants held inadmissible, particularly in view of concession by state that land was owned by one of the defendants.</p> <p>Homicide — That Deceased Became Angry on Day Previous to Killing, Because of Inability to Lease Land, Inadmissible.</p> <p>5. In prosecution for homieide, committed following a dispute as to use of land for grazing purposes, testimony as to appearance of anger on part of deceased on the day previous to the homicide; when he learned that he would be unable to lease land because of owner having sold it, held inadmissible.</p> <p>Witnesses — Impeachment must be According to Statutory Method.</p> <p>6. Under Sections 863, 864, L. O. 'L., a party to impeach the testimony of an adverse witness, must pursue the statutory method.</p> <p>Criminal Law — Declarations of Deceased’s Employee not Binding on Deceased.</p> <p>7. In homicide prosecution, declarations by employee of deceased as to what deceased was going to do eould not bind the deceased.</p> <p>Witnesses — Inconsistent Statements,Used for Impeachment, must ' Kelate to Testimony of the Witness.</p> <p>8. Before a witness can be impeached, under Section 864, L. O. L., there must appear in his evidence something inconsistent with the statement said to have been made by him at some other time and place, and he cannot be impeaehed on some utterance not thus relating to his testimony.</p> <p>Witnesses — Cross-examination may Show Hostility of Witness.</p> <p>9. Under Section 704, L. O. L., it is competent on cross-examination to ascertain the mental attitude of a witness toward the defendant, whether of enmity, hostility or prejudice, and he may be asked if, at other times, specifying time, place and persons present, and the particular language used, he has not made statements- indicative of hostility towards the party against whom he has been called as a witness.</p> <p>Criminal Law — Cross-examination to Impeach by Inconsistent Statements cannot be Justified, on Ground That it Shows Bias and Prejudice.</p> <p>10. When counsel informs court that he is proceeding to impeach the witness by inconsistent statements, he must adhere to that theory, and cannot justify examination on the ground that it is proper cross-examination for purpose of showing bias or prejudice, as a party cannot mislead the court and invite error.</p> <p>Homicide — Turning of Bucks into Flock of Sheep not a Felony, Justifying Homicide.</p> <p>11. In prosecution for homicide, committed after dispute as to use of land for grazing purposes, testimony as to the effect of turning a band of bucks into defendants’ flock of sheep held inadmissible, since, even if deceased had been in the act of so doing, it would not have been a felony on defendant’s property, justifying homicide.</p> <p>Witnesses — Redirect Examination of Character Witnesses as to Defendant’s Violation of Law Held Proper.</p> <p>12. In homicide prosecution, where witnesses for state had testified as to the bad reputation of one of the defendants, and on cross-examination had admitted that the basis of their estimate of his reputation was some trouble he had had, redirect examination by state, eliciting that the trouble referred to involved a violation of law, held proper, having been brought on by defendants’ cross-examination.</p> <p>Homicide — Evidence as to Deceased’s Reputation Held Competent.</p> <p>13. In homicide prosecution, evidence that deceased’s general reputation was that of a peaceable, law-abiding citizen held, competent, to refute assertion that he was about to commit a lawless act at the time of the killing.</p> <p>Criminal Law — Evidence of a Conversation Five Days Before Killing Held not Admissible as Res Gestae.</p> <p>14. In prosecution for homicide committed as the result of a dispute in regard to the use of land for grazing, evidence as to a conversation between an employee of the deceased and a brother of one of the defendants five days before the killing held not admissible as a part of the res gestae.</p> <p>Criminal Law — Instruction on Circumstantial Evidence Improper, Where Direct Evidence of Corpus Delicti.</p> <p>15. If there is any direct testimony respecting the corpus delicti, an instruction on circumstantial evidence is properly refused.</p> <p>Criminal Law — Instructions to be Directed to All of Legitimate Testimony.</p> <p>16. The court is required to frame its instructions, so that the attention of the jury shall be directed to all of the legitimate testimony, not excluding any particular part.</p> <p>Homicide — Instructions on Apparent Danger Held, Favorable to Defendants.</p> <p>17. In homicide prosecution, defended on ground of self-defense, instructions on apparent danger held favofable to defendant.</p> <p>Homicide — Apparent Danger must be Considered from the Standpoint of a Reasonable Man.</p> <p>18. The question of apparent danger must be considered from the standpoint of a reasonable man in the plight of the defendants at the time of the killing, under all the conditions then surrounding the parties as .disclosed by the testimony.</p> <p>Homicidei — -Instruction Requiring Apparent Danger to be Absolutely Established Held not Objectionable.</p> <p>19. In homicide prosecution, instruction that apparent danger must be danger so urgent that the killing is “absolutely or apparently absolutely, necessary,” held not objectionable as against contention that it required the danger to be mathematically established.</p> <p>Indictment and Information — Facts to be Alleged in Direct Language Without Uncertainty.</p> <p>20. Facts constituting the offense must be alleged in direct and positive language, without equivocation or uncertainty.</p> <p>Criminal Law — Evidence Required to Prove Charge Merely Beyond Reasonable Doubt.</p> <p>21. The evidence for the prosecution need not go further than to convince the jury beyond a reasonable doubt, to a moral certainty/ of the truth of the charge.</p> <p>Homicide — Defendant, Claiming Self-defense, Required Merely to Raise a Reasonable Doubt.</p> <p>„ 22. In prosecution for homieide, where defense was that there was either actual or absolute danger, or the reasonable appearance of such danger against which defendant acted in self-defense, he was not required to prove such defense to a mathematical- certainty, but merely to raise a reasonable doubt of his guilt in the minds of the jurors.</p> <p>Homicide — Ho Accessory Before Fact in Case of Manslaughter Committed in Heat of Passion.</p> <p>23. There can be no accessory before the fact in a ease of manslaughter by one acting on a sudden heat of passion, though more than one person may be actuated at the same time by a sudden heat of passion caused by a provocation applicable to all of them, apparently sufficient to make the passion irresistible, so that both will be guilty of manslaughter.</p> <p>Homicide — Evidence Sufficient to Sustain Conviction of Two Defendants for Manslaughter.</p> <p>24. In homieide prosecution, held, on appeal from conviction of two defendants for manslaughter, that the evidence was sufficient to warrant jury in concluding that both defendants had been actuated by a sudden heat of passion and had fired at deceased at the same time.</p> <p>Homicide — Instruction on Justifiable Homicide Held Proper.</p> <p>25. In prosecution for homicide, committed as the result of a dispute concerning use of land for grazing of sheep, the giving of an instruction that homicide is justifiable when committed to prevent the commission of a felony on the property of person who does killing, or on property in his possession, or in any dwelling-house where such person may be, held proper under the evidence.</p> <p>Homicide — Instruction on Justifiable Homicide Held Harmless.</p> <p>26. In prosecution for homicide, committed as the result of a dispute concerning use of land for grazing of sheep, instruction that homicide is justifiable when committed to prevent commission of a felony on property of person who does killing, or on property in his possession, or in any dwelling-house where such person may be, if error, held not ground for reversal on defendants’ appeal, being favorable to defendants.</p> <p>ON PETITION FOB BEHEAEING.</p> <p>Criminal Law — Guilt or Innocence a Question for Jury.</p> <p>27. The question of defendant’s guilt or innocence is exclusively for the jury; the Supreme Court’s only duty on appeal being to ascertain whether there was sufficient evidence to carry the case to the jury.</p> <p>Homicide — Whether Defendant had Fired Shot, or Been Mere Bystander, Held for Jury.</p> <p>28. In a homicide prosecution, involving the issue of whether defendant had been a mere bystander, or had fired one of the shots that had struck deceased, evidence held sufficient for submission to the jury of the guilt or innocence of such defendant.</p> <p>Homicide* — Defendant Guilty of Manslaughter, Though Shot was not Necessarily Fatal.</p> <p>29. A defendant who fired one of the shots that struck deceased, is guilty of manslaughter, under Sections 1897, 1902, L. O. L., where sueh shot contributed to deceased’s death, though the shot was not necessarily fatal, and though the shot fired by other defendant was necessarily fatal.</p> <p>Homicide — Evidence Held to Make Self-defense a Question for the Jury.</p> <p>30. In a homicide prosecution, involving self-defense issue, evidence held sufficient for submission to the jury.</p> <p>Criminal Law — Question on Which Evidence is Conflicting is for the Jury.</p> <p>31. Where the evidence was conflicting, the question of defendant’s guilt or innocence was for the jury.</p> <p>Homicide — Evidence That Body Could have Been Moved Without Leaving Footprints Held Admissible.</p> <p>32. In homicide prosecution, where it was claimed that defendants had moved decedent’s body subsequent to his death, but there were no footprints surrounding the body, where it lay when the officers arrived, evidence that the body could have been moved without leaving such footprints held admissible.</p> <p>Criminal Law — Exclusion of Evidence not Considered in Absence of Answer and Specification in Brief.</p> <p>33. Refusal to permit answer to question will not be considered where record does not disclose answer witness would have given, if permitted to testify, and where appellant fails to point out in his brief wherein he was injured by the refusal to permit Witness to answer.</p> <p>Homicide — Decedent’s Peaceableness Admissible, Where Character Assailed.</p> <p>34. The state cannot, as a part of its primary case, offer evidence concerning decedent’s reputation as a peaceable and quiet person, but generally can offer such evidence in rebuttal, if de-' cedent’s character for peaceableness is assailed by the accused.</p> <p>.Homicide — Where, Self-defense is Pleaded, State may Show Decedent’s Peaceableness.</p> <p>35. In a homicide prosecution, the plea of self-defense, with evidence tending to support it, held a sufficient attack on decedent’s character for peace and quiet to entitle the state'.to submit rebuttal evidence of'his good reputation for peaceableness.</p> <p>Criminal Law — Error not Listed Among Assignments not Considered.</p> <p>36. Alleged error not listed among the assignments of error will not be considered.</p> <p>Criminal Law — Defendant's Reputation Confined to Trait Involved in Offense Charged.</p> <p>37. G-enerally, evidence as to defendant’s reputation must be confined to the trait involved in the crime charged.</p> <p>Witnesses — Cross-examination as to Defendant Being Charged With Theft Held Proper.</p> <p>38. In homieide prosecution, where character witness for defendant had testified on direet examination that defendant’s reputation was that of a law-abiding citizen, cross-examination as to defendant having been charged with theft held proper.</p> <p>Criminal Law — Appellants cannot Complain of Testimony, in Absence of Motion to Strike or Objection.</p> <p>39. Appellants cannot complain of admission of testimony to which they did not object, and which they did not move to have stricken.</p> <p>Criminal Law — Homicide—Rule That Assignments not Argued are Waived Disregarded in Homicide Prosecution.</p> <p>40. Generally, assignments of error not argued, by appellant will be treated as having been waived, but such rule will be disregarded in homieide prosecutions, since in such cases the liberties of the defendants are involved.</p> <p>SECOND PETITION FOR REHEARING.</p> <p>Criminal Law — Distance of Witnesses from Scene Does not Make Testimony Circumstantial so as to Require Instruction Thereon.</p> <p>41. The fact that witnesses who testified to seeing the petitioning defendant raise his arm and shoot were so far from the scene of the shooting that they could hear none of the conversation between the parties does not make their testimony circumstantial, so as to entitle that defendant to an instruction as to conviction on purely circumstantial evidence.</p>

<p>Criminal Law — Motion in Arrest, Filed Two Days After Verdict, but Before Entry of Judgment, is in Time.</p> <p>1. Under Sections 175, 1559,1560, L. O. L., prescribing the time for filing motions for new trial, and requiring a motion in arrest to be filed within the same time, a motion in arrest, filed two days after verdict, but before entry of judgment, is in time.</p> <p>Infants — Indictment Insufficient to Charge Offense of Contributing to Delinquency of Minor.</p> <p>2. An indictment, charging that defendant did wrongfully contribute to the delinquency of a minor female child, and induced her to have unlawful sexual intercourse with him, she not then and there being his wife, is insufficient where it did not allege that the minor, who was averred to be over the age of 16, was unmarried, for a female minor of the age of 15 or over, if married, cannot be a delinquent child, and the fact that sueh minor is not married must affirmatively appear.</p>

<p>Divorce — Evidence Insufficient to Show Cruel and Inhuman Treatment.</p> <p>1. In a husband’s aetion for divorce, evidence held insufficient to show that the wife was guilty of cruel and inhuman treatment; it not appearing that she was so neglectful of her household duties as to be cruel, or that her boasts as to her previous admirers, which were in line with her husband’s boasts, amounted to cruelty.</p>

<p>Animals — Killing to Prevent Trespass Does not Prove Wanton or Malicious Killing.</p> <p>1. Evidence that accused shot and kijled the cow of another because she was breaking into his hay corral does not prove that the killing was malicious and wanton, as defined by Sections 2396, 2398, L. O. L., so as to- justify his conviction under Section 1969, but is merely proof of civil liability under Section 5767.</p> <p>On right to kill trespassing animals, see notes in 1 Ann. Cas. 193; 16 Ann. Cas. 951; Ann. Cas. 19130, 970.</p>

<p>Reformation of Instruments — Complaint must Allege That Mistake was Mutual or Originated in Fraud.</p> <p>1. A complaint, in a suit for the reformation of a written instrument, must allege that the mistake was mutual, and did not arise from plaintiff’s own gross negligence, or that his misconception originated" in the fraud of defendant.</p> <p>On pleading in suit for reformation of instruments, see note in 65 Am. St. Rep. 496.</p> <p>Appeal and Error — Defect in Complaint Waived, Where not Challenged Below by Demurrer.</p> <p>2. Though the complaint for reformation of a policy of burglar insurance was defective in failing to allege that the mistake was mutual, etc., yet where it was not challenged by demurrer, it cannot, after decree, be attacked in the appellate court, and the defective statement will there be treated as sufficient.</p>

<p>Criminal Law — Voluntary Confession Admissible, Though Accused was not Cautioned.</p> <p>1. A confession made while in custody, not induced by threats or promises of immunity, 'is admissible, though accused was not cautioned that it might be used against him nor advised as to his legal rights.</p> <p>Criminal Law — Bad Faith of Prosecuting Officer in Asking Impeaching Question not Presumed.</p> <p>2. In the absence of evidence on the subject, bad faith on the part of the prosecuting officer in asking defendant an impeaching question cannot be presumed, though he did not follow this with testimony of an impeaching witness.</p> <p>Criminal Law — Court’s Attention must be Directed to Failure to Instruct.</p> <p>3. Failure of the court to instruct on pertinent matters is not error when the court’s attention is not directed thereto.</p> <p>Criminal Law — Requested Instruction on Reasonable Doubt Properly Refused Where Covered by Instructions Given.</p> <p>4. Requested instruction on reasonable doubt held covered by instructions given, so that its refusal was not error.</p> <p>On admissibility of confessions in general, see notes in 6 Am. St. Rep. 242; 19 Am. St. Rep. 814; 73 Am. St. Rep. 943.</p> <p>The question as to when confession is voluntary is discussed in notes in 18 L. R. A. (N. S.) 771, and 59 L. R. A. (N. S.) 1077.</p> <p>On whose promises are contemplated by rule excluding confession made under promise of immunity, see note in 7 A. L. R. 419.</p> <p>Criminal Law — Instruction Assuming Evidence of Good Character Properly Refused.</p> <p>5. Requested instruction as to consideration of evidence of good character was properly refused, it assuming there was such evidence, but the transcript of the testimony containing none.</p>

<p>Evidence — 'Agency Held Sufficiently Shown to Admit Conversation With Principal.</p> <p>1.1 In an action for the possession of sheep owned by a third person, evidence held to establish plaintiff’s agency for such person sufficiently to justify admission of a conversation between defendant and the third person.</p> <p>Appeal and Error — Error in Instruction Held Cured by Verdict for Defendant on Separate Independent Issue.</p> <p>2. In action for possession of sheep, any error in an instruction as to plaintiff’s former right of possession as between him and the owner, a third party, was immaterial, where the vevdiet showed that the jury did not find against plaintiff as having no special property or ownership, but found in favor of defendant on his affirmative answer that he took up the sheep for trespassing and cared for them.</p>

<p>Waters and Watercourses — Watercourse may not be Obstructed by Land Owner Where Entering His Land to Injury of Upper Proprietor.</p> <p>1. A stream flowing through plaintiff’s land into that of defendant, if constituting a watercourse within the meaning of the common law, may not be obstructed by defendant at its entrance into his land, unless he provides some equally convenient method for draining plaintiff’s land.</p> <p>Waters and Watercourses — Stream Arising from Seepage or Collected in Channel Held a “Watercourse.”</p> <p>2. A stream existing from time immemorial, made by flow of waters arising from seepage from the hills or collected in one channel by the general slope of the surrounding country, having well-defined banks through which water is accustomed to • flow, serving the useful purpose of carrying away water that would otherwise accumulate on the lands, and having a flow, though not continuous, fairly regular, and not the offspring of sudden and unusual freshets, is a “watercourse” within the common law.</p> <p>Waters and Watercourses — Land Owner may Change Course of Stream if not Injuring Others.</p> <p>3. Where a watercourse draining plaintiff’s land enters that of defendant, he may drain it by a ditch on his land; plaintiff’s only right being that its flow shall not be arrested, so as to turn it back on her land.</p> <p>Injunction — Comparative Injury not Considered in Case of Continuing Trespass.</p> <p>4. The Supreme Court of Oregon is not inclined to apply the rule of comparative injury in determining whether an injunction shall issue in the ease of a continuing trespass.</p> <p>On right of land owner to impede flow of stream from lands of another, see note in 85 Am. St. Kep. 708.</p> <p>On the question of liability for damming back waters_of stream, see note in 59 L. E. A. 817.</p>

<p>Divoree — Tried De Novo on Appeal.</p> <p>1. On appeal from a deeree denying a divoree, tbe cause must be tried do novo.</p> <p>On necessity of -personal violence to constitute cruelty warranting divoree, see note in 9 Ann. Cas. 1090.</p> <p>On babits or course of conduct of spouse as cruelty warranting divoree, see note in Ann. Cas. 1918B, 480.</p> <p>For authorities discussing the question of cruel and inhuman treatment as ground's for divorce, see notes in 18 L. R. A. (N. Sj) 304; 34 L. R. A. (N. S.) 3G0; 65 Am. St. Rep. 69.</p> <p>Divorce — Findings of Trial Judge Given Much. Weight.</p> <p>2. In an action for divorce where the record contains irreconcilable contradictions in the evidence upon all material points, much weight will be given to the findings of the trial judge.</p> <p>Divorce — Not Discretionary, hut Matter of Eight.</p> <p>3. A decree of divorce should be granted or withheld from the plaintiff as a matter of legal right, and not as -a matter of grace.</p> <p>Divorce — Wife Cruelly Treated Entitled to Divorce.</p> <p>4. Where husband beats and chokes his wife and applies vile names to her, she is entitled to a divorce as a matter of legal right.</p> <p>Divorce — Evidence not Showing Cruelty.</p> <p>5. Evidence held not to establish husband’s cruelty.</p> <p>Appeal and Error — Divorce Decree Affirmed Without Prejudice to Another Suit.</p> <p>6. Where divorce case was tried on short notice to both parties, and it was suggested at the hearing that the plaintiff could, if given more time, seeure additional witnesses, a decree denying divorce was affirmed without prejudice to another suit, under Section 411, L. O. If.</p>

<p>Mortgages — Decision for Defendant in Foreclosure Held Conclusive Against Claim of Money had and Received by Defendant.</p> <p>1. Where complaint in foreclosure suit, in addition to setting forth the power of attorney under which note and mortgage were executed, clearly insufficient therefor, alleged, to show .ratification of the agent’s act in borrowing the money and executing the note and mortgage, that the money was applied to defendant’s use and benefit, all of which benefits she accepted and retained, and the court found the equities to be with defendant, such decision was res judicata of plaintiff’s claim, sought to be enforced in a subsequent suit, that defendant was liable for the money advanced on the note and mortgage as for money had and received.</p> <p>Judgment — Opinion Looked to, to Determine Matters Concluded.</p> <p>2. Where there was only a general finding, recourse may be had to the court’s opinion to show what was actually decided, relative to the question of the matters as to which the decree is res judicata.</p> <p>Judgment — Conclusive on Matters in Issue.</p> <p>3. A fact properly in issue, and necessary to the determination of the case, is by the decree on the equities concluded from reexamination in a subsequent suit or action between the parties.</p> <p>Judgment — Conclusive Irrespective of Form of Action.</p> <p>4. Relative to a fact in issue, and necessary to the determination of the case, being finally concluded by the decision, as between the parties, it is immaterial that the form of action differs, as that the first is a suit to foreclose a" mortgage, and the second an action for money had and received.</p> <p>On resort to record or other evidence to determine matters concluded by judgment, see note in 44 Am. St. Rep. 562.</p> <p>On application of doetrine of res judicata to issues in action as to which judgment is silent, see. note in 6 Ann. Cas. 104.</p>

<p>Appeal and Error — Case Before Supreme Court on Complaint and Findings in Absence of Bill of Exceptions.</p> <p>1. Where there is no bill of exceptions in the record, the ease comes to Supreme Court on the complaint and findings.</p> <p>On nature of labor or material which will support an aetion upon a contractor’s bond, see notes in 43 L. R. A. (N. Si) 162; L. R. A. 1915F, 951.</p> <p>Municipal Corporations — Statute Providing for Execution Public Contractor’s Bond Liberally Construed.</p> <p>2. Section 6266, L. O. L., as amended by Laws of 1913, page 59, providing for execution of contractor’s bond • conditioned on payment of claims for labor and material furnished public contractor, will be construed liberally.</p> <p>Municipal Corporations — Statute as to Contractor’s Bond. Concerns Every Relation of Contractor to Work.</p> <p>3. Section 6266, L. O. L., as amended by Laws of 1913, page 59, providing for execution of bond, condition of p'ayment of claims for material and labor furnished public contractor, concerns every approximate relation of the contractor to the work which he has contracted to do; it being the labor and material supplied for the prosecution of the work which is protected, and not some obligation incurred by the contractor which does not approximate the construction contracted for.</p> <p>Municipal Corporations — Claim for Rental for Equipment While not Used Held not Within Contractor’s Bond.</p> <p>4. Claim for rental for equipment leased to public contractor for the period of time such equipment was not used is not within the protection of the contractor’s bond, executed under Section 6266, L. O. L., as amended by Laws of 1913, page 59.</p> <p>Trial — Findings must be Responsive to Issues.</p> <p>5. Findings of trial court must be responsive to the issues, and, if not responsive thereto are nullities-, and will not support the judgment, since such findings will not supply necessary allegations required in the pleadings.</p>

<p>Divorce — Findings of Trial Court Held of Great Weight.</p> <p>1. In an action for divorce, where there wás a great mass of testimony and much of the credibility of the witnesses depended upon their conduct and appearance on the stand, the findings of the trial court, who saw and heard the witnesses testifying, are entitled to much consideration.</p> <p>Divorcei — Statute Giving Successful Party One Third of Other’s Property is Imperative.</p> <p>2. 'Section 511, It. O. L., providing that the party securing a divorce shall be entitled to one third of the real estate then owned by the other is imperative, and a wife securing a divorce from her husband must be given an undivided one-third interest in property standing in his name, regardless of the property owned by her.</p> <p>Divorce — Statute Giving Interest in Property Does not Apply to Land Outside State.</p> <p>3. Section 511, L. O. L., entitling the party securing a divorce to one third of the real estate owned by the other does not apply to land outside of the state, which cannot be affected by the decree of the court. •</p> <p>On validity of decree in divorce action passing title to land situated in another jurisdiction, see note in 17 Ann. Cas. 859.</p> <p>Por authorities passing on the question of jurisdiction of equity over suits affecting real property in another state or county, see notes in 69 L. R. A. 673; 23 L. R, A. (N. S.i) 924; 27 L. R. A. (N. S.) 420.</p>

<p>Dower — Statute, Attempting to Confer Exclusive Jurisdiction on County Court for Admeasurement of Dower Irrespective of Dispute, Ineffective.</p> <p>1. Despite Article YU, Section 12, of the Constitution, as amended in 1910, giving the County Court the jurisdiction pertaining to probate courts, Oregon Laws, Section 936, subdivision 8, in so far as attempting to confer exclusive jurisdiction on the County Court in all cases of admeasurement of dowor, irrespective of any dispute as to the widow’s right, is ineffective for such purpose, and a County Court in which a widow sought admeasurement of her dower erred in proceeding with the admeasurement after it appeared from the answer of the heirs that a dispute existed as to her right, and that the answer presented a question of fact.</p> <p>Courts — “Inferior Courts” Defined, and Held Proceedings must Show Jurisdiction.</p> <p>2. Used in a narrow and technical sense, the words “inferior courts” mean courts of a special and limited jurisdiction, which are created on such principles that their judgments taken alone are entirely disregarded, and the proceedings must show their jurisdiction.</p> <p>Certiorari — Writ of Review Lies from Circuit Court to County Court Which Entertained Widow’s Contested Proceeding for Ad-measurement of Dower — “Inferior Court.”</p> <p>3. Any court; as the County Court, subject to the appellate jurisdiction and supervisory control of the Circuit Court under Article VII, Section 9, of the Constitution, is an “inferior court,” within the meaning of the statutes, authorizing writ of review from -the Circuit to the County Court, so that writ of review from the Circuit Court will lie to review the action of the County Court in entertaining a widow’s proceeding, contested by heirs, for ad-measurement of dower.</p> <p>Courts — Holding That County Court is “Court of General and Superior Jurisdiction” Means Record Imports Verity.</p> <p>4. The holding that in probate matters the County Court is a “court of general and superior jurisdiction” simply means .that its record imports absolute verity, and cannot be collaterally attacked.</p> <p>Judgment — Proceeding by Writ of Review is a Direct Attack on Decree.</p> <p>5. A proceeding by a writ of review is a direct, and not a collateral, attack upon the deeree sought to be reviewed.</p> <p>On what is direct as distinguished from collateral attack on judgment, see note in Ann. Cas. 19141$, 82.</p>

<p>From Multnomah: Calvin U. Cantenbein, Judge.</p> <p>Department 2.</p> <p>This is an action prosecuted for the purpose of recovering damages emanating out of injuries by fire to certain property situated in Wahkiakum County, Washington, near the town of Cathlamet. The character of the property injured, the nature of the damages, the cause of the fire, the loss sustained, by reason thereof, as claimed by the plaintiffs, is told in the following paragraphs of their complaint of record:</p> <p>“That the plaintiffs, on the 16th day of April, 1917, entered into a contract with Bertha E. Martin for the purchase of the cedar timber on the following described land situate in the State of Washington, to-wit: [description omitted.]</p> <p>“That on or about the 1st day of May, 1917, the plaintiffs commenced the construction of a shingle mill on that part of said land situate in the county of Wahkiakum, State of Washington, at a point near the center of the line between said section six and seven in Township 8 North of Range 4 West of the Willamette Meridian, and completed said mill at a cost of $4,500, and that said mill was reasonably worth said sum on the 1st day of July, 1918. That plaintiffs also erected buildings near said mill, which were reasonably worth the sum of $200 on said 1st day of July, 1918; that plaintiffs constructed a road to said mill from the county road leading in a northwesterly direction from Oak Point, and other connecting roads, for the purpose of transporting shingles to the river landings at Oak Point and Hansen’s landing on the Columbia River, at a cost of about $1000. That plaintiffs transported a donkey engine, which they owned, to said lands of Bertha E. Martin during the month of May, 1917, for the purpose of drawing in cedar logs to said mill. That said donkey engine was at said mill on the said 1st day of July, 1918, and was, with the equipment thereon, reasonably worth the sum of $1500.</p> <p>“ * * The said fire resulting from the two fires aforesaid running together was carelessly and negligently permitted by said defendants to run along and upon said mountain ridge or plateau in an easterly direction, until the same finally was carried and communicated by the prevailing westerly winds to and upon the lands of the said Bertha E. Martin during the latter part of June, 1918, and that on the 1st day of July, 1918, the said fire, being fanned and driven by a strong westerly wind, was communicated to and upon said shingle-mill, and burned the same, thereby causing damage to these plaintiffs in the sum of $3000, and burned a part of plaintiffs’ said buildings, and rendered them all useless,- to plaintiffs’ damage in the further sum of $200, and burned the cable and sled to plaintiffs’ said donkey engine, to plaintiffs’ further damage in the sum of $100, whereby plaintiffs were damaged in the total sum of $3,300, as above set out by reason of said fire destroying their property in and about said mill.</p> <p>‘ ‘ That in and by the terms of said contract of sale of said cedar timber from said Bertha E. Martin it was provided, among other things, that plaintiffs were to pay ten cents per thousand shingles for the shingle output of said timber, to be computed on the number of thousand shingles to be manufactured therefrom by plaintiffs. That on said first day of July, 1918, there was a large amount of cedar timber on said lands, which had been cut and thrown down, and the said cedar timber was- very dry, on account of the spring and early summer being unusually dry, and a large amount of said cedar timber was burned and destroyed by said fire, to-wit, a sufficient amount thereof to have manufactured at least forty million shingles. That said cedar timber was burned and destroyed as a result of defendant’s carelessness and negligence as hereinbefore set out, to plaintiffs’ damage in the sum of $6000.</p> <p>“Wherefore plaintiffs pray for a judgment against each and all of said defendants for the sum of $3300 on account of the said damage to their said mill, buildings, and donkey engine, and for the further sum of $6000 on account of their loss by reason of the destruction of said cedar timber, and for their costs and disbursements in this action.”</p> <p>The Cathlamet Timber Company, a corporation, defendant and appellant, voluntarily came into court and joined issue with the plaintiffs in the court below by filing an answer, traversing the material allegations of the complaint and alleging new matter by way of defense, to which new matter the plaintiffs replied. A trial by jury was had, which resulted in a verdict in favor of the plaintiffs in the sum of $2,000. The defendant appealed to this court, and for grounds assigned numerous errors of the court below relating to its rulings in allowing the introduction of evidence as to certain of the defendants; in refusing to strike out the evidence of one Rudolph Finkas; in allowing the introduction of the contract between Bertha E. Martin and the plaintiffs; in allowing the testimony to show that defendant was a branch of the Portland Lumber Company, without an offer to produce the record of either corporation; in allowing evidence showing plaintiffs ’ damage through the burning of timber; in allowing witnesses to testify to conversations with officers of the Portland Lumber Company, for the purpose of establishing relationship with the defendant corporation; in allowing witnesses to testify to the relationship of defendant and Portland Lumber Company, without the production of the corporate records of either corporation; in overruling a motion for a nonsuit in favor of defendant; in refusing to direct a verdict; and in giving a certain instruction.</p> <p>The appellant now for the first time challenges the jurisdiction of the Circuit Court of the State of Oregon in and for Multnomah County to hear and determine the cause submitted to it by the parties thereto.</p>

From Multnomah: Bobert G. Morrow, Judge. Department 1. This is an action for damages for breach of the covenants contained in a lease of real estate. The complaint alleges that on November 13, 1917, plaintiff entered into a contract with the defendant John Van Zante for the leasing of a certain tract of farm land in Washington County, of which Van Zante claimed to be the owner and in the possession.

From Jackson: Frank M. Calkins, Judge. Department 1. The defendant was convicted of the crime of assault and robbery being armed with a dangerous weapon, and has appealed.

Original proceeding in Supreme Court in mandamus. In Banc. This is an original proceeding in mandamus.

From Malheur: Dalton Biggs, Judge. In Banc. This is a suit to foreclose a chattel mortgage upon a hand of sheep and the increase and wool thereof, for the sum of $23,049.65 and future advances. From a decree in favor of plaintiff, defendant Loren Goicochea appealed. The plaintiff also prosecuted a cross-appeal.

<p>From Malheur: Dalton Biggs, Judge.</p> <p>In Banc.</p> <p>This is a suit for an accounting of the partnership affairs and the dissolution of the partnership between plaintiff and defendant. The history of the controversy is stated in an opinion this day rendered, in the case of Aramburn v. Guerricagoitia, ante, p. 258 (193 Pac. 922), to which opinion reference is hereby made. The trial court rendered a decree covering the matters involved in both cases. Both plaintiff and defendant have appealed from the decree in this suit.</p>

<p>Appeal and Error — Appeal Dismissed, and Judgment Affirmed, for Failure to File Abstract.</p> <p>1. Where appellant asks and obtains 20 days’ additional time witbin which to file her abstract, and fails to file it within several months, a motion for dismissal and affirmance of judgment will be granted, under Rules 6 and 16, 89 Or. 712, 718, (173 Pae. viii, x).</p> <p>Appeal and Error — Unreasonable Delay in Filing Bill of Exceptions No Excuse for Failure to File Abstract.</p> <p>2. While the Supreme Court has not fixed any precise limit of time within which a bill of exceptions must be settled and filed and sent to' it, it will not allow an unreasonable delay in so doing to excuse a failure to file the abstract within the time allowed by the rules or an extension of such time.</p>

From Crook: T. E. J. Duffy, Judge. In Banc. Action by A. M. Logan and another, copartners doing business under the firm name and style of Logan Bros., against R. B. Cross. Judgment for the plaintiffs, defendant appeals, and plaintiffs move to dismiss the appeal. Appeal dismissed, and judgment affirmed.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. The appellant, N. M. Apple, was a real estate broker in the City of Portland. Chas. M. and Eunice E. Hollopeter were the owners of certain lands in Yamhill County, this state, which they exchanged for other lands in Tillamook County through the agency of Apple, whom they employed to represent them.

From Malheur: Dalton Biggs, Judge. In Banc. William Stevenson, a married man, the defendant and appellant, was indicted by the grand jury of the Circuit Court of the State of Oregon in and for the county of Malheur, charged with the commission of the crime of adultery with one Buth Lackey, wife of Herbert Lackey, the complaining witness.

From Multnomah: Robert G. Morrow, Judge. Department 1. Ivan King owned a farm on Sauvies Island. The farm embraced about 510 acres. C. G. Adams owned forty-two head of cattle, of which three were calves, and most, if not all, of the remainder were cows. King agreed to “pasture and hand feed” the cattle from November 1, 1917, to May 1, 1918.

From Gilliam: David E. Parker, Judge. Iu Banc. ' Action by- J. A. Bicbmond against J. B. White and another. From the decree rendered, plaintiff appeals, and the named defendant moves to dismiss the appeal.

<p>Pleading — Facts Stated in Complaint Assumed True on Motion to Elect.</p> <p>1. Por the purpose of considering defendant’s motion to compel plaintiff to elect upon which of his alleged causes of action he will rely, the facts stated in the complaint are assumed to be true.</p> <p>Pleading — Election not Compellable Unless Duplicate Recovery Possible.</p> <p>2. Plaintiff will not be required to elect upon which of his alleged causes of aetion he will rely where, under the -complaint, there cannot be duplicate recovery for the same cause of action.</p> <p>Appeal and Error — Denial of Motion to Elect Held not Reversible Error Under Statute.</p> <p>3. Even if plaintiff, under Section 67, Or. L., should have stated two alleged causes ,of aetion in one count, his failure to do so held not ground for reversal, under Sections 85 and 107, because of denial of defendant’s motion to compel election; defendant having suffered no prejudice by the ruling.</p> <p>Contracts — Complaint for Breach of Hauling Contract Held not Demurrable. i</p> <p>4. In aetion for breach of - hauling contract, complaint held not demurrable.</p> <p>Contracts — Mutuality Required.</p> <p>5. A promise made -by -one party without a corresponding consideration, obligation or promise made by the other is void.</p> <p>Contracts — To be Construed as a Whole.</p> <p>6. A contract must be construed as a whole; every paragraph, every sentence, clause, phrase and word must be considered in interpreting its meaning.</p> <p>Contracts — Option to Continue Hauling Contract not Void for Want of Mutuality.</p> <p>7. Provision in eoneentyates hauling contract that, after 1,609 tons of concentrates had been hauled, the contractor should have the preference right to continue hauling so long as the other party had any hauling to be done, was not void for lack of mutuality where the contractor purchased a motor truck, hauled 1,600 tons, exercised his preference right, -and continued to haul until he had transported 4,300 tons, when the other party attempted to rescind.</p> <p>Contracts — Unilateral Contract may be Made Mutual by Performance.</p> <p>8-, Where the promise consists of the doing of an act by another, and the latter does the aet, the contract is mot void for want of mutuality.</p> <p>Contracts — Adequacy of Consideration not Inquired into.</p> <p>9. The law will not inquire as to the adequacy of a consideration, but anything which fulfills the requirements of consideration will support a promise, whatever may be the comparative value of the consideration and of the thing promised.</p> <p>Damages — Lost Profits must be Proved by Definite Data.</p> <p>10. Where loss of profits from breach of contract is sought to be recovered, such probable profits must be established by proof of data from which the extent of the profit, if any, may be ascertained.</p> <p>Contracts — “Unavoidable Serious Accident” Defined.</p> <p>11. In a contract barring liability for delays caused by “unavoidable serious accidents,” such an accident means unusual, unexpected and unintended occurrence, not brought on by failure to exercise ordinary care and prudence, and of such character that the parties could not reasonably have contemplated the same at the time of the contract to take adequate precautions to prevent it by the exereise of ordinary diligence, prudence and foresight, and which causes such interference and resulting delay as could not by such diligence, prudence and foresight have been avoided.</p> <p>Contracts — Whether Delay Excusable as Caused by Unavoidable Serious Accident Held for Jury.</p> <p>12. Under a concentrates hauling contract, .barring delays caused by unavoidable serious accidents, where the contractor’s truck, while hauling a load of concentrates, íot some unexplained reason, and without negligence of the contractor or his agents, left the road and rolled down a steep embankment, injuring the driver and damaging the truck, and the accident, according to the evidence, resulted in some delay, whether such delay was excusable as caused by an unavoidable serious accident was for the jury.</p> <p>Appeal and Error — Under the Constitution, Verdict Supported by Some Evidence not Reviewable.</p> <p>13. Under Article VII, Section 3, of the Constitution, the Supreme Court -will not re-examine a cause or fact tried by a jury, unless the court can affirmatively say there is no evidence to support the verdict.</p> <p>When loss of profits an element of damages, see note in <50 Am. Rep. 488.</p> <p>Right to recover .profits as damages for breach of contract where profits are very object of contract, see note in Ann. Cas. 1914D, 36.</p> <p>10. On loss of profits as element of damages for breach of contract, general rules applicable to all kinds of contracts, see note in 53 L. R. A. 34.</p>

<p>Trial — Jury Trial Waived Where Both Parties Moved for Directed Verdict.</p> <p>1. Where each party moved for a directed verdict, the right to trial by jury was waived, and the question was submitted to the court as a matter of law whether verdiet should be directed for plaintiff or defendant.</p> <p>Pleading — Conclusions of Pleader cannot’ Vary Liability of One Executing Note.</p> <p>2. Where a note with the addition of defendant’s name on the .back was set forth in the complaint, defendant’s liability is fixed by the instrument, which controls conclusions of the pleader as to liability.</p> <p>1. Effect of request of both parties for directed verdict, see notes in 6 Aim. Cas. 545; 13 Ann. Cas. 372; Ann. Cas. 1913C, 1342.</p> <p>2. On character under uniform negotiable instruments law, of one who places his name on back of note prior to or at time of delivery, see notes in 14 L. R. A. (N. S.) 842, and L. R. A. 1916D, 223.</p> <p>Bills and Notes — One Placing His Name on the Back of a Note Held an Indorser.</p> <p>3. Under Section 7855, Or. L., declaring that anyone placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed an indorser unless he clearly indicates his intention to be bound in some other capacity, and in view of 'Section 7856, declaring that an individual not otherwise a party who places his signature on a note in blank before delivery is liable as an indorser, defendant, who placed his name on the back of a note without any notation indicating his intention to be otherwise .bound, is liable only as an indorser.</p> <p>Evidence — Words Varying Indorser’s Liability must Appear on the Instrument Itself.</p> <p>4. Under Sections 7855, 7856, Or. L., words varying the liability of one placing his name on the back of a negotiable instrument from that of a mere indorser must appear on the instrument itself as part of the indorsement, for not only is this so required by statute, but promissory notes being in a sense accepted as current money by merchants should carry a full statement of all of their conditions.</p> <p>Bills and Notes — To Hold Indorser, Presentment must he Shown or Excused.</p> <p>5. While Section 7872, Or. L., provides that presentment is not required in order to charge an indorser, where the instrument was made or accepted for his accommodation, and Section 7907 provides that notice of dishonor is not necessary in such ease, in .all other cases presentment for payment as provided for by Section 78-63 and notice of dishonor in accordance with Section 7881 must be given to charge an indorser, or the failure excused.</p> <p>Bills and Notes — Indorser Held not Person Accommodated, and so Presentment and Notice of Dishonor was Necessary — “Accommodation Party.”</p> <p>6. Where a debtor accepted drafts drawn by defendant, such drafts being discounted on defendant’s indorsement, and on maturity of acceptances a note was given for the amount of the drafts which defendant indorsed for the accommodation of his debtor, the instrument was not given for defendant’s accommodation, nor was he the party “accommodated,” within Or. L., § 7821, defining an “accommodation party” as one who signs an instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his money to another, the accommodation being to the debtor; hence, to hold defendant, it is essential to show presentment for payment and notice of dishonor.</p> <p>4. Parol evidence as admissible to vary or explain the contract implied from the regular indorsement of a bill or note, see note in 4 L. R. A. 764.</p>

From Baker: Gustav Anderson, Judge. In Banc. Held: as stated in the contract, by the plaintiff and his associates, and set out the contract as stated in the complaint, except as to the unimportant difference already mentioned.

<p>Landlord and Tenant — Tenant cannot Harvest Crops Sown Which cannot Mature Before Fixed Termination of Lease.</p> <p>1. When the termination of a farm lease is specified to oeeur at a 'certain date, the tenant who sows a crop which cannot mature and be harvested before the termination of the lease plants at his peril, notwithstanding Section 2546^ Or. L.</p> <p>Landlord and Tenant — Lessee Entitled to Harvest Crop Sown Prior to Uncertain Termination of Lease.</p> <p>2'. Where farm lease provided for termination of lease on lessor’s sale of the property prior to expiration of the specified term,, leésee, having planted crop, bad the right under Section 2546, Or. Ii., to enter upon the land and gather the crop, since in such case the termination of the lease depended on an uncertain event.</p> <p>1. Right of tenant, under lease for fixed period, to crops after termination of lease, see note in 9 Ann. Cas, 1139.</p> <p>Judgment — Judgment Against Tenant in Forcible Entry and Detainer Precludes Recovery in Subsequent Action for Seed and Work in Planting Crops.</p> <p>3. Where lessee under farm lease providing for termination of lease prior to expiration of specified term on lessor’s conveyance of the premises planted crop prior to termination of lease effected by such conveyance, and was thereafter ousted from possession by judgment in forcible entry and detainer aetion prior to harvesting of crop, such judgment would be conclusive in lessee’s aetion to recover the value of the seed and labor in planting crops if lessee’s right to enter on land and harvest the crops sown eould have been set up as a defense in the forcible entry and detainer action, since one cannot be cast in damages or suffer on account of a judgment regularly rendered in his favor.</p> <p>Landlord and Tenant — No recovery for Crops Planted Prior to Ter-' mination of Lease Without Allegation That Owner Prevented Harvest Thereof.</p> <p>4. Where lessee subsequent to termination of lease was entitled under Section 2546, Or. L., to enter on land and gather crops planted prior to termination, he could not recover from owner the value of seed and work in planting crops without alleging that owner prevented him from harvesting crop so planted.</p> <p>Landlord and Tenant — Value of Seed and Labor Held not Recoverable on Termination of Lease Without Showing Arbitration of Amount.</p> <p>5. Where farm lease provided for termination of lease prior to expiration of term on. lessor’s conveyance of land on demand by purchaser, and provided that on demand before certain date lessee should recover for labor and seed in planting crops prior thereto, the amount to be determined by arbitration, lessee eould not recover for labor and seed in planting crops prior to a demand subsequent to such data, on theory that the value of the seed and labor is to be adjusted as if the demand had been made prior to such date, without showing an effort to comply with the provision as to arbitration.</p> <p>Landlord and Tenant — Payment to Lessee for Termination Before • Expiration of Term Held not to Preclude Harvest of Crops Previously Planted.</p> <p>6. Where farm lease provided for termination on conveyance of land by lessor prior to expiration of specified term, on purchaser’s demand for possession, and provided for cash payments to lessee on such termination of lease, such payment was a compensation for termination of term, and did not preclude lessee from entering on land and harvesting crops planted prior to termination under Section 2546, Or. L.</p>

From Union: John W. Knowles, Judge. In Bane. On December 12, 1917, tbe plaintiff was the owner of 440 acres of land in Union County upon which there was then growing about 200 acres of fall grain which he had sown. On that date he sold the land with the growing crop to defendant John F. Arkell, for the agreed price of $35,500.

From G-rant: Dalton Biggs, Judge. In Banc. The plaintiff brought this action to recover certain sums alleged to have been due upon a contract whereby defendant leased certain land and personal property from plaintiff.

From Douglas: George F. Skipworth, Judge. Department 2. The Lexington Investment Company is an Oregon corporation, with its principal office at Rosebnrg. The Rosebnrg National Bank is a United States banking corporation, with its office at Rosebnrg. On April 17, 1874, James Watson died intestate in Douglas County, leaving a widow, Emily A., and ten children; Sarah J., J. F., D. L., E. B., Robert J., Charles F., Mary Kate, Emily E., Florence I., and John L. Watson.

From Clackamas: James U. Campbell, Judge. Department 2. The defendant Clackamas County is a legal subdivision of the state, and I. D. Larkins is one of its road supervisors.

From Baker: Gustav Anderson, Judge. In Banc. This is a suit, among other things, to compel the specific performance of a written agreement signed by the defendant to purchase the capital stock of the Durkee Mercantile Company, a corporation operating a general store at Durkee, in Baker County.

From Multnomah: George W. Stapleton, Judge. Department 2. In 1911 and 1912 the R. R. Thompson Estate Company, one of the plaintiffs herein, constructed the Multnomah Hotel on block 44 in the City of Portland, at a cost of something more than a million dollars. On March 1,1916, on a basis of 75 per cent of its cash value, the land was assessed at $360,000 and the building at $335,000, making a total of $695,000.

<p>Commerce — Federal Liability Act Exclusive as to Injuries from Handling Interstate Commerce.</p> <p>1. Federal Employers’ Liability Act, as amended by Act of April 5, 1910 (U. S. Comp. Stats., §§ 8657-8665), is an exercise of the paramount authority of Congress over interstate commerce, so that such statute controls all litigation for injuries growing out of the handling of interstate commerce.</p> <p>Master and Servant — Assumption of Bisk Defense Under Federal Act, Except Where Safety Appliance Act is Violated.</p> <p>2. Under federal Employers’ Liability Act, Section 4 (U. S. Comp. Stats., § 8660), eliminating the defense of assumption of risk in eases of injury through violation of any safety appliance statute, the defense remains as at common law in other eases.</p> <p>Master and Servant — “Assumption of Bisk” and “Contributory Negligence” Distinct Defenses.</p> <p>3. The defenses of assumption of risk and of contributory negligence are separate and distinct in legal effeet, although they may rest largely on the same state of facts; assumption of risk being an implied contract condition, while contributory negligence arises from the injured employee’s own tort.</p> <p>Master and Servant — Knowledge Indispensable to Assumption of Bisk.</p> <p>4. Notice or knowledge and appreciation of danger are indispensable to a servant’s assumption of risk of injury.</p> <p>2. On abrogation of assumption of risk by federal Employers’ Liability Act, see notes in Ann. Cas. 1915B, 481; 47 L. B. A. (N. S.) 62; L. B. A. 1915C, 69.</p> <p>3. The question of distinction between assumption of risk and contributory negligence is discussed in notes in 18 Ann. Cas. 960, 21 L. K. A. (N. S.) 138.</p> <p>4. On servant’s knowledge as element of defense of contributory negligence, see note in 49 L. B. A. 33.</p> <p>Master and Servant — Engineer, Knowing Location of Pits in Darkened Roundhouse, Held to Assume Risk.</p> <p>5. Where a switch engineer going to the registry-stand in the roundhouse, darkened by steam when he entered, knew the location of engine pits, and undertook to pass between the pits obscured by the steam, instead of using a safe way, he assumed the risk of injury 'by stepping into one of them.</p>

<p>Husband and Wife — Elements Constituting Alienation of Affections Stated.</p> <p>1. The action for alienation of- affections is based on loss of consortium, and loss of service or pecuniary loss is not a necessary element.</p> <p>Husband and-Wife — Defendant must have been Intentional and Controlling Cause of Alienation.</p> <p>2. Defendant’s conduct must have been the intentional cause and the controlling cause of the alienation of affections, although there may have been other contributing -causes.</p> <p>Husband and Wife — Cause of Action for Alienation not Dependent on Showing Adultery.</p> <p>3. Physical separation of the spouses is not essential, and it is not necessary that plaintiff prove debauchment, though generally, in the absence of adultery, defendant is not liable unless .aeting maliciously.</p> <p>1. On actual separation or abandonment as prerequisite to action for alienation of affections, see note in Ann. Cas. 1918A, 647.</p> <p>Husband and Wife — In Action for Alienation Natural Expressions of Wife Showing State of Mind are Admissible, Though Involving Acts and Words of Defendant.</p> <p>4. The declarations of the deserting wife, though made in the absence of defendant, are available to prove the state of the wife’s affections, her motive, and the effect produced upon her by defendant’s conduct, notwithstanding such declarations involve statements of acts done or words spoken by the defendant, but such declarations must not be mere narratives but natural expressions of the emotions showing 'her state of mind.</p> <p>Husband and Wife — Wife’s Admission to Husband of Past Adultery hot Admissible in Alienation Suit.</p> <p>5. In an action for .alienation of wife’s affections, the husband’s testimony of her admission of past misconduct and adultery with defendant was inadmissible; the utterance not being a part of the act, nor made at or approximately before the alienation, so that it was a mere narrative of past events.</p> <p>Witnesses — Wife’s Admission of Adultery Made to Husband is Privileged.</p> <p>6. In an action for alienating affections of plaintiff’s wife, her communications to plaintiff admitting adultery with defendant were shielded by Section 733, subdivision 1, Or. L., relating to privileged communications between spouses.</p> <p>Appeal and Error — No Presumption That Wife Consented to Revelation of Her Privileged Communications.</p> <p>7. The ruling of the court in an alienation of affections suit in admitting privileged communications of plaintiff’s wife cannot be supported on the theory that, there being no affirmative statement in the. record showing that she objected to the revelation of her communications, it must be presumed that she consented, where all that was done or said at the trial appears in the record and no such- consent appears therein.</p> <p>Husband and Wife — Statement by Wife That Defendant Loved and Intended to Marry Her Admissible in Husband’s Alienation Action.</p> <p>8. In an alienation action, plaintiff’s testimony that his wife said defendant had promised to provide her anything she wanted that money would buy, that he was going away to school, that she was going there, etc., was inadmissible .as a narrative of fact, while another witness’ testimony that plaintiff’s wife said she was in. love with defendant, who did not care for his own wife and intended to marry her, ete., was admissible as a natural expression of wife’s emotion.</p> <p>5. On competency of one spouse to testify as to misconduct of other in action for alienation of affections, see note in 39 L. R. A. (N. S.) 317.</p> <p>6. The question as to whether conversation between husband and wife tending to show affection or the contrary are privileged is discussed in a note in 2 L. R. A. (N. £3.) 708.</p> <p>8. On admissibility of statements or declarations of plaintiff’s spouse concerning acts or conduct of defendant in action for alienation of affections, see note in 4 A. L. R. 497.</p> <p>Trial — Requested Instructions to be Tested by Words Used, not by Words Meant to be Used.</p> <p>9. In action for alienation of affections, requested instruction that “evidence of statements of wife of the injured spouse were received in this case and admitted in evidence for the purpose only of showing the feelings of the injured spouse,” and not to establish the facts stated, held properly refused, declarations of the wife being inadmissible to prove the husband’s feelings, although it may be assumed it was intended by the framer of the instruction to so word it as to advise the jury that the wife’s declarations could only be considered as evidence of her feelings; yet the instruction must be tested by the words found in it.</p> <p>Husband and Wife — Cautionary. Instructions as to Wife’s Declarations Desirable.</p> <p>10. In an alienation of affections suit, since evidence of the alienating spouse’s declarations is receivable only for a limited purpose, and cannot be considered as evidence that defendant really did the acts or uttered the words attributed to him by such declarations, the court should advise the jury of the limited purpose for Which such declarations may be considered; for, in the absence of a' cautionary instruction, jurors will naturally assume that such declarations may be treated as evidence that defendant actually did or said what the alienated spouse said he did or said.</p> <p>Trial — Refusal of Instructions Covered by Others not Error.</p> <p>11. It is not reversible error to refuse requested instructions which are accurate and concise statements of the law applicable, where such matters are substantially covered by other instructions.</p> <p>Witnesses — Statute Held to Privilege All Communications, not Merely Confidential Ones — “Any Communications.”</p> <p>12. In Section 733, subdivision 1, Or. L., and Section 734, the words “any communications” do not mean “confidential communications,” but that all communications between husband and wife are privileged unless express or implied consent to publication is given, or unless the privilege is lost by being brought within one of the specified Code exceptions, and such statutes apply to suits for alienation of affections.</p>

<p>From Crook: James U. Campbell, Judge.</p> <p>In Banc.</p> <p>After alleging that the defendant is a corporation, the complaint proceeds in substance to state that at all times mentioned in the pleadings the plaintiff was the owner of certain agricultural lands in Crook County, semi-arid in their nature but capable of producing crops when irrigated; that the plaintiff is the owner of a vested water right from the year 1909 appurtenant to 250 acres of said realty and drawn from the waters of Ochoco Creek through a ditch known as the Table Land Ditch; that during the year,1918 the defendant was engaged in constructing a dam on Ochoco Creek below the point of diversion into that ditch; and that at all said times, including the month of May and months prior thereto, there was ■ sufficient water to subserve plaintiff’s right, “and the plaintiff had the right to the use of said ditch for the purpose of conveying water therein from said creek to his said lands; * * and the defendant at all times had full notice and knowledge of plaintiff’s said rights.” Continuing, the plaintiff changes that in constructing the dam the defendant went upon said Table Land Ditch, tore up and destroyed the same, and in the months of February, March, April and May, 1918, “willfully, purposely, wrongfully, carelessly, negligéntly, unnecessarijy and in violation of plaintiff’s said rights, and with knowledge thereof, interfered with, interrupted, obstructed and prevented the waters of said creek from flowing into said ditch or conduit and through the same to and upon the lands of the plaintiff, and purposely and willfully diverted and conveyed therefrom water flowing therein, and caused the same to run and flow elsewhere than to and upon the lands of the plaintiff,” and failed to protect the ditch from injury, with the result that plaintiff’s lands are deprived of water for irrigation purposes and by reason thereof his crops were depreciated in quality and quantity to his damage in a sum alleged. The whole complaint is traversed by the answer, except the allegation respecting the corporate character of the defendant and the plaintiff’s ownership and occupancy of the lands described.</p> <p>In the defendant’s brief on appeal we find this statement:</p> <p>“Leaving aside all other pleadings, we wish to present this case upon the complaint, the denials thereof in the answer and the third affirmative answer and defense and the reply thereto.”</p> <p>On account of this voluntary restriction we pass the first and second affirmative defenses and take up the third. Summarizing this in part, it appears therefrom that the defendant is a corporation; that the Ochoco Irrigation District was duly organized to erect and maintain a dam across Ochoco Creek, and a canal leading therefrom for the purpose of impounding the waters and delivering the same to lands included in the district, among which tracts were those of the plaintiff; that at all those times whatever right in the waters of Ochoco Creek the plaintiff had was being exercised by him through the Table Land Ditch, in which he had an interest; and that there was no other means of conveying the waters to his land except through that ditch. Thus far the reply admits the answer under consideration. The contested part of this defense is here quoted:</p> <p>“On November 21, 1917, the plaintiff, in consideration of the snm of $10,000 paid by said Ocboco Irrigation District, made, executed, and delivered to said Ochoco Irrigation District a deed of conveyance of all his right, title and interest in and to said Table Land Ditch, which deed was witnessed by two witnesses and was duly acknowledged by said plaintiff, and the same was duly recorded at page 109 of .deed book 40 of the records of Crook County, Oregon; and thereupon said Ochoco Irrigation District entered upon and into possession of said Table Land Ditch and into possession of lands adjoining said Ochoco Creek, and, after prepar: ing plans therefor and submitting the same to the State Engineer of Oregon and securing his approval thereof, constructed a dam across said Ochoco Creek and across said Table Land Ditch, and constructed said canal whereby the waters which had theretofore flowed in said river and in said ditch were dammed up and impounded and ceased to flow through the same prior to May 1, 1916, which said dam and canal and the construction thereof is the same dam and construction referred to and complained of in the complaint.</p> <p>“After entering into possession of said Table Land Ditch pursuant to said deed said Ochoco. Irrigation District employed defendant to construct said dam and canal, and pursuant to said employment defendant did, during the year 1917, commence construction of said dam and canal, and continued the construction thereof pursuant to said employment and under the direction of said district, until February, 1919.”</p> <p>In reply to the third answer and defense admits the execution of a deed to the irrigation district by the plaintiff, his wife and other parties, of date November 21,1917, whereby in consideration of the sum of $10,000 paid by the district to the grantors they did “by these presents bargain, sell, assign, set over, and convey unto the said Ochoco Irrigation District, its successors and assigns, all our right, title and interest in and to that certain real property known and designated as the Table Land Ditch, and all water rights, rights of way and easements owned by the said Table Land Ditch and the Table Land Ditch Company, a partnership, comprised of the persons executing this conveyance, together with all branches, laterals and extensions thereof or connected thereto, under whatsoever name the same may be called or designated; * * together with rights of way across any or all of our said lands within the district for the canals or laterals which it may be necessary for the district to construct.” The following reservation appears in the deed: -</p> <p>“This conveyance does not cover any water rights owned by the individuals making this conveyance nor to any water right appurtenant to their individual lands.”</p> <p>The document closes with coyenants of seizin, against encumbrances, and general warranty. It is admitted that this conveyance was executed, acknowledged, delivered to the grantee and recorded.</p> <p>The reply sets out in substance that the Table Land Ditch was constructed and owned by a partnership composed of certain individuals, of whom the plaintiff was one; that prior to the formation of the partnership each of the partners had initiated a right to the waters of Ochoco Creek, appropriated a portion thereof for irrigating purposes, and afterwards constructed the ditch as a partnership venture, as a means of conveying each separate appropriation of the water to the lands of the several appropriators; but states that the partnership never owned any of the water rights or any of the waters appropriated, they being the separate property of each appropriator and appurtenant to his separate lands. Reciting that the deed was made for a consideration of $10,000, with the reservation to each member of the partnership and to each grantor ■which has already been quoted, it is stated further in the reply:</p> <p>“And as a part of said consideration for said deed, said Ochoco Irrigation District orally agreed with each of the grantors (and particularly with the plaintiff) that said Table Land Ditch should be thereafter continuously maintained and used by said grantors for the purpose of conveying the water appropriated by each of said grantors (including the plaintiff) in and through said ditch to the lands of each appropriator above mentioned (and including the lands of plaintiff mentioned in the complaint) and that the water appropriated by said grantors severally should be conveyed therein to the lands of each separate grantor until the irrigation works of said district should be constructed and completed.”</p> <p>It is averred also that at the time the defendant entered into the contract with the district to construct the dam in question the defendant well knew all of the terms and conditions mentioned in the reply, the consideration for the deed as therein alleged and the rights of 'the plaintiff which he claims have been violated.</p> <p>A general demurrer by the defendant to the further and separate reply to the third separate answer was overruled. Afterwards the defendant moved the court for judgment on the pleadings as to the cause of action set out in the complaint, because it appears on the face of the pleadings that plaintiff is not entitled to recover herein. This also was overruled. As stated in the bill of exceptions:</p> <p>“Immediately after plaintiff rested his case defendant moved the court for the entry of nonsuit, said motion being made in the following language, to wit: ‘The defendant moves, at this time, the court for a judgment of nonsuit on the ground and for the reason that plaintiff has failed to make .out a case against this defendant sufficient to be presented to the jury for their determination.’ ”</p> <p>This was overruled and the defendant excepted. The trial was concluded by a verdict for the plaintiff and against the defendant, and from the ensuing judgment the defendant appeals.</p>

<p>From Linn: George G. Bingham, Judge.</p> <p>In Banc.</p> <p>On motion to dismiss appeal.</p>

<p>Pleading — Construed Against Pleader on Demurrer.</p> <p>1. Pleadings, when tested by demurrer, must be construed most strongly against the ^pleader.</p> <p>Pleading — Demurrer Admits Truth of Facts Well Pleaded.</p> <p>2. Demurrer admits the truth of what is well pleaded and of every reasonable and proper inference deducible therefrom.</p> <p>Executors and Administrators — Complaint Held to State Capacity ta Sue as Executor.</p> <p>3. In an action by an executor, allegations that the deceased died testate, that prior to commencement of action plaintiff was “duly and legally appointed executor” of her estate, and that after specified date “has been and now is the duly appointed and qualified and acting executor” of her estate, held sufficient on demurrer to plead capacity to sue as exeeutor; the reasonable inference being that he was appointed executor by a court of competent jurisdiction, had qualified under such appointment, and had entered upon the discharge of his duties.</p> <p>Limitation of Actions — Payment on Note Held to Revive Cause of Action.</p> <p>4. Under Sections 2'4, 25, Or. L., where payee in her will provided that maker should pay funeral expenses and that sueh payment should be credited as interest on note, and where maker in compliance therewith paid such expenses and amount thereof was credited upon note by and with maker’s assent, the payment was sufficient to revive the cause of action on the note after expiration of period of limitations.</p>

<p>Vendor and Purchaser — Burden of Proving Fraud by Vendor Bests1 on Purchaser.</p> <p>1. In a suit to foreclose a purchase-money mortgage, where defendant alleged fraud in the sale of the property to him, and asked for rescission of the contract, the burden of proving the fraud rested on defendant.</p> <p>Evidence — Greater Number of Witnesses is of Weight, but not Conclusive.</p> <p>2. In determining the issue of fraudulent representations in the sale of land, the fact that the greater number of witnesses denied the fraud, though not conclusive, is an element in determining the truth.</p> <p>Appeal and Error — Findings in Equity as to Fraud are of Influence, but not Controlling.</p> <p>3. In a suit in equity, findings by the trial judge who saw and heard the witnesses as to the existence of the alleged fraud are of influence on appeal, but are not controlling.</p> <p>Vendor and Purchaser — Evidence Held not to Establish Fraud by Vendor. „</p> <p>4. In suit to foreclose a purchase-money mortgage, where defendant sought rescission of the contract because of fraudulent representations, where defendant’s testimony of the fraud was uncorroborated, while plaintiff’s denial was corroborated by other witnesses, and defendant admitted he had an opportunity to examine the land, evidence held insufficient to establish the fraud.</p> <p>2. On preponderance of evidence as determined by mere number of witnesses, see note in Ann. Cas. 1913D, 676.</p>

<p>Evidence — Parol Evidence Buie One of Substantive Law.</p> <p>1. Section 713, Or. L., making evidence of an agreement other than the contents of the writing to which it was reduced by the parties inadmissible with certain exceptions, and Section 798, creating a presumption of the truth of faets recited in a written instrument as against the parties to the instrument, 'embody a well-established rule of common law, which is one not of evidence merely, but of substantive law.</p> <p>Evidence — Parol Evidence Buie Does not Apply to Receipts.</p> <p>2. As a general rule, the exclusion of parol or extrinsic evidence to contradict written instruments does not apply to mere receipts, or writings which are in the nature of receipts, which may be contradicted, varied, or explained.</p> <p>Evidence — Recital of Payment may be Contradicted or Varied.</p> <p>3. A recital in a written instrument as to the payment of the consideration is' in the.inature of a receipt, and may be contradicted or explained by parol or extrinsic evidence, unless such contradiction would defeat some substantial and contractual provision of a valid written instrument.</p> <p>Evidence-Contradicting Consideration Clause Inadmissible if It >- Defeats Deed.</p> <p>4. Parol evidence, offered to contradict the consideration elause o'f a conveyance, which, in effect, defeats the operation of the conveyance or lessens its effect, or incorporates therein a reservation not enumerated in the conveyance, is inadmissible.</p> <p>Evidence — Parol Evidence Inadmissible to Show Contractual Consideration for Conveyance of Ditch.</p> <p>5. Parol evidence that the parties to a conveyance of a ditch, which expressly reserved therefrom the water right which had flowed through the ditch, agreed as part of the consideration that the grantee should maintain the ditch fit for conveyance of the waters reserved, adds a contractual consideration to the moneyed consideration stated in the deed, whieh nullifies the rights to the ditch conveyed, and is therefore inadmissible.</p> <p>Evidence — Contractual Consideration cannot be Added to Money Consideration.</p> <p>6. A purely money consideration mentioned in a written instrument whieh is complete on its face cannot be amplified by parol evidence so as to ingraft into the instrument an additional executory or contractual consideration, which would impose on one of the parties an affirmative obligation, of which there is no indication or suggestion in the writing.</p> <p>1. On the general rule that parol evidence is not admissible to vary, add to, or alter a written contract, see note in 17 L. E. A. 270.</p> <p>On parol evidence to vary deed, see note in 11 Am. St. Bep. 844.</p> <p>Evidence — Parol Evidence Admissible to Show ‘Want or Failure of Consideration.</p> <p>7. Parol evidence to show an entire absence or a partial or total failure of consideration is not within the rule exeluding such evidence to vary or contradict the terms of a written instrument.</p> <p>Waters and Watercourses — Ditch can be Conveyed Separate from Waters Carried Therein.</p> <p>8. The owners of a ditch may convey the ditch to another, separate from their right to the water for the irrigation of their lands which had been previously carried in the ditch.</p> <p>Waters and Watercourses — Reservation of Water Right from Ditch Conveyance Held not to Include Right to Carriage of Waters.</p> <p>9. Where the owners of an irrigation ditch conveyed it to an irrigation district to enable the latter to construct its canal along the line of the ditch, which necessitated destruction of the ditch, a reservation of the water right of grantors did not carry with it the right to use the ditch to convey the reserved water to the lands of grantors.</p> <p>Trespass — Authority of Irrigation District Giving Contractor Right to Interrupt Flow is a Defense.</p> <p>10. In an action against a contractor for interference with the flow of water to plaintiff’s land through an irrigation ditch, the authority of irrigation district, giving contractor the right to interrupt the flow, is a defense, if the title of the district to the ditch was superior to that of the land owner.</p>

<p>Appeal and Error — Verdict Held to have Been Based on Insufficient Cause of Action.</p> <p>1. Wh,ere numerous cases were consolidated for trial, all of them involving a cause of action for interference with one ditch and some of them involving also a second cause of action for interference with another ditch, and the jury reported that it found for the plaintiffs as to interference with the first ditch, but for defendant as to interference with the second ditch, but, after being instructed by the judge to return only one verdict either" for plaintiff or defendant in each ease, they returned a verdict for plaintiff in eaeh ease, it was manifest they found for defendants on the second cause of action, so that on deciding that first cause of action was insufficient, second cause will not be considered, it being analogous to moot case, but judgment will be reversed.</p> <p>Waters and Watercourses — Irrigation District Contract Held not to Prevent Destruction of Existing Ditch.</p> <p>2. A provision in an irrigation district contract, requiring the contractor to protect from injury existing property except in so far as the work required its modification or removal, does not require the contractor to protect the rights of the former owners of a ditch to convey water for irrigation of their lands through the ditch, where they conveyed the ditch to the district for the purpose of enabling the district to construct its canal along the line of the ditch.</p>

From Crook: James U. Campbell, Judge. In Banc. This is an action by T. H. Lafollett against Twohy Bros. Company for damages in the sum of $6,550. Upon a trial by the court and a jury, a verdict was rendered in favor of plaintiff for the sum of $3,000. From a consequent judgment, defendant appeals.

From Crook: James U. Campbell, Judge. In Banc. This is an action by Powell & Powell against Twohy Bros. Company to recover damages in the sum of $1,800. From a judgment on a verdict favorable to plaintiffs in the sum of $1,000, defendant appeals.

From Crook: James U. Campbell, Judge. In Banc. This is an action for damages in the sum of $6,550, A trial resulted in a judgment upon a verdict in favor of plaintiffs in the sum of $3,000. Defendant appeals.

From Jackson: James W. Hamilton, Judge. Department 1. In this suit for divorce the plaintiff wife makes various charges against her husband which she denominates cruel and inhuman treatment.

<p>Covenants — Lease—“Encumbrance.”</p> <p>1. An outstanding lease was an “encumbrance”' witbin tbe meaning of the covenant of a warranty deed against encumbrances.</p> <p>Covenants — Lease—Admitting Receipt of Rent — Burden of Proof —Deed.</p> <p>2. In an action by grantee in a warranty deed, where defendant admitted the execution of tbe warranty deed and tbe receipt of rental from a lessee for the ensuing year, it developed upon him to prove his right to retain such rent.</p> <p>1. On unexpired lease as breach of covenant against encumbrances, see note in Ann. Cas. 1914D, 1176.</p> <p>Appeal and Error — Assumption of Burden by Respondent — Harmless Error.</p> <p>3. Where real question in dispute in action by grantee against grantor for breach of a covenant against encumbrances was whether defendant or plaintiff was entitled to rent which accrued after the execution of the warranty deed, defendant cannot complain that case was tried on the theory that plaintiff must show that his title was to relate back prior to the time lessee made a payment to defendant of rent for the ensuing year.</p> <p>Covenants — Breach of Covenant — Encumbrances—Measure of Damages.</p> <p>4. When the breach of a covenant against encumbrance in a warranty deed consists of the existence of an unexpired term or lease, the measure of damages, in the absence of any special circumstances, is the value of the use of the premises for the time during 'which the grantee has been deprived thereof.</p> <p>Pleading — Complaint Sufficient to Sustain Judgment After Verdict.</p> <p>5. A complaint which was not specific was broad enough after verdict to sustain a judgment, where the defendant met the issue and affirmatively pleaded his rights in the matter and admitted necessary facts.</p> <p>Covenants — Interest Allowed Grantee — Action Collecting Rent.</p> <p>6. Where grantor in warranty deed breached covenant against encumbrances, in that a lease existed, and collected the rental for the ensuing year, to which grantee was entitled, the grantee in an action to recover such rental was entitled to interest on the amount of the rent from the date of collection by the defendant, in view of Section 6028, L. O. L.</p> <p>ON REHEARING.</p> <p>Appeal and Error — Theory of Trial must be Adhered to.</p> <p>7. The theory upon which the ease was tried in the court below must be strictly adhered to on- appeal.</p> <p>Appeal and Error — Theory Determined from Entire Record and Brief.</p> <p>'8. The theory on which the ease was tried below, which governs on appeal, must be determined fiom the entire record and the briefs of counsel, construing the pleadings on the theory most apparent, most clearly outlined by the facts stated, and according to their •general scope and tenure.</p> <p>Vendor and Purchaser — “Warranty Deed” Implies Usual Covenants of Warranty.</p> <p>9. The term “warranty deed” in a contract of sale has a well-understood meaning as a deed containing the usual covenants generally inserted in a warranty deed, including the covenants that the land is free and clear from encumbrances.</p> <p>Contracts — Variance Held Immaterial as not Misleading.</p> <p>10. In applying the general rule that _a plaintiff declaring on a written contract cannot recover on an oral contract 'or o,ne partly oral, Section 97, Or. L., making variance immaterial unless it actually misled the adverse party to his prejudice must be considered, and a variance between allegation of a written contract and proof of one partly oral was not prejudicial where the other party alleged the oral agreement.</p> <p>Pleading — Omission of Essential Allegation cannot be Aided by Verdict.</p> <p>11. If the complaint is lacking in some material or essential allegation to establish a good cause of action, there can be no aider by verdict.</p> <p>Pleading — Conclusions of Law cannot be Substituted for Statements of Fact.</p> <p>12. Conclusions of law cannot be substituted for a statement of facts constituting the plaintiff’s cause of action, but a statement of fact may be such that it cannot be made without including a conclusion.</p> <p>Pleading — Defective Complaint Which Did not Omit Material Averment Held Cured by Verdict.</p> <p>13. Where the complaint, after rejecting conclusions of law, did not omit any material allegation, its defects are cured by the verdict which established every reasonable inference that can be drawn therefrom.</p> <p>Deeds — Contract Provisions as to Covenants Connected With Title or Possession Merged in Deed.</p> <p>14. The deed given in execution of a contract for the sale of land and accepted" as such governs the rights of the parties as to any inconsistent 'covenant connected with the title, possession, quantity or emblements of the land, though it does -not supplant collateral and independent covenants.</p> <p>Covenants — Breach by Existing Lease Gives Bight of Action for Bental Value; “Bent.”</p> <p>15. Where the covenant against encumbrances was breached by an existing lease, the measure of the grantee’s damages is the rental value of the land for the time possession is withheld from him,- and he may recover the rent for such time collected by the vendor; “rent” being the compensation paid for the use of the demised premises which is treated as a profit arising out of lands and tenants corporeal.</p> <p>Covenants — Grantor Covenants Against Known and Unknown Encumbrances.</p> <p>16. The covenant against encumbrances in a warranty deed, protects the purchaser against existing encumbrances of which he has knowledge, as well as against those which are unknown to him.</p> <p>Covenants — That Tenant Attorned After Expiration of Term for Which Vendor Collected Rent Does not Defeat Purchaser’s Right to Rent.</p> <p>17. Where the vendor collected a year’s rent in advance shortly before conveying by warranty deed with covenant against encumbrance, the fact that at the expiration of the time for which rent was collected the tenant attorned to the purchaser does not defeat the purchaser’s right to recover from the vendor the rental value prior to that time.</p>

From Coos: John S. Coke, Judge. Department 2. The plaintiffs are engineers with principal office in Los Angeles, California. The West Coast Development Company is an Oregon corporation, with principal office and place of business at Bandon, in Coos County. It has a capital stock of $100,000, divided into 1,000 shares of the par value of $100 each. The remaining defendants are residents of that county.

<p>Quieting Title — -“Cloud on Title’’ Defined.</p> <p>1. A “cloud upon title” may be defined substantially as an estate in or encumbrance upon real property which is apparently valid but in fact without foundation.</p> <p>Quieting Title — Valid Judgment and Sale Thereunder not a Cloud on Title.</p> <p>2. Where defendant, who was acting as attorney for plaintiff in former litigation when a judgment was rendered against her, subsequently purchased land sold under execution issued on such judgment, such facts did not constitute a eloud on title in absence of any showing of invalidity in the judgment.</p> <p>Judgment — Decree Awarding Defendant Attorney a lien Held Inconsistent With Plaintiff’s Allegations of Advances to Defendant.</p> <p>3. Where a complaint alleged that defendant, while formerly acting as plaintiff’s attorney and having in his possession money belonging to plaintiff applicable to the satisfaction of a judgment rendered against her, permitted the judgment to remain and caused or connived at issuance of execution thereon against her land which he purchased at the execution sale, a decree treating the sheriff’s deed as á cloud on her title, but awarding the defendant a lien, was inconsistent with the averments of the complaint that defendant had possession of plaintiff’s moneys sufficient and applicable to discharge of the judgment.</p> <p>6. On right of attorney to purchase from adverse party subject, matter of employment, see note in Ann. Cas. 1915C, 953.</p> <p>On right of attorney of party to proceeding to purchase property at judicial sale, see note in 21 Ann. Cas. 274.</p> <p>On right of attorney to purchase subject matter of litigation or retainer from client and his duty in relation thereto, see notes in 23 L. R. A. (N. S.) 679, and 28 L. R. A. (N. S.) 723.</p> <p>Evidence — Presumption That Clerk Issuing Execution Performed Duty Held not Overcome by Testimony.</p> <p>4. The presumption that a clerk issuing an execution did so regularly at request of plaintiff, and not defendant’s counsel, held not overcome by sueh clerk’s testimony a few years afterwards that the best of her recollection was that she issued it at request of defendant’s counsel.</p> <p>Attorney and Client — Evidence Held not to Show Conversion of Client’s Funds.</p> <p>5. Evidence held insufficient to show that an attorney supplied with funds applicable to a judgment converted them to other uses.</p> <p>Attorney and Client — Attorney may Purchase Land Sold Under Judgment Against His Client After Eelation Terminated.</p> <p>6. Where suit against client was brought in 1914 and judgment against her was enrolled the same year, the' entry of which ended the relations between her and her counsel, he claiming compensation' unpaid, a purchase by him under execution sale under sueh judgment in 1917 was not fraudulent.</p>

<p>Eminent Domain — Where No Damages for Occupation Before Payment are Shown, Only Nominal Damages can be had.</p> <p>1. In an action against a railroad company for ejectment and damages for taking possession of land after condemnation and before payment of damages assessed, where there was no evidence of damage by reason of defendant’s occupation, even if wrongful, plaintiff could recover only nominal damages, and the fact that money for the condemned land was subsequently paid to mortgagee under court order is immaterial.</p> <p>Eminent Domain — Judgment Fixing Price Does not Authorize Condemning Party to Take Possession Without Payment.</p> <p>2. A judgment fixing the value of land does not authorize the party condemning to take possession without paying the ascertained value into court as required by law.'</p> <p>Eminent Domain — Owner’s Appeal from Condemnation Judgment Does not Dispense With Necessity of Payment Before- Taking Land.</p> <p>3. The owner’s prompt appeal from a preliminary judgment assessing damages did not dispense with the necessity of the condemning railway company’s paying the damages assessed; for although Section 7104, Ór. L., provides that such appeal shall not prevent the corporation from using the land, yet the compensation must be first assessed and tendered as required by Article I, Section 18, of the Constitution.</p> <p>Eminent Domain — Whether Failure to Object to Condemning Corporation’s Taking Land Without Paying Award Amounted to a License Held not Material Where no Damages Shown.</p> <p>4. Whether owner’s failure to object to condemning corporation’s taking immediate possession of the land and constructing railroad thereon amounted under the circumstances to a license was not material in an aetion by the owners where no damages were shown, particularly whore owners received interest on the original assessment to which they were not morally and legally entitled, and the delay was caused partly by their groundless appeal.</p> <p>Eminent Domain — Delay Held Insufficient to Show Abandonment of Proceedings.</p> <p>5. Where a railroad company had land condemned, and the owner immediately appealed, and pending appeal the company constructed its railroad thereon, its delay in entering the mandate on appeal for a period of nine months and in payment of condemnation money held not to show abandonment by the company of proceedings in which the owner’s appeal was groundless.</p>

<p>Fixtures — Annexation, Adaptation and Intention, the Three Tests to be Applied.</p> <p>1. Ascertainment of whether personalty has been transferred into realty requires the united application of three tests: Annexation, adaptation and intention.</p> <p>Fixtures — Freight Elevator Held a Fixture.</p> <p>2. Freight elevator bolted and attached to building and installed in the manner that freight elevators are'usually installed by owners for the sole purpose of serving the building with the intention to take the elevator with them if they ever moved but without a definite intention to move at the time of its installation, held a fixture in suit against purchaser.</p> <p>Fixture — Considerations, in Ascertaining Intention of Party Making Annexation, Stated.</p> <p>3. The intention of the party making the annexation a? to whether the personalty affixed is to constitute a fixture is to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the construction and mode of annexation, and the purposes and use for which the annexation has been made.</p> <p>Fixtures — More Liberal Rule Applied When Annexation is by Tenant Than When Made by Owner.</p> <p>4. In ascertaining intention of party who made annexation, a more liberal rule is applied when the annexation is made by a tenant than when made by the owner, and an article annexed to the land may be regarded as a trade or domestic fixture, and therefore as personalty, if annexed by a tenant, but may be treated as realty if annexed by the owner.</p> <p>Evidence — Deed Conveys Fixture Notwithstanding Parol Exception.</p> <p>5. A conveyance of real estate will pass the fixtures thereto annexed if there is no exception in the deed of conveyance, notwithstanding a parol exception at the time of the sale, since to give effect to such parol agreement would vary the terms of a written deed.</p> <p>Deeds — Contract Merged in Deed.</p> <p>6. Generally, a contract to convey land is merged in a deed executed in performance thereof, and the deed operates as a satisfaction and discharge of the executory contract.</p> <p>Fixtures — Elevator Excepted from Conveyance hy Contract Did not Pass by Subsequent Deed Containing No Exception.</p> <p>7. Deed did not pass title to freight elevator, though there was no exception stated, where contract executed prior to conveyance excepted the elevator, since such contract operated, as between the parties, to reimpress the elevator with the character of personalty.</p> <p>Fixtures — Parties can Agree That a Chattel shall Retain Its Character as Personalty. \</p> <p>8. Parties can agree that a chattel shall continue to retain its character as personalty, and, though attached in such manner that without such agreement it would lose its. character as a chattel, the agreement will be given effect, as between the parties at least, and the chattel will be deemed to retain its character as personalty, if it can be removed without material injury to the article itself or to the freehold.</p> <p>Fixtures — Grantee Conveying to Third Party Without Excepting Elevator to Which Grantor had Retained Title Liable to Grantor for Conversion.</p> <p>9. Where deed failed to pass title to elevator by reason of previous contract between the parties reimpressing elevator with the character of personalty, the subsequent conveyance of the building by grantee to third party, who had no knowledge that elevator was not a fixture and that grantee had no title thereto, constituted conversion of elevator by grantee, rendering grantee liable to grantor for value of elevator as it constituted part of the building and not its value as torn down for-Removal, since the conveyance to innocent third party passed title to the elevator.</p> <p>Fixtures — Tenant cannot Remove Fixtures After Expiration of Term.</p> <p>19. Generally, a term tenant cannot remove fixtures after the expiration of his term, and the landlord becomes the absolute owner on tenant’s surrender of premises without removal of fixtures, since tenant by failing to remove fixtures abandons the right to so do.</p> <p>8. On the question of chattels attached to land retaining the character of personalty by agreement, see notes in 84 Am. St. Rep. 878, and 1 Ann. Cas. 312.</p> <p>19. On effect of renewing tenancy without reserving right 'to remove fixtures, see notes in 3 Ann. Cas. 331; 20 Ann. Cas. 769; 1 7. R. A. (N. S.) 1193; 17 L. R. A. (N. S) 1135; 48 L. R. A. (N. S.) 294.</p> <p>Fixtures — Tenant’s Right of Removal not Abandoned Where He Continues in Possession Under New Lease.</p> <p>11. The rule that a tenant is required to remove fixtures before expiration of bis term or abandon tbe right to removal does not apply where the lease is renewed for a new term, and the new lease does not per se extinguish the right of the tenant to remove fixtures installed by him under immediately preceding lease.</p>

From Malheur: Dalton Biggs, Judge. In Banc. In substance, tbis is a suit against Emma H. Halliday and her foster son, Wilbur A. Halliday, to set aside a mortgage and a subsequent deed of certain real property given by tbe mother to the son, and to subject the same to the payment of a judgment against her in favor of the plaintiff. The land was subject to the lien of a mortgage in favor of Balfour, Guthrie & Company, about the priority of which there is no dispute.

From Multnomah: Calvin IT. Gantenbein, Judge. Department 2. The defendant is an Oregon corporation, with its principal office in the City of Portland. In November, 1910, M. D. Poyntz was employed as its secretary and cashier, at a salary which was paid from month to month, and he continued in its employ until September 1, 1916.

From Clatsop: James A. Eakin, Judge. Department 1. The Union Fishermen’s Co-operative Packing Company and five other Oregon corporations own and operate in Oregon large, salmon canneries at or near the month of the Columbia River. The defendant Carl D. Shoemaker was, at the time of the 'commencement of this suit, the game warden and master fish warden of the State of Oregon, and it was his official duty tó enforce the game and fish laws of this state.

From Clatsop: James A. Eakin, Judge. Department 1. The defendant was indicted and convicted on a charge of assault and battery, and has appealed.