Volume 99 — Oregon Reports

From Multnomah: William N. Gatens, John P. Kavanaugh and George W. Stapleton, Judges. In Banc. The plaintiffs are different corporations and firms engaged in selling and engraving jewelry, repairing watches and clocks, and setting and cutting stones and agates, at their respective places of business in the City of Portland.

From Multnomah: Robert Tucker, Judge. Department 2. This is an action brought under the Oregon Employers ’ Liability Act (Laws 1911, p. 16) for damages for the death of C. P. Rorvik. The plaintiff is the widow of deceased.

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Department 1.</p> <p>Defendant, Wong Wen Teung, was indicted for the crime of murder in the second degree for shooting and killing one Joseph Gue on March 27, 1917, in Multnomah County. He was tried by the court and a jury, resulting in a judgment of conviction on June 27, 1917, and appeals.</p> <p>„The evidence produced at the trial indicated that Joseph Gue was the proprietor of an oyster-house located on the south side of Madison Street, between Second and Third Streets, in the City of Portland, the premises being known as No. 250 Madison Street. Madison Street runs in an easterly and westerly direction, and is crossed by both Second and Third Streets, the latter being one block west of the former. Jefferson Street runs parallel to, and one block south of Madison Street, and is likewise crossed by Second and Third Streets. At approximately 8 o’clock on the evening of March 27,1917, Joseph Gue and one of his employees, Tony Maravitch, left the oyster-house before mentioned, and while Joseph Gue locked the door thereof Maravitch proceeded to crank a two-seated Ford automobile belonging to Gue and which for some time previous thereto had been standing in front of the oyster-house, facing in an easterly direction. Maravitch thereupon took his place on the left side of the front seat of the automobile, preparing to drive the same, and Joseph Gue seated himself beside Maravitch. As the latter started the automobile in motion an exclamation from Joseph Gue caused Maravitch to look towards the sidewalk alongside the automobile, and at that time he saw defendant take a gun from his pocket and discharge the same into the automobile. A number of shots were fired from the south side of the automobile, and after a brief interval a number from the north side. Maraviteh brought the automobile to a stop near the southwest corner of Second and Madison Streets. The shooting resulted in the death of Joseph Gue and in the wounding of Maravitch.</p> <p>The evidence adduced further purported to disclose that prior to the shooting a small runabout automobile had been standing on the south side of Madison Street hear the intersection of Third Street and defendant was seated therein apparently awaiting an opportunity to carry out his purpose; that when Joseph Gue came out of his place of business, as heretofore related, the runabout automobile was driven easterly on Madison Street to a point near where the automobile of the deceased was standing; and that defendant then jumped from the running board of the runabout and committed the crime for which he stands convicted. After the shooting defendant ran south on Second Street to Jefferson Street, then ran up Jefferson Street to Third Street, and after running south on Third Street some two blocks was captured by Ray C. Blackmar, who had closely followed, and had not lost sight of defendant, from near the scene of the shooting.</p> <p>The defense offered was that of mistaken identity.</p>

<p>Evidence—Inference cannot be Founded upon Inference.</p> <p>1. An inference cannot be founded upon an inference.</p> <p>Evidence—Evidence Held to Raise Presumption That Sheep Herder With Whom Conversation was had was Owner or Owner’s Employee.</p> <p>2. In an action for damages to plaintiff’s grass by the grazing of sheep, evidence that the sheep numbered 1,500 or 2,000, and were worth $15,000 or $20,000 and that they were in charge of a herder who had been seen at defendant’s camp, held to raise the presumption that property of such value would either be in the actual possession of the owner or someone who is employed by him, and the person in charge with whom a conversation was had was either the owner or his employee.</p> <p>Evidence—Evidence as to Conversation With Herder of Sheep Held -Competent in Action for Damages by G-razing.</p> <p>3. In an action for damages to plaintiff’s grass caused by the grazing of defendant’s sheep, evidence of a conversation with the herder who had charge of the sheep held competent.</p> <p>Animals—Evidence Held to Show That Trespassing Steep Belonged to Defendant.</p> <p>4. In an action for damage to grass by grazing of sheep, evidence held sufficient to show that the sheep belonged to defendant.</p> <p>Appeal and Error—Evidence as to Market Value, if Error Because Witness was not Qualified, Held Harmless.</p> <p>5. In an action for damages to plaintiff’s grass by the grazing of defendant’s sheep, evidence by plaintiff as to the market value of the grass and as to the rental value of the land, if erroneous on the ground that plaintiff was not qualified, held harmless.</p>

Prom Multnomah: Henry E. McGinn, Judge. Department 2. Held: and Banis was there a witness. The record of the inquest shows that he there testified: “Q. Was the ground smooth where this occurred? “A. The ground was level all right.” To contradict his evidence at the trial, the defendant offered in evidence a transcript of his testimony taken at the inquest, which contained the above question…

From Yamliill: Harry H. Belt, Judge. Department 2. This is a suit for divorce.

From Deschutes: T. E. J„ Duffy, Judge. In Banc. The plaintiff commenced an action of ejectment against the defendant in the Circuit Court of the State of Oregon in and for the county of Deschutes. The complaint alleges: (1) The nature of the plaintiff’s estate in the real property therein described; (2) that he is entitled to the immediate possession thereof; and (3) that the defendant wrongfully withholds possession of the same from him.

Original proceeding in Supreme Court in mandamus. In Banc. Held: and all property managed, controlled, and disposed of absolute]v by said trustees and their successors under this Declaration of Trust, absolutely and free from all limitations, save and except those specifically set out herein, and said trustees shall have power and authority in conducting the business of this syndicate, to do the…

From Multnomah.: Robert Tucker, Judge. Department 2. This is an action to recover upon two surety bonds given by the defendants to secure the faithful performance of a lease, whereby H. E. Collins as receiver for the Washington Northern Railroad Company leased two locomotives to the J. K. Lumber Company, a corporation, Frederick A. Kribs, and Willard N. Jones.

From Multnomah: William N. G-atens, Judge. In Banc. This is an action to recover damages for breach of a contract to deliver logs to plaintiff, a Washington corporation, at Dorr, Klickitat County, Washington. Defendants interposed a plea in abatement, alleging that plaintiff was transacting business in the State of Oregon without first complying with the statutory requirements regulating foreign corporations.

From Multnomah.: Calvin U. Gantenbein, Judge. Department 1. In substance, tbe complaint states that tbe plaintiff at all the dates mentioned therein was the owner of a certain lot in Portland, and that at the instance of one Brown, representing to him that he conld effect an exchange of plaintiff’s property for a tract of land in Clark County, Washington, known as the “Kangus place,” the plaintiff signed and sealed a deed, leaving blank the name of the grantee, the…

From Crook ^ T. E. J. Duffy, Judge. In Banc. The defendant was convicted of the crime of selling intoxicating liquor, and from a judgment thereon, he prosecutes this appeal.

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

From Multnomah: John P. Kavanaugh, Judge. Department 2.. The plaintiff, Elizabeth Farber, and defendant, F. W. Farber, were intermarried at Vancouver, Washington, on May 7,1914. On August 31, 1918, she filed suit for divorce against him upon the grounds of criiel .and inhuman treatment, in which she asks for the custody of a minor child, John Henry Farber, the issue of the marriage, for alimony, and attorney’s fees.

From Marion: George G. Bingham, Judge. In Banc. This is a suit for a decree of divorce, the complaint being in the usual form and charging desertion. The defendant made default. The district attorney appeared upon the trial, representing the state, and there was a decree dismissing the suit, and plaintiff appeals.

From Lane: George G. Bingham, Judge. Department 2. The complaint in this case is based upon seventeen causes of action assigned to plaintiff for collection. Upon the trial before the court and a jury a verdict was rendered in favor of ,plaintiff. From a judgment thereon defendants appeal.

<p>From Multnomah: William N. Gatens, Judge.</p> <p>In Banc.</p> <p>On motion to dismiss appeal.</p>

From Marion: George G. Bingham, Judge. Department 2. This is a suit to foreclose a lien on 53% cords of wood, in the sum of $83.75. From a decree in favor of plaintiff, defendant appeals.

From Multnomah: Robert Tucker, Judge. Department 1. Tee Guck, the defendant, with others, was indicted in Multnomah County for the crime of murder in the second degree committed by killing Chin Hong. Having been tried separately from his codefendánts, he was convicted, and, being aggrieved at the result appeals.

From Multnomah.: George W. Stapleton, Judge. Department 1. In a separate trial the defendant Shee Fong was convicted of murder in- the second degree on an indictment charging him jointly with Yee Guck, and others, and has appealed.

<p>Equity—Complaint Alleging Several Reasons for Cloud on Title Does not Show Misjoinder.</p> <p>1. A complaint in- suit to remove a cloud from plaintiff’s title does not allege separate causes of suit, though the complaint alleged different reasons concerning the cloud on the title.</p> <p>Quieting Title—Complaint to Remove Cloud on Title Held Sufficient.</p> <p>2. A complaint to remove a cloud on plaintiff’s, title, resulting from a sale on attachment levied after plaintiff purchased but before his deed was recorded, at whieh sale defendants bought the land, which clearly shows that plaintiff’s title has been clouded and that the cloud resulted from defendant’s acts, states sufficient facts to constitute cause of suit.</p> <p>Appeal and Error—Equity Suit Tried De Novo but Judge’s Findings Given Weight.</p> <p>3. Section 159, Or. L., giving the court’s findings the effect of 'a verdict, does not apply to a suit in equity which is governed by Section 405, giving the findings the effect of a verdict, except that on appeal the cause shall be tried without reference thereto, but, though the equity cause is tried de novo, the judge’s findings are given weight.</p> <p>Attorney and Client—Knowledge of Attorney Acquired Shortly Before Employment Imputed to Client.</p> <p>4. The knowledge of a sale of land 'acquired by an attorney by the satisfaction of Ms attorney’s lien thereon from the purchase price is imputed to another client, who shortly after the sale, and-before the deed was recorded, brought suit against the vendor and attached the land.</p> <p>Attachment—Attacking Creditor must Prove He is Bona Fide Purchaser.</p> <p>5. Sections 301, 9874, Or. L., making an attaching creditor a purchaser in good faith from the date of attachment, does not relieve such creditor of the burden of proving that he is a dona fide purchaser by proof that he had a valid debt and that the attachment was regularly procured.</p>

From Yamhill: Harry H. Belt, Judge. Department 1. The plaintiffs are husband and wife, and all the parties are of Herman birth, the defendant coming to America many years prior to the plaintiffs. For about thirteen years they were close personal friends. At the particular times alleged, the plaintiffs were the owners of, and operated, a small dairy farm near Portland, and the defendant lived upon his farm in Yamhill County, Oregon.

From Union: John W. Knowles, Judge: In Bane. The defendant, Frank Turnbow, and Kathryn Moss were jointly indicted by the grand jury of the State of Oregon in and for Union County, charged with the crime of, assault with intent to rob one John L. Neeley.

From Douglas: James W. Hamilton, Judge. Department 1. The substance of the complaint is that the parties entered into an agreement whereby the defendant should deliver to the plaintiff 250,000 feet of lumber at the price of $10.50 per thousand, to be paid by the plaintiff, and that the defendant refused to deliver the lumber, whereby the plaintiff has been damaged in a sum mentioned.' Aside from admitting the corporate character of the defendant, the answer denies all of the…

From Multnomah: Robert G. Morrow, Judge. Department 2. Plaintiff brought this action against defendant, alleging that she employed him as her attorney in April, 1914, to assist in the defense of a case then pending against her in the District Court of the United States for the District of Oregon; that he conducted the case to final determination; that on December 15, 1915, plaintiff and defendant had an accounting together as to the amount due plaintiff for such services,…

From Clackamas: James U. Campbell, Judge. Department 1. George L. Moore and Russell Brake were jointly indicted for the crime of murder in the second degree. The indictment accused Moore and Brake of having killed Harry Dubinsky by beating him on the head and body with “some instruments and weapons” and throwing him into the Willamette River. Moore pleaded guilty and was sentenced to the penitentiary for life.

From Multnomah.: William N. Gatens, Judge. In Bauo. This is a suit to foreclose a chattel mortgage, and incidentally to restrain the sheriff from selling the mortgaged property upon execution, under a judgment in favor of another creditor. The defendant mortgagor made default, and the defendant sheriff, appearing for himself alone, filed a demurrer to the complaint and a motion to dissolve the restraining order which had been issued.

<p>Bankruptcy—Trustee may Maintain Suit Against Dummy Holder of Assets.</p> <p>1. Under Bankruptcy Act, Section 70, subdivision “e” (U. S. Comp. Stats., § 9654), trustee of bankrupt may maintain a suit for the appointment of a receiver and the marshaling of the assets of defendant, it being a mere dummy and nothing more than an agent of bankrupt, its ássets being and always having been, at least equitably, bankrupt’s property, and they being in danger of being dissipated and fraudulently made away with to the injury and depletion of bankrupt’s estate and the detriment of its creditors.</p> <p>Pleading—Stating Acts Necessarily Fraudulent Sufficient Allegation of Fraud.</p> <p>2. Fraud may be pleaded by the allegation of aets necessarily fraudulent, without use of the term “fraud” or “fraudulently.”</p> <p>Courts—Suit in State Court by Trustee in Bankruptcy Held not Prevented by Proceeding in Federal Court.</p> <p>3. Suit in state court by trustee in bankruptcy to marshal assets is not prevented by some proceeding having been attempted in federal court to get an accounting as to such assets, it not appearing it w.as a suit to marshal assets, and there being no plea o.f pend-ency of another suit against defendant.</p> <p>Bankruptcy.—Complaint of Trustee Held to State a Case for Discovery and Marshaling Concealed Assets of Bankrupt.</p> <p>4. Complaint of trustee held to state a ease for discovery and marshaling concealed assets of bankrupt on the theory that defendant was a mere agent of bankrupt, having no assets of its own, but doing business on bankrupt’s assets, and that it was fraudulently disposing of the assets in such way that they would be lost to bankrupt’s estate.</p>

<p>Heading—Action by Buyer for Breach of Contract Held to Sound in Tort and not to be One on an “Account.”</p> <p>1. An action by the buyer of a hotel for'the seller’s breaeh of contract which stipulated that the heating plant would be in good order, the premises clean, and the bedding and linens in order, is one sounding in tort and not an action of account; consequently the buyer could not be required, under Section 84, Or. L., to give a detailed statement of the items sued on, the section being applicable only to actions of account, and the term “account” referring to items of debit and credit arising out of the performance of the contract.</p> <p>Sales—“Warranty” Defined.</p> <p>2. A “warranty” is the obligation by which one contracts to defend another in some action to be instituted against him or an agreement collateral to the. main purpose of the contract, or a more or less unqualified promise of indemnity against a failure in the performance of a term in the contract.</p> <p>Sales—Reliance upon Warranty Need not be Pleaded Where the Warranty is as to Future Performance.</p> <p>3. The rule that it is necessary to allege reliance on and deception 'by the warranty pleaded, while applicable to a warranty of present quality of article sold, because negativing buyer’s acceptance with knowledge of defects, is inapplicable to a case where.the warranty alleged is the seller’s representation that he will perform some aet in the future; so no pleading of reliance upon the warranty was required where the warranty pleaded was that the seller of a hotel lease and furniture and fixtures, on delivery of the property some ten days after the sale, “shall have the * * property in good clean condition, * * and that the steam-heatin g and hot-water plant * * are in good operating condition at the time said vendee takes possession.”</p> <p>Pleading—Allowance of Amendment Asserting Reliance on Warranty of Seller not Error.</p> <p>4. In an action by tbe buyer for breach of the seller’s agreement for a sale of hotel, which stipulated that the heating plant was in good order, it was not improper to allow an amendment of the complaint averring the buyer’s reliance on the warranty, for Section 97, Or. it., declares that no variance shall be deemed material unless actually misleading, while Section 98 provides that when the variance is not material the court may direct either the fact to be found according to evidence or an immediate amendment; it being obvious that the buyer did rely on the warranty.</p> <p>Sales—Buyer has an Election to Keep Property and Recover Damages.</p> <p>5. Where the seller of a hotel agreed that the heating plant was in good order, etc., the buyer, after going into possession, may elect to keep the property and recover damages, although the heating plant, etc., was not in good order..</p> <p>Sales—Question Whether Heating Plant of Hotel was in Good Order Held for Jury.</p> <p>6. Though defects in heating plant of hotel were not discovered immediately on transfer of possession, yet, where the boiler tubes were, a few weeks- later, found to be exceedingly rusty, that fact is sufficient to take to the jury the question whether the plant was in good order at the time of the sale.</p> <p>Appeal and Error—Finding of Jury Conclusive.</p> <p>7. Pact finding of the jury supported by the evidence is conclusive on the appellate court.</p>

From Benton: George F. Skipworth, Judge. Department 2. This is a suit commenced by the plaintiff against the defendants to set aside three deeds and a transfer of personal property made by Samuel McLain to the defendant Philomath College, a United Brethren institution, whereby the entire estate of plaintiff’s intestate, Samuel McLain, was transferred during the latter years of his life to the defendant Philo,\ath College, leaving nothing for the payment of his creditors.

From Lane: James W.- Hamilton, Judge. Department 2. The substance of the contest here is that the defendant Floyd M. Day foreclosed a mortgage upon the property of the plaintiff. An execution was issued on the decree, and the realty in question was sold to the defendant Edythe V. Day.

From Multnomah: John P. Kavanaugh, Judge. Department 1. The complaint is for slander. It contains two counts of defamatory language.

From. Jackson: Frank M. Calkins, Judge. In Bane. May 20, 1908, C. M. Dann conveyed by warranty deed ' to Margaret J. Rumsey, together with other property, Lots 13, 14, and 15 in Block 4 of Crowell’s Addition Amended, to the City of Medford, in the State of Oregon, and the deed was duly filed for record September 30, 1908.

From Multnomah: William N. Gate ns, Judge. In Banc. This is an action at law to recover money. Upon stipulation of the parties, it was tried by the court without a jury. The substance of the complaint is that during August and September, 1918, plaintiff sold and delivered to defendant certain automobile tires and a tube at the agreed price of $357.98, of which $7.50 has been paid, leaving a balance of $350.48 unpaid, for which judgment is asked.

From Tillamook: George R. Bagley, Judge. Department 1. The plaintiff; began a snit against th'e Comstock Manufacturing Company and Robison, asking, among other things, to have canceled an assignment of a contract which he alleged had been made over to the Tillamook County Bank and defendant Robison as collateral security for indebtedness owing by plaintiff to said assignees, which indebtedness had been fully discharged. Personal service was made upon Robison August 23, 1919.

From Lane: George F. Skipworth, Judge. Department 1. The complaint is in replevin.

From Multnomah: William N. Gatens, Judge. Department 2. This is a suit in equity commenced hy the United States National Bank in the Circuit Court of the State of Oregon in and for Multnomah County, for the purpose of foreclosing a mortgage executed by Ada E. Nickles and BL T. J. Nickles, her husband, to secure their negotiable promissory note bearing-date December 30, 1909, payable to the order of Frank Holton, for the sum of $2,400.

<p>Comities—County Court has Authority to Contract for Courthouse.</p> <p>1. Under Section 937, L. O. U., the County Court has authority to contract for the -building of a courthouse, subject only 'to the limitation as to indebtedness prescribed by the Constitution.</p> <p>Counties—Contract of County Court for Courthouse Reviewable by Court Only for Illegality or Fraud.</p> <p>2. The act of the County Court, as fiscal agent for the eounty, in contracting for the building of a courthouse, can be disturbed by a court only for illegality or fraud.</p> <p>Counties—No Fraud Shown in Contract of County Court for Courthouse.</p> <p>3. Evidence held to show no fraud of a County Court in contracting for building of a courthouse, the circumstances allowing of an hones't difference of opinion as to whether it should be built or another completed.</p> <p>Counties—Contract for Courthouse not Terminated, Notice by County Court not Being Served.</p> <p>4. There being outside of the journal entry of a County Court, to the effect that -a contractor for building a courthouse should cease work on the contract, and that t'he county would not be responsible for the purchase of any more material, no, evidence that it was ever served on the contractor, or that he ever had any personal knowledge of it, it would not have any legal effect to terminate the contract.</p> <p>Counties—Contractor for Courthouse no.t Required to Quit Valid Contract and Sue for Damages on Notice of Cancellation.</p> <p>5. A contractor having -a valid contract with a county for construction of a courthouse, payable out of a special courthouse fund, need not cease work and sue for damages where, after partly performing the contract and making expenditures and incurring liabilities thereon, he receives notice from the county that the contract is null and void for specified reasons and therefpre canceled; a judgment for the breach not being payable out of the special fund, and the county not having other funds and 'having reached its limit of indebtedness.</p> <p>Counties—Valid Contract for Courthouse not Terminated by Notice from County Court That It is Invalid and Canceled.</p> <p>6. A valid contract with a eounty for construction of ',a courthouse is not terminated by a notice from the county, not recognizing that the contract ever had validity, but declaring it null and void for specified reasons, -and therefore canceled.</p> <p>Counties—Contract for Courthouse Construed, as Made With Reference to Special Courthouse Fund.</p> <p>7. A contract with a county for construction of a courthouse, containing no provision as to the source of payment, is to be construed as made with reference to a special' courthouse fund, from which only payment could be made.</p> <p>Counties — Funds from Levy for New Courthouse Construction Available for Subsequent Contract.</p> <p>8. Where, for several years, when a county had an uncompleted courthouse, the published budgets, under Budget Law, provided simply for a levy for “new courthouse construction,” and levy was so made, the money so collected and allowed to accumulate was available for another courthouse thereafter contracted for by the county.</p> <p>Counties — Levy for New Courthouse Construed With Published Budget for Courthouse on a Certain Lot.</p> <p>9. A levy, though made simply for “new courthouse construction,” is to be construed with 'the corresponding published budget providing for a levy for completion of courthouse on a certain block, so that the taxes raised thereby are not available for payment of a courthouse on another block, contract for which had theretofore been made.</p> <p>Counties—Contract for Courthouse Held Legally Entered into.</p> <p>10. Contract for a courthouse held legally entered into, all the proceedings therefor having been at a regular or adjourned meeting of the County Court, held in the county courtroom, in which all the members participated, the contract being awarded apd signed by a majority of the members.</p> <p>Counties—Special Courthouse Construction Fund not to be Used for Protection and Preservation of Another Courthouse.</p> <p>11. No part of a special courthouse fund, with reference to which as the source of .payment a contract was made with the county for construction of á courthouse, should be used for protection and preservation of another uncompleted courthouse, but payment for such care should be from a subsequent levy for the use of that building.</p> <p>Counties—Fees of County’s Attorneys Defending Suit for Payment for Courthouse not Payable from Courthouse Fund.</p> <p>12. Fees for attorneys for the county in a suit against it for payment for construction of a courthouse should not be paid from the special courthouse construction fund.</p> <p>Counties—Costs of Plaintiff in Suit for Payment by County for Courthouse Payable Out of County’s General Fund.</p> <p>13. Costs and disbursements awarded plaintiff seeking to enforce payment by a county out of a special courthouse fund for construction of a courthouse are a claim against the county payable out of its general fund.</p> <p>13. On question of liability of county for costs, see note in Ann. Ca». 1914B, 892.</p>

<p>Appeal and Error—Certificate That Bill of Exceptions Contains All Evidence Offered Held Insufficient.</p> <p>1. A certificate that a bill of exceptions contains “all the evidence offered by the plaintiff” is insufficient, in that it does not negative the fact that the defendant may have offered evidence on which the verdict was based.</p> <p>Landlord and Tenant—One Claiming Under Lessees cannot Deny Lessor’s Bight to Possession on Expiration of Lease.</p> <p>2. Where a lease has expired, one claiming under lessees cannot deny lessor’s right to possession, since his rights are no greater than lessees’.</p> <p>Landlord and Tenant—Evidence Held to Show Lessor Entitled to Possession of Premises.</p> <p>3. In forcible entry and detainer by a lessor against one claiming under lessees, evidence held to show plaintiff entitled to possession.</p> <p>Landlord and Tenant—Description of Property in Forcible Entry Sufficient.</p> <p>4. In action in forcible entry and detainer, a description of property as “approximately sixty acres of land and buildings thereon situate about one mile in a northwesterly direction from” a town on a named road, and known as the S. farm, held to be a description “with convenient certainty,” as required by Section 2535, Or. L., where the farm had been known by such name for 40- years.</p> <p>Guardian and Ward—Guardian may Sue in Forcible Entry and Detainer for Possession.</p> <p>5. In view of Sections 1319, 1321, Or. L., where a guardian of an incompetent is vested with the right to possession of land, he may sue in his own name on behalf of the ward in forcible entry and detainer, since the right is one belonging to the guardian; the action being purely possessory.</p>

From Clatsop: Jambs A. Eakin, Judge. In Banc. This is an action at law, wherein the complaint alleges the execution and delivery, by defendants to plaintiffs, of six promissory notes of the aggregate face value of $375, no part of which has been paid.

<p>Certiorari—Municipal Corporations—Court Limited to Record Certified on Review of Reassessment Where Petition and Return Defective; No Demurrer for Defective Petition, as Only Remedy is Motion to Quash or Order of Court.</p> <p>1. A writ of review is allowed on a petition ex parte, the only answer to the writ being return, and no demurrer will lie for any defect of the petition, tne only remedy therefor being a motion to quash the writ, or order of the eourt under Section 610, Or. L., fox-further return, if the writ be incomplete, and, where the petition to review the city's reassessment for street paving remains defective, the court is limited to an examination of the city’s own record to determine if there was error.</p> <p>Municipal Corporations—Assessment of Easements for Street Paving Held Improper.</p> <p>2. A right of way within or outside of a street is not a lot or parcel of land, but only an easement not assessable for street improvements, in view of Portland City Charter-, Sections 374, 383a, 389, 394, 400, and its having been erroneously assessed warranted the city council in determining the assessment invalid and reassessing.</p> <p>Municipal Corporations—Record Held not to Show Objections to Reassessment Because of Agreement for Payment by Installments.</p> <p>3. In a proceeding to determine the validity of a reassessment for street paving, record held not to show any objection made on the ground that property owners had been granted leave to paythe assessment installments with interest under the Bancroft Act, and that a contract between them and the city had been established, the obligation of which would be violated by reassessment.</p> <p>Municipal Corporations—Letters of Protest Held not Valid Objections to Paving Reassessment.</p> <p>4. In a proceeding by a city for reassessment of lots for paving improvements, letters of protest to a syndicate which had sold lots guaranteeing the amount of assessment against each and asking that the syndicate stand any increase were not a protest to the city council, and the syndicate’s expressed desire that the council confine the assessment exclusively to its own property so as to protect itelf against its purchasers was not a valid objection to reassessment.</p> <p>Municipal Corporations—Record upon Reassessment for City Paving Held to Show Objections were Considered.</p> <p>5. Upon review of proceedings of the city council for reassessment for street paving, a contention that the city council did not pass upon objections to reassessment held not sustained by record, which indicates that the owners had every opportunity to be heard.</p> <p>Municipal Corporations—Council Held Within Its Jurisdiction in Reassessing for Street Paving.</p> <p>6. In a proceeding to review a reassessment by the city council for street paving, held that the council did not exceed its jurisdiction in the matter of reassessment; the first assessment being invalid for error.</p>

From Yamhill: Harry H. Belt, Judge. Department 2. From the record we learn that this is an action of claim and delivery, wherein the plaintiff seeks to recover possession of a Ford motor vehicle. It appears that one A. J. Syron was the owner of the vehicle in question; that on November 25, 1918, he made application to register the car for the year 1919 and a license covering that year was issued to him by the Secretary of State.

From Washington: John P, Kavanaugh, Judge. Department 1. The parties to this action are corporations. The plaintiff exists by virtue of the laws of Oregon, and the defendant by those of Wisconsin. The substance of the complaint is that in April, 1918, the defendant sold to the plaintiff a Mogul tractor for a price paid by the plaintiff.

From Tillamook: George R. Bagley, Judge. Department 2. Plaintiff, Sarah Hickey, brought an action in ejectment against defendant, Clay Daniel, for the possession of a triangular piece of land claimed by plaintiff as a part of lot 6, or the N. W. % of the S. W. % of section 6, Tp. 2 N., R. 9 W., W. M. The tract is in the possession of defendant, and is claimed by him as a part of lot 5, or the S. W. % of the N. W. % of section 6.

From Multnomah: John P. Kavanaugh, Judge. In Banc. The plaintiff, Winnie Epplett, is attempting in this action, brought against the Empire Investment Company, Inc., a corporation, to recover installments paid by her on a land sale contract. The parties consenting, the canse was tried to the court without the aid of a jury. There was a judgment for the defendant, and the plaintiff appealed. There is no bill of exceptions. There is no transcript of evidence.

From Marion: George G. Bingham, Judge. In Banc. This is an appeal from the judgment on a verdict for $718.67, returned by the jury in the trial of J. W. Collins and A. M. Bolter, Plaintiffs and Respondents, v. United Brokers Company, a Corporation, Defendant and Appellant.

From Multnomah: Harry H. Belt, Judge. Department 1. Plaintiff brought this action to recover $911.70, based upon an adjustment and agreement to pay that amount for a loss on a building occasioned by fire. The building was insured by the defendant company by a policy issued in 1915. The cause was tried before the court and a jury, and a verdict rendered in favor of plaintiff. The defendant appeals from a judgment rendered thereon.

From Multnomah: Robert Tucker, Judge. Department 2. The defendant was indicted, tried, and convicted of forgery, and sentenced to the penitentiary.

From Multnomah: Harry H„ Belt, Judge. Department 2. Plaintiff instituted this action against the defendants to recover damages for a personal injury-alleged to have resulted from negligence of the defendants in not providing a head-stop for the ele-vator on the first floor of the Tilford Building, a five-story office building situated at the northwest corner of Tenth and Morrison Streets, Portland, Oregon, of which building the defendants are owners.

From Multnomah.: George Tazwell, Judge. Department 2. J. L. Hartman and E. L. Thompson are partners, doing business under the firm name of Hartman & Thompson. November 22, 1918, the firm commenced an action in the Circuit Court of Multnomah County against W. T. Lambert, to recover the amount of his certain note, interest, and attorney’s fees.

Prom Multnomah: Robert Tucker, Judge. Department 2. The plaintiff, as a real estate broker, procured from the defendant a contract, of which the following is a copy: “To M. H. Becker: “For receipt of one dollar, receipt of which is acknowledged, we hereby appoint yon agent to make sale of the following described real property, to wit: The west half of the northeast quarter, and the northwest quarter, and the west half of the southwest quarter, all in section 26, township…

<p>Easements—-Fee Owner has Right of Use Consistent With Easement.</p> <p>1. The rights of the owner of an easement in the land of another are measured by the purpose and character of that easement, and, so far as is consistent therewith, the right to use the land remains in the owner of the fee.</p> <p>Easements—Extent to be Determined, from Grant or Reservation Under Circumstances.</p> <p>2. The extent of an easement should be determined by construction of the grant or reservation by which it is created, aided by circumstances showing the intention of the parties.</p> <p>Easements—Without Specific Definition Use is Limited to Purpose.</p> <p>3. If the grant of an easement is specific in its terms, it is decisive of the limits of the easement; but, if such limits are not specifically defined therein, the easement is only such as is reasonably necessary and convenient for the purpose for which it was created.</p> <p>Easements—Burden on Servient Estate not Increased After Grant.</p> <p>4. The servient estate will not be burdened to a greater extent than was intended at the time of the creation of the easement.</p> <p>Easements—Eight of Servient Owner to Maintain Gates Depends on Terms and Circumstances.</p> <p>5. The grant of an easement for a way without reservation of right to maintain gates does not necessarily preclude the maintenance of such gates, but the question whether the grantee is entitled to an unobstructed way depends on the terms of the grant, its purposes, nature and situation of the property, and the manner in which the way has been used.</p> <p>Easements—Servient Owner cannot Materially Interfere With Easement.</p> <p>6. The owner of the servient estate cannot make any alterations in his property by which the enjoyment of the easement will be materially interfered with.</p> <p>Easements—Words in Grant Given Ordinary Meaning.</p> <p>7. When there is no ambiguity, the words in the grant of an easement should receive their plain ordinary meaning, unless it appears by the context that they were used in a different sense or unless, when applied to the subject matter, they have a technical meaning.</p> <p>Contracts — Express Exception or Reservation Raises Presumption Against Others.</p> <p>8. Where there is an exception or reservation of one thing, it is presumed that no other exceptions or reservations are intended.</p> <p>Contract's—All Words are to be Given Effect.</p> <p>9. Every word or clause in a written instrument should be given its sufficient effect, if possible to do so.</p> <p>Easements—Grant of Gateway to be Used as “Road of Public Easement” Authorizes Only Existing Gates.</p> <p>10. Where an owner of land conveyed to a grantee from him, who was entitled to a way of necessity, for an additional valuable consideration, a gateway across his land to be used as a road of public easement, the words “gateway” and “road of public easement” were apparently used with a view to Section 4610, Or. L., permitting either a public road or a gateway which was referred to in tie title as a road of public easement, and the expression “road of public easement” means a road which not only the grantee but also the public in general has a right to use, so that the grantor’s successors could not burden the easement with gates in addition to those existing across it at the time of the grant, especially where the grantor protected his rights by other express reservations.</p> <p>3.. On extent of indefinite easement as affected by the extent to which it has been used, see note in 5 L. R. A. (IT. S.) 851.</p> <p>5. On the question of right to maintain gates or bars across right of way, see notes in Ann. Cas. 1914D, 770; 48 L. R. A. (JT. S.) 87.</p> <p>6. On the question of duration of easements appurtenant, see note in 20 L. R. A. 631.</p> <p>Easements—Way of Necessity Implied from Grant of Inaccessible Part of Land.</p> <p>11. Where a traet of land is conveyed to which there is no means of access except over the remaining land of the grantor, a way of necessity over the grantor’s land is implied by law which is fixed in the grantee as an appurtenance to the estate granted and which cannot be divested by a subsequent conveyance of the remaining land by the grantor.</p>

From Multnomah: George Tazwell, Judge. Department 1. Napoleon Le Gault died in Multnomah County on June 6, 1918, leaving an estate consisting of both real and personal property. His heirs at law were the contestant, a daughter, and Chester Oliver Le Gault, a grandson.

From Lane: George F. Skipworth, Judge. In Bano. The defendant was indicted by the grand jury of Lane County upon a charge ol murder in the second degree alleged to have been committed on July 25, 1919, by unlawfully, purposely, and maliciously shooting one Charles L.. Taylor with a rifle.

From Marion: Percy R. Kelly, Judge. Department 2. The complaint avers a cause of action in the usual form of replevin, based upon the taking of nineteen head of sheep by the defendants on August 5, 1919. The answer admits that the plaintiff is the owner of the sheep and that they were of the value as stated in the complaint, but otherwise, except as thus admitted and as alleged in the defendants’ further and separate answer, the entire complaint is denied.

<p>Highways—Charge for Horse Feed and Employees’ Board, Furnished Eoad Contractor, Held Proper Charge Against Surety—“Supplies”—“Provisions.”</p> <p>1. In a materialman’s action on a contractor’s bond, conditioned for the payment of persons furnishing supplies or provisions for carrying on the work, an amount due for horse feed furnished was a proper charge against the surety and was properly allowed, and so also was the amount due for feeding the contractor’s employees.</p> <p>Highways—Expenses for Tobacco Furnished Eoad Contractor’s Employees not a Proper Charge Against Surety.</p> <p>2. In a materialman’s action on a contractor’s bond, conditioned for the payment of persons furnishing supplies or provisions for carrying on the work, an amount due for to'bacco, cigars and cigarettes furnished the men held not supplies or provisions necessary to the prosecution of the work, and not to constitute a proper charge.</p> <p>Highways—Purchase Price of Knives, Forks and Dishes not Proper Charge Against Eoad Contractor’s Surety.</p> <p>3. Expenses for procuring knives, forks and dishes held properly disallowed as a charge against the contractor’s surety; such articles not necessarily being consumed or destroyed in the prosecution of the work.</p> <p>Highways—Variance Between Complaint and Proof, in Material-man’s Action on Eoad Contractor’s Bond, Held not Material.</p> <p>4. In a materialman’s action on a road contractor’s bond for material furnished in the prosecution of the .work, where the complaint alleged that the materials were furnished the contractor individually and the proof showed that such contractor had a partner who also became liable for materials, the variance held not so material as to mislead defendant surety.</p> <p>1. On the question of liability on contractor’s bond for labor or material employed in the work, but not by order of the principal, see note in 43 L. E. A. (H. S.)</p>

<p>Master and Servant—Slight Oversale by Salesman Held not Cause for Refusing Compensation for Entire Order.</p> <p>1. Where a traveling salesman’s contract of employment provided that, if he sent an order in excess of his allotment of goods to be sold, “the item will be taken oif the salesman’s order, and if shipped the salesman will not receive credit,” the employer was not authorized, where an item of a few dollars was in excess of the allotment, to refuse to compensate the salesman for the whole order, especially where the employer turned such orders over to its mailing department and received the benefit of the salesman’s work.</p> <p>Master and Servant—Employer must Exercise Good Faith in Refusing Orders upon Which Compensation is Based.</p> <p>2. Under a contract between a traveling salesman and his employer providing for commissions on orders accepted and shipped, acceptance and shipment are within the employer’s discretion, fairly and honestly exercised, he not being bound to accept and ship at all events, nor has he the absolute right of refusal, it being a question of good faith, having regard to the employer’s right to determine the scope and extent of his business.</p> <p>Master and Servant—Salesman’s Verdict for'Commissions Warranted.</p> <p>3. In an action by a traveling salesman for commissions upon orders taken, evidence held sufficient to support a verdict for plaintiff.</p> <p>Appeal and Error—Court’s Fact Findings Conclusive When Supported by Competent Evidence.</p> <p>4. If fact findings by the court are supported by competent evidence, they are conclusive on appeal.</p> <p>Account Stated — Transaction must be Final Adjustment of Respective Demands to Constitute “Account Stated.”</p> <p>5. To constitute an “account stated,” each party must understand the transaction as a final adjustment of the respective demands between them, taken into consideration in the accounting, and binding force will not be given to the mere furnishing of an account which was not with a view of establishing a balance due, or finally adjusting the matters of account between the parties.</p> <p>Account Stated—Monthly Statement by Employer to Employee as to Commissions, not Assented to, Held not an “Account Stated.”</p> <p>6. Where an employer sent monthly statements to its traveling salesman to which the latter did not assent, purporting to cover commissions due, such statements, in an action by the salesman to recover commissions, held not to have the finality of an account stated.</p> <p>5. Authorities discussing the question as to what constitutes an account stated are collated in. notes in 20 Ann. Cas. 626; 27 L. R. A. 811.</p>