served with a subpoena, unless his residence be within 20 miles of the place of trial, except that, in an action pending in a court of record, the court or judge thereof, upon the affidavit of the party, or some one on his behalf, showing that the testimony of the witness is material, and his oral examination important and desirable, may indorse upon the subpoena an order for the attendance of the witness; the service of such subpoena and order, and the payment of double fees to the witness, are sufficient to require his attendance, if he be served within the state. Hill's Ann. Laws Or. 795. The process by which the attendance of a witness is secured is a subpœna issued by the clerk; and this is sufficient to require his attendance, if properly served in the county in which he is required to attend for examination, or at any place within the state, if not more than 20 miles of the place of trial. But, when the personal attendance of a witness residing beyond these limits is required, it can only be procured by the service of a subpœna bearing the indorsement of an order by the court or judge thereof requiring his attend. ance. The basis of this order is an affidavit of the party, or some one on his behalf, showing that the testimony of the witness is material and his oral examination is important; and, in our opinion, when such affidavit follows the language of the statute, the sufflciency of the order based thereon cannot be questioned by the losing party in the litigation, upon objections to a cost bill. The affidavit is made for the information of the court, and, if it is sufficient to satisfy the court or judge of the necessity or desirability of or dering the attendance of a witness residing beyond the reach of an ordinary subpoena, the conclusion or judgment cannot be challenged in a proceeding of this character.

It is also contended that the amended verified statement does not sufficiently show the materiality and necessity of the testimony of the witness; but this objection seems to overlook the fact that the statement avers that Burrows is the only one of the plaintiffs with whom the defendants negotiated in regard to the sale of the property, and that Porter would testify that he told Burrows, prior to the purchase, of the true state of the title. This is undoubtedly a sufficient showing as to the materiality of the testimony. We do not understand the statute to require that, before the party can obtain an order for the personal attendance of a witness, the necessity for his testimony must be made to appear. The only requisite is a showing that his testimony is material and his oral examination important and desirable, and because a party may have other witnesses who will testify to the same facts is no reason why he may not be entitled to the order referred to in section 795. Moreover, the court, on the motion to retax costs, found as a fact that the testimony of Porter was material and relevant, and his oral examination important and desirable.

We come, then, to the principal issue in the

case.

The statute provides that the service of a subpoena "is made by reading and showing the original, and delivering a copy or ticket containing its substance to the witness personally, giving or offering to him at the same time the fees to which he is entitled for travel to and from the place designated, and one day's attendance there" (Hill's Ann. Laws, §792), and that a witness residing out of the county, and more than 20 miles from the place of trial, is only required to attend upon the service on him of a subpoena, with an order of the court indorsed thereon requiring his attendance, "and the payment of double fees" (Id. § 795). It will thus be seen that the "fees" required to be paid a witness in order to compel his attendance in obedience to an ordinary subpoena include both mileage and per diem; and, in our opinion, the word is used in the same sense in section 795. Both sections 792 and 795 refer to the same subjectmatter, are a part of the same act, and should be construed together. By the former, the legislature defined the word "fees," so that its significance as used in the act is clear and unambiguous, whatever it may mean in other statutes. When, therefore, in a subsequent section, it provides that, in order to compel the attendance of a witness residing out of the county, and more than 20 miles from the place of trial, he shall be paid "double fees," it plainly indicates double the fees required in ordinary cases. If section 795 is to be construed independently of the context, and the word "fees" held to include per diem only, as contended for by the plaintiffs, a witness residing 200 miles from the place of trial could be compelled to attend on the payment of only four dollars, while a witness residing but 20 miles distant would be entitled to six dollars. Unless the word "fees," as used in the section, includes mileage, no provision is made for its payment to a witness residing beyond the limits of an ordinary subpoena. If, on the other hand, it does include mileage, such a witness is manifestly entitled to double the ordinary rate. Section 795 has never been directly before this court for construction, although it has been intimated and assumed in more than one instance that it required the payment of double mileage to a witness attending in obedience to an order of the court. In the early and leading case of Crawford v. Abraham, 2 Or. 163, it is said: "Mileage will be allowed, of course, to witnesses residing be yond the reath of an ordinary subpoena within the state, unless objection is made thereto, in which case a showing must be made to sustain that item, equivalent to that which is necessary under section 785 [now 795] of the Code, to procure a special subpoena. would certainly be better for a party to pay such single mileage for a witness, than to force a party to procure a special subpoena, and thereby incur, under section 785, the liability to pay double mileage and attendance." Again, in Sargent v. Umatilla Co., 13 Or. 442, 11 Pac. 225, it was assumed by counsel and

It

the court that in a civil case a witness residing outside of the county, and more than 20 miles from the place of trial, who attended in obedience to an order of the court, was entitled to double mileage; the point controverted being whether the same rule applied to a witness in a criminal case. The court thus states the proposition: "The appellant's counsel contends that witnesses, in all cases in criminal actions, are only entitled to one rate of fees, which is prescribed In section 20, Act Oct. 24, 1864, of Miscellaneous Laws [2 Hill's Ann. Laws, p. 1117]; while the respondent's counsel contends that, as witnesses brought from another county in civil cases are entitled to double fees and mileage, they ought to be allowed the same rate in criminal cases." And again: "The respondent has no ground to stand upon in the case, except to claim that the legislature must have intended that a witness required to attend from another county should have the same fees in a criminal as in a civil case; but it seems to me that, if the legislature had so intended, it would have provided therefor expressly." It was held that a witness in a criminal case is only entitled to single mileage, on the ground that the Criminal Code expressly provides that section 795 shall not apply to criminal cases. See Cr. Code, 1518. While these expressions of the court may be regarded as dicta, and not conclusive, they indicate the opinions of our predecessors as to the proper construction of section 795, and accord with its manifest purport and intent. If, as counsel argue, the fees allowed are exorbitant or excessive, the remedy is with the legislature, and not the courts. The Judgment of the court below is therefore reversed, and the cause will be remanded to the court below, with directions to allow double mileage for the witness George F. Porter, as claimed.

CONTRACTS-SALE OF REAL ESTATE-STATUTE OF FRAUDS-COMPLAINTTHEORY OF LEASE.

1. Defendant signed a memorandum of an agreement as "Price, to the sale of land: $6,000. C. pays note for $200. Deed to be special warranty, and C. pays for cablegrams. Money. to be paid on or before 40 days. Possession when inoney paid and deed given to W.; farm 297 acres, more or less, as shown by deed. Abstract furnished." Held insufficient for indefiniteness, under Hill's Ann. Laws, § 785, providing, on an agreement for the sale of real property, for a memorandum thereof expressing the consideration, and subscribed by the party to be charged.

2. Where, in an action to recover for breach of an agreement to sell real estate, the written memorandum signed by defendant does not support the allegations of the complaint, the action should be dismissed.

3. Where plaintiff sued to recover for breach of a contract to sell real estate to him, on which he had paid $20 of the purchase price, and defendant alleged that the agreement

was merely an option, plaintiff is not entitled to recover the $20 on defendant's theory of the case, since he must recover on his own theory or not at all.

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by S. B. Catterlin against A. Bush. From a judgment for defendant, plaintiff appeals. Affirmed.

For former opinion, see 59 Pac. 706.

The complaint herein states a cause of ac tion, in brief, as follows: That A. Bush is doing business under the firm name of Ladd & Bush. That about September 13, 1897, the defendant represented that he was the owner of a farm commonly known as the "B. A. Wetzel Farm," located in section 16, township 8 S., range 2 W. of the Willamette meridian, in Marion county, Or., containing 297 acres, and the hay then in the barn situate thereon, and, under the name of Ladd & Bush, entered into a mutual agreement with the plaintiff whereby he undertook and agreed to convey said farm, including the summer fallow and the hay in the barn, to such third person as plaintiff might designate, within 40 days, and deliver to plaintiff a certain note executed by his wife to the defendant for $200, and to furnish plaintiff within a few days a complete abstract of title to the premises; that, in consideration of defendant's agreement, the plaintiff agreed to pay defendant for said property the sum of $6,000; that plaintiff informed defendant at the time, and it was mutually agreed, that plaintiff should sell said premises and property to a third person as soon as said abstract of title should be produced at a price largely in excess of $6,000, and that plaintiff agreed to pay for all cablegrams sent in consummating the sale; that plaintiff paid defendant at the time $20 as earnest money and as part of the purchase price, and necessarily incurred an expense of $7.77 for cablegrams; that on or about September 14, 1897, the plaintiff sold said property to Florence P. McCarthy and Donald P. McCarthy for the consideration of $9,000, to be paid when the abstract was furnished and the deed executed and delivered; that plaintiff so informed the defendant, and that the balance of the purchase price, to wit, $5,980, was ready to be paid; and that plaintiff has many times within the 40 days offered to pay the same, but that defendant declined to accept it, and has neglected and refused to deliver the abstract and deed, wherefore plaintiff has suffered damages in the sum of $3,227.77. The answer puts in issue the material allegations of the complaint, and sets up as a further defense: That at the time mentioned the defendant employed the plaintiff as a real-estate agent or broker to procure a purchaser within 40 days for the interest owned by the defendant in the real property de scribed, including the summer fallow and the hay in the barn, at and for the price of $6,000, payable in cash, and the defendant

agreed to deliver to plaintiff, as his commission for his services, a certain note of $200 made by the wife of plaintiff and another party to the defendant. That defendant then executed and delivered to plaintiff, at his request, a certain memorandum of the contract, of which the following is a copy, to wit: "Salem, Oregon, 13th Sept., '97. Price, $6,000 00/100. Mrs. Catterlin's note for $200.00. Deed to be a special warranty, and Mr. Catterlin pays for cablegrams. Summer fallow included. Money to be paid on or before forty days. Possession when money paid and deed given to B. A. Wetzel; farm 297 acres, more or less, as shown by deed. Abstract furnished. Mr. Bush's hay in barn included. [Signed] Ladd & Bush." That plaintiff failed to procure a purchaser within 40 days, and wholly failed to perform his part of said contract, and that this is the same agreement alluded to in the complaint. For a second defense, it is alleged that there is no such note or memorandum in existence of the agreement set up in the complaint concerning the land as is required by the statute of frauds. The reply admits that the memorandum as set out in the answer is the true and only one existing between the parties. Upon this state of the record, the defendant moved for a judgment on the pleadings, dismissing the action, which was allowed, and the plaintiff appeals.

R. J. Fleming, for appellant. George G. Bingham and John A. Carson, for respondent.

WOLVERTON, J. (after stating the facts). The principal question presented by counsel is whether the writing set out in the pleadings, and admitted to be accurately exhibited thereby, is a sufficient note or memorandum of the agreement relied upon for a recovery to fulfill the requirements of the statute of frauds. The statute requires that, in case of an agreement for the sale of real property or any interest therein, there shall be some note or memorandum thereof in writing, expressing the consideration and subscribed by the party to be charged, and no evidence will be received of such agreement, other than the writing or secondary evidence of its contents. Hill's Ann. Laws Or. § 785. The memorandum and the contract or agreement are not to be confounded as one and the same thing. The memorandum is understood to be a note or minute informally made of the agreement, which may have but a verbal existence, expressing briefly the essential terms, and was never intended to stand as and for the agreement itself. The necessary elements are that it must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties. Mere formal or nonessential terms will be implied, but the elements necessary to a completed contract must be intelligently ex

pressed, though ever so briefly. Browne, St. Frauds (4th Ed.) § 371; Scarritt v. St. John's M. E. Church, 7 Mo. App. 174. Accordingly, it must show who are the contracting parties, intelligently identify the subject-matter involved, express the consideration, be signed by the party to be charged, and disclose the terms and conditions of the agreement. Corbitt v. Salem Gaslight Co., 6 Or. 405, 25 Am. Rep. 541; Sherburne v. Shaw, 1 N. H. 157, 8 Am. Dec. 47; Gault v. Stormont (Mich.) 17 N. W. 214; Clampet v. Bells (Minn.) 39 N. W. 495; Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360; Elliot v. Barrett, 144 Mass. 256, 10 N. E. 820; Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366; Drake v. Seaman, 97 N. Y. 230. Furthermore, the memorandum must not falsify the agreement set out by the complaint as the basis of the action, as the plaintiff must produce such a writing as will tend to prove, not disprove, the existence of the alleged contract. Browne, St. Frauds (4th Ed.) § 371a. These rules will enable us to determine the efficacy of the memorandum involved here. By its wording it is impossible to determine what the consideration for the alleged sale was,-whether $6,000 alone, or the Mrs. Catterlin note in addition. The memorandum is just as susceptible of defendant's construction, that the $200 note constituted the consideration which Catterlin was to receive for making the sale for defendant as a broker, as that placed upon it by plaintiff, so that it cannot be said that the consideration is expressed as interpreted by plaintiff. It would take parol evidence to make such a stipulation as to the consideration out of it, as alleged, and this is not permissible. Again, the only reference made to the alleged vendee is this: "Mr. Catterlin pays for cablegrams." Read with the context, this allusion to the plaintiff is amply as consistent with the theory that he was a broker as with the other, that he was a vendee, so that the writing is ambiguous in this particular as well. These objections are not more serious, however, than the general one, which goes to the whole instrument, namely, that it is so vague, indefinite, and uncertain that it is impossible to determine what its true import is. As has been indicated, it is just as susceptible of the construction that it is a memorandum of a contract with Catterlin as a real-estate agent or broker as with him as a vendee, and the ambiguity is one that is patent upon the face of the instrument, and therefore not susceptible of explanation by parol. For this reason alone, if for none other, it is manifestly insufficient. Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Minturn v. Baylis, 33 Cal. 129. There is still another objection fatal to the admission of the memorandum in evidence. It does not support the agreement set out in the complaint. This is apparent from a comparison of the terms alleged with those supposed to be stated in the writing. It contains no allusion to the alleged fact that defendant agreed to convey

to a third person, and it shows quite to the contrary of what is alleged touching the payment of expenses for cablegrams. No further comment is necessary. The plaintiff insists that, as defendant admitted the existence of the memorandum in the answer, he was entitled to a trial as to what was the real contract between the parties. It is a sufficient answer to this to say that defendant does not admit that plaintiff is entitled to recover anything under any theory that might be adopted as to the transaction, and that the burden was with the plaintiff to make out his case; hence, if the memorandum was of no legal service to him, he was not entitled to a further hearing. This also answers the plaintiff's contention that if the agreement was an option, merely, as alleged in the answer, he was entitled to the return of the $20, if paid. As suggested, plaintiff was proceeding upon a different theory, namely, that he was damaged by breach of an entirely different contract from the one set up in the answer; and he must recover upon that theory, or not at all. Finding no error in the record, the judgment will be affirmed.

STATE. HORN et al.

(Supreme Court of Oregon. Aug. 16, 1901.) APPEAL AND ERROR-FILING BRIEF-MOTION TO AFFIRM.

Where appellant without excuse fails to serve a brief within 30 days after his appcal is perfected, and to file the same in the appellate court 10 days before the first of the term, as required by rule 32 (37 Pac. x.), a motion to affirm the judgment appealed from should be granted.

Appeal from circuit court, Malheur county. Action by the state against Riley M. Horn and others. Judgment for the state, and defendants appeal. Motion to affirm the judg ment on appellants' failure to serve and file a brief. Judgment affirmed.

D. R. N. Blackburn, Atty. Gen., for the State.

PER CURIAM. This is a motion to afArm a judgment. The transcript was filed at Pendleton on April 11, 1901, and on the 10th of May, in pursuance of the stipulation of the parties, the cause was transferred to Salem for argument. No brief has been filed by the appellants, however, and for this reason the attorney general moves to affirm the Judgment. No excuse is offered for the failure to file the brief, except that the rules of the court on that subject do not apply to cases for hearing at Pendleton. But rule 32, which was framed by and adopted at the suggestion of a committee of the Eastern Oregon bar, provides that in such cases the appellant must serve a brief within 30 days after his appeal is perfected, and file the same in the appellate court at least 10 days before the first of the term. 35 Or. 608, 37 Pac. I.

-STATUTES-CONSTITUTIONALITY.

Astoria City Charter (Sess. Laws 1891, p. 280; Sess. Laws. 1895, p. 572), vesting in the mayor and council the control of streets, and providing that neither the city nor any member of the council shall be held liable for any damages resulting from any defective street, is repugnant to Const. art. 1, § 10, guarantying to every person a remedy by due course of law for injury done him in person or property.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Action by Henry Mattson, guardian ad litem for Susan Mattson, against the city of Astoria. From a judgment for plaintiff, defendant appeals. Affirmed.

A. M. Smith, for appellant. George Noland, for respondent.

BEAN, C. J. This is an action against the city of Astoria to recover damages for an injury alleged to have been caused by its failure to keep one of its public streets in repair. and suitable for travel. The validity of a clause of the city charter exempting the city and the members of the council from liability in such cases is the only question presented by this appeal. By its charter, the city, the power and authority of which are vested in the mayor and common council (Sess. Laws 1891, p. 280), is given control and management of the streets, and authority to raise money for their improvement and repair (Sess. Laws 1895, p. 556, §§ 75, 77, 79); and the common council is vested with the express authority "to assess, levy and collect taxes for general municipal purposes," and to provide "for the cleaning and repairing" of streets (Id. p. 564, § 38). The charter also provides that "neither the city of Astoria nor any member of the council thereof shall in any manner be held liable for any damages resulting from a defective condition of any street, alley or highway thereof." Id. p. 572. The court below held this clause void, because repugnant to section 10, art. 1, of the state constitution, which provides that "every man shall have remedy by due course of law for injury done him in person, property, or reputation," and in this view we concur. That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. O'Harra v. City of Portland, 3 Or. 525. But in such case the injured

party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted. "It is settled law in this court," says Mr. Justice Finch, "that one who assumes the duties and is invested with the powers of a public officer is liable to an individual who sustains special damage by a neglect properly to perform such duties." Bennett v. Whitney, 94 N. Y. 302. Mr. Justice Swayne says: "The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct." Amy v. Supervisors, 11 Wall. 136, 20 L. Ed. 101. See, also, 1 Shear. & R. Neg. (5th Ed.) § 313; 1 Dill. Mun. Corp. (4th Ed.) p. 325, note; Rankin v. Buckman, 9 Or. 253; Balls v. Woodward (C. C.) 51 Fed. 646; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Hover v. Barkhoof, 44 N. Y. 113; Tearney v. Smith, 86 III. 391; Butler v. Ashworth, 102 Cal. 663, 36 Pac. 922; Nowell v. Wright, 3 Allen, 166, 80 Am. Dec. 62. A provision, therefore, of the city charter exempting the city from liability for damages resulting from defective streets is not violative of the constitutional provision referred to, because it does not wholly deny the injured party a remedy for the wrong suffered. The charter provision in question, however, goes further. It provides that neither the city nor any member of the council shall be liable, and, if valid, prevents a common-law action against the members of the council for their negligent acts or omission, and is practically, therefore, a denial of any remedy, as they are the only officers charged with the duty of keeping the streets in repair. The constitutional provision guarantying to every person a remedy by due course of law for injury done him in person or property is found in the constitutions of many of the states, and means, as said by the supreme court of Missouri, "that for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy" (Landis v. Campbell, 79 Mo. 433, 439, 49 Am. Rep. 239); or, as interpreted by the supreme court of Wisconsin, "that laws shall be enacted giving a certain remedy for all injuries or wrongs" (Flanders v. Town of Merrimack, 48 Wis. 567, 575, 4 N. W. 741). It was intended to preserve the commonlaw right of action for injury to person or property, and while the legislature may change the remedy or the form of procedure, attach conditions precedent to its exercise, and perhaps abolish old and substitute new remedies (McClain v. Williams, 10 S. D. 332, 73 N. W. 72; Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792), it cannot deny a remedy entirely. It is immaterial, therefore, whether a municipal corporation is

technically liable at common law for negligence in not keeping its streets in repair, because, as said by Mr. Justice Earl in Fitzpatrick v. Slocum, 89 N. Y. 358, "there must be a remedy in such a case, where one is injured, without any fault of his own, by a defect in one of the streets or bridges of the city, either against the city or some one of its officers." And the charter of Astoria attempts to deny both. Whether a municipal corporation was liable to a common-law action or not, its officers were so liable to an individual specially damaged by their negligent act or omission; and the charter provision under consideration attempted to take away the remedy against the officers, as well as against the city, and is therefore void. Judgment affirmed.

PER CURIAM. This is a motion to dismiss the appeal on several grounds, none of which require particular notice, except the contention that the transcript does not contain a certified copy of the judgment of the court below. The appellant availed himself of the provisions of section 541 of the statute, as amended in 1899 (Sess. Laws 1899, p. 229), and filed an abstract in lieu of a transcript. In such a case the law requires that, in addition to the printed abstract, the appellant shall file a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and the undertaking on appeal. The object of this provision is to furnish evidence that a genuine, bona fide controversy was tried and determined in the court below, and a judgment or decree rendered thereon. In the case at bar an attempt was made to comply with this requirement, but the clerk, in place of sending up a copy of the judgment, inserted in the transcript a copy of the judgment lien docket. As this, however, was evidently unintentional, and can be corrected, the motion to dismiss will be denied, and an order made directing the clerk below to send up a certified copy of the judgment from which the appeal is taken.