(185 P.)

"When the error alleged relates to the admis- | dence that on a search warrant certain whisky sion or rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected, stating specifically the objection thereto."

Counsel have wholly failed to comply with this rule of the court. Nowhere in the brief is the substance of the evidence set out in full which it is claimed was erroneously admitted, nor is there any discussion of evidence claimed to be erroneously admitted, calling attention of the court to its relation to the other evidence in the case. Counsel merely call the court's attention to the evidence of certain witnesses, and leave it to the court to search the record for the evidence complained of and to discover by our own investigation the alleged error, if any.

The Attorney General, in his brief, has called the attention of the court to certain facts and circumstances detailed in evidence by the state's witnesses which tended to show a concert of action between this defendant and the other defendants jointly charged with him toward the commission of this crime. Under the previous opinions of this court, such facts and circumstances were sufficient

to permit the jury to conclude that a conspiracy existed between these defendants to commit this bank robbery, and therefore the evidence complained of was admissible. Ex

parte Hayes et al., 6 Okl. Cr. 231, 328, 118

Pac. 609; Starr v. State, 5 Okl. Cr. 440, 460,
115 Pac. 356; Holmes v. State, 6 Okl. Cr. 541,
555, 119 Pac. 430, 120 Pac. 300; Burns v.
State, 8 Okl. Cr. 554, 569, 129 Pac. 657;
vin v. State, 11 Okl. Cr. 301, 146 Pac. 453.
The failure of counsel for the defendant to
comply with the rules of this court warrants
the court, in the face of the fact that no reply
has been made to the brief of the Attorney
General setting out the detailed facts and
circumstances which he claims authorized the
admission of this evidence, to conclude that
there is little merit in this assignment, in

was found in dresser drawer in room in defendant's rooming house, covered by heavy wrapping paper, and that reputation of house was bad, and that an oil worker occupied room of any knowledge of whisky found, was not several months, together with defendant's denial inconsistent with his innocence and did not show alleged intent, so that, as a matter of law, it was insufficient to sustain a conviction.

H. H. Townsend testified that the defendant conducted a rooming house at 1091⁄2 South Cincinnati street, in the city of Tulsa, and Ir-conducted a restaurant across the street, and in serving a search warrant he found nine half pints of whisky in room No. 9 of the rooming house; that it was in a dresser drawer covered with heavy pieces of wrapping paper; that he arrested the defendant's wife and took her to the station, and the defendant appeared and said he ran the place; that the reputation of the place had been getting bad 60 days prior to the raid.

view of all the evidence in this case which clearly points to the defendant's guilt.

There is no error in this record which deprived the defendant of any substantial right or resulted in a miscarriage of justice. The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG,

concur.

(16 Okl. Cr. 723)

Cross-examined, he stated that he had talked about the reputation of the rooming house with one man in that vicinity.

T. L. Powell testified that he was present when nine half pints of whisky were found in a dresser drawer in room No. 9; that he J., had raided the place before and never found any whisky while the defendant owned the rooming house; that he examined the register and found somebody registered in room No. 9. As a witness in his own behalf, the defendant testified that he ran the rooming house and restaurant across the street and had been running the same for about a year; that every one was required to register when they took a room; a man by the name of White was registered and occupied room No. 9 for several months; he always paid his room rent In prosecution for unlawful possession of weekly, was an oil field worker, and would intoxicating liquor with intent to sell it, evi- be sometimes out at work four or five days

TEARNEY v. STATE. (No. A-3227.) (Criminal Court of Appeals of Oklahoma. Dec. 23, 1919.)

(Syllabus by Editorial Staff.) INTOXICATING LIQUORS 236(5)—EVIDENCE INSUFFICIENT TO SUSTAIN CONVICTION OF

POSSESSION WITH INTENT TO SELL.

(185 P.)

without returning; that his rooming house tiff, in a suit to rescind an exchange of lauds consisted of 18 rooms. He denied any knowledge of the whisky found.

Mrs. H. J. Tearney testified that she conducted the rooming house; that Mr. White had room No. 9 for several months prior to the time the raid was made; the room was always locked during his absence; that he usually left the key over the transom, but this time had the key with him.

Earl Howard testified that he is a son-inlaw of the defendant; lived at the rooming house with his wife for more than a year; knew of his own personal knowledge that Mr. White occupied room No. 9.

There is no conflict of evidence in the case. The undisputed facts, taken singly or as a whole, are not inconsistent with the innocence of the defendant. Conceding that they show constructive possession of the whisky found; there is no competent evidence tending to show an intent to sell the same. Upon the whole case, we are clearly of opinion that as a matter of law the evidence is insufficient to sustain the conviction.

on the ground of fraud, to allege restoration of and offer to return the consideration, for by his application he tacitly invites the court to protect the defendant by decreeing a restoration

in consideration of a rescission.

The substance of the complaint is that the plaintiffs were the owners of some acreage in Hood River county, and the defendants Nelson Hackett and W. A. Hackett were the owners of a certain lot in Portland. The property of the plaintiffs was incumbered by a mortgage of $1,600; that of the defendants by two mortgages aggregating $3,100. Negotiations were opened for an exchange of properties, and, as the plaintiffs allege, for

The judgment herein is therefore reversed. the purpose of inducing them to make the

(95 Or. 12)

PALMITER et ux. v. HACKETT et al.* (Supreme Court of Oregon. Dec. 30, 1919.) 1. FRAUD

17-MERE SILENCE NOT FRAUD

WHERE NO DUTY TO SPEAK.

Individuals dealing at arm's length must look out for themselves, and mere silence is not fraud where no duty is imposed upon one to speak, but a half truth spoken with the design of influencing the opposite party, where he has not equal means of knowledge, is in itself fraudulent.

NO PRESUMPTION OF

KNOWLEDGE OF ORDINANCES.

exchange the defendants represented:

"That said lot was improved with a twostory frame building with a good, rentable garage on the first or ground floor thereof, and housekeeping or living rooms on the second story thereof; that the same was then and had been for a long time leased and rented to tenants for the monthly rental of $50 a month; that the lower or ground story of said building was suitable and rentable for use and occupation as a garage; that the upper story thereof was suitable and rentable as living or housekeeping rooms; and that the property could be continued for the uses named."

Other averments upon which the plaintiffs rely state representations said to have been made by the defendants respecting the value of their property. The plaintiffs claim to have relied upon the statements of the defendants, and aver that they were fraudulent and made with the intent to wrong and defraud the plaintiffs, and to procure their property by means of the fraud. The com 3(1)-FRAUDU-plaint further says in substance that the

The proposition that every man is presumed to know the law applies only to the general laws of the land, and not to city ordinances, except in proceedings in municipal courts, in view of L. O. L. § 90.

3. EXCHANGE OF PROPERTY

LENT CONCEALMENT.

Where one exchanging a building for other real property has actual knowledge of a city ordinance prohibiting the use of a building simultaneously as a garage and as a residence, he is guilty of fraud where he states that the first floor was rented as a garage for $25 a month, and the second floor for $25 as living or housekeeping rooms, and that the property could be continued for the uses named; the other person not knowing of the ordinance.

37(4)

4. CANCELLATION OF INSTRUMENTS
OFFER TO DO EQUITY NOT NECESSARY WHERE

COURT MAY PROTECT DEFENDANT.

The maxim that he who seeks equity must do equity is not violated by failure of the plain

Portland property belonging to the defend-
ants was not at said time usable and rentable
for living or housekeeping rooms on the sec-
ond story thereof, and was not at said time
leased and rented for the rental of $50 or for
any other sum in excess of $25, but, on the
contrary, it was well known to defendants
that by the terms of Portland City Ordinance
No. 34764, approved November 27, 1917, en-
titled "An ordinance amending section 683
of Ordinance No. 33911, the Building Code.
covering garages and declaring an emerg-
ency," and by the terms of section 682 of
Portland City Ordinance No. 33911, entitled
"An ordinance providing building regulations

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
185 'P.-70
*Decree modified on rehearing, 186 Pac. 581.

In all subsequent negotiations, however, although this warning from the city officials was known to both Nelson and W. A. Hackett, they scrupulously avoided saying anything to the plaintiffs about the matter. The latter were ignorant of the ordinance and of the notification which the city officials gave to the agent of the defendants and which was by him communicated to the defendants. The evidence is plain that the building was not rentable simultaneously as a garage and as a dwelling place; that this was known to the defendants, and not to the plaintiffs; and that the representation about the availability of the property for leasing was made to induce the exchange on the part of the plaintiffs.

to be known as the Building Code," approved | the tenants of the upper story to vacate. March 13, 1918, it was provided that no tenants might occupy the second story of a frame building constructed similarly to the one on said lot, with a large garage underneath, and also well knew that, acting under the terms of said ordinance and its police powers, the proper city authorities had notified said tenants that occupancy of said second story by tenants would not longer be permitted by said city authorities. Further allegations show what is meant by a "large garage" within the purview of the city laws. The plaintiffs say they did not discover the falsity of the utterances of the defendants until after the exchange had been made, when the former demanded a reconveyance of the property in Hood River county and offered to place the defendants in the same position they were before, by returning all that the plaintiffs had received in the exchange.

The answer challenges all the imputed fraud, and recites the exchange of properties as viewed from the standpoint of the defendants. The reply traverses much of the new matter in the answer.

The trial court passed a decree for the defendants dismissing the suit and declaring the defendants Nelson Hackett and his wife the owners of the Hood River property. The plaintiffs appeal.

In Boelk v. Nolan, 56 Or. 229, 107 Pac. 689, the plaintiff had left his realty in Tillamook county in charge of a friend and had gone to California for the benefit of his health. He had not been heard of for several years, and in his interest the friend, fearing he was dead, allowed the property to go to sale for taxes and bought it in for the purpose of holding it in trust for the plaintiff. The defendant managed to ascertain where the plaintiff was, went to California, and bought the property for a trifling sum, representing to him that his land had been sold for taxes; that his title was gone; and that

Jerry E. Bronaugh, of Portland (Bronaugh & Carter, of Portland, on the brief), for aphe, the defendant, wanted the deed from pellants.

Ernest C. Smith, of Hood River, for respondents.

BURNETT, J. (after stating the facts as above). The vital contention in the suit is whether the representation of the defendants about the rentability of the property was fraudulent. The testimony is to the effect that the negotiations about the trade began early in December, 1918, and continued until January 27, 1919, when a contract was entered into outlining the terms of the exchange, followed by an exchange of deeds February 6, 1919. When the transaction was first broached, the defendants told the plaintiff Palmiter that the property was rented, the upper story as an apartment wherein a family was residing, and the ground floor as a garage, each at $25 per month, totaling $50 per month. The building was of wooden frame construction, sided with rustic and only partly ceiled. During the pendency of the negotiations the plaintiff husband examined the property and saw its physical condition. Meanwhile the city authorities had waited upon the agent of the defendants in charge of the property and informed him of the ordinance which forbade the use of such a building simultaneously as a garage and as a residence. The agent immediately communicated this to the defendants, and under instructions from his principal notified

the plaintiff to confirm a title which he himself had acquired. Although well known to him, the defendant said nothing about the attitude and purpose of the friend whom the plaintiff left in custody of the property. The court there held:

"It was the duty of defendant, when he undertook to inform plaintiff about the condition of the latter's title to the land, to make a full, truthful, and complete declaration of all the conditions within his knowledge affecting it; and his failure so to do amounts to such a fraud as entitles plaintiff to a cancellation of his deed."

[1] The substance of the holding is that, when a defendant opens his mouth to make declarations respecting the property involved, he must speak the whole truth, and that a suppression of part of the fact is fraud when made to induce a purchase. This does not infringe upon the rule that individuals dealing at arm's length must look out for themselves, and that mere silence is not fraud where no duty is imposed upon one to speak. A half truth, however, spoken with a design of influencing the opposite party where he has not equal means of knowledge, is in itself fraudulent. See, also, Weikel v. Sterns, 142 Ky. 513, 134 S. W. 908, 34 L. R. A. (N. S.) 1035.

[2, 3] It is contended by the defendants that the plaintiffs were bound equally with them to know the city ordinances. It is an

(185 P.)

old saying that, "Every man is presumed to | promissory note for $400 taken as part of the know the law." But this applies to the gen- exchange, together with $600 cash paid thereeral laws of the land. It is said in 28 Cyc. on, each conveyance to be delivered to the 393: Iclerk of the circuit court for the opposite

of the mandate of this court, and that in default of so doing the decree shall stand and operate as and for the required conveyance.

"The general rule is well settled that munic-party within ten days from the entry there ipal ordinances and by-laws are not laws of which judicial notice will be taken, but facts to be pleaded and proven. If not duly pleaded, they cannot be proven; and if duly pleaded and not proven in legal method, the action must fail no matter how notorious the ordinance may have been. The general rule, however, is held not to apply to proceedings brought in a municipal court, for here the ordinance is the peculiar law of the forum, of which the court is bound to take judicial notice, and this obviates any necessity for pleading the ordinance."

The litigation in hand has no relation to any proceeding in a municipal court and must be determined by the general law of the land. Our statute (L. O. L. § 90) requires city ordinances to be pleaded as facts, which shows that the courts will treat them as facts. Moreover, the plaintiffs did not have equal opportunity with the defendants to know about the ordinances, because the at

tention of the latter had been especially called to the matter, through their agent, by the city authorities. The defendants were in possession of knowledge affecting the rentability of the property which was not possessed by the plaintiffs, and it was manifestly concealed with the purpose of inducing the trade. The action of the defendants in keeping that knowledge from the plaintiffs constitutes a fraud in law sufficient to vitiate the transaction.

[4] In Owen v. Jones, 68 Or. 311, 136 Pac. 332, the opinion quotes with approval from a decision rendered by Mr. Chief Justice Moore in Crossen v. Murphy, 31 Or. 114, 49 Pac. 858, as follows:

MCBRIDE, C. J., and BENSON and HARRIS, JJ., concur.

(94 Or. 507)

MILLER LUMBER CO. v. DAVIS.
(Supreme Court of Oregon. Dec. 30, 1919.)
APPEAL AND ERROR 1078(1)-ASSIGNMENTS
OF ERROR, NOT ARGUED, WAIVED.

Assignments of error, upon which no argument is presented in the brief of an appellant, are deemed to have been waived.

In Banc.

Appeal from Circuit Court, Deschutes

County; T. E. J. Duffy, Judge.

On petition for rehearing. Rehearing denied.

For former opinion, see 185 Pac. 462.
W. P. Myers, of Bend, for appellant.
E. O. Stadter, of Portland, for respondent.

HARRIS, J. The defendant contends that the original opinion did not pass upon all the assignments of error, and for that reason he asks for a rehearing. When the original opinion was written, the points discussed in the briefs were carefully compared with the exceptions enumerated in the bill of exceptions and with the assignments of error specified in the printed abstract. When writing the original opinion, it was our purpose to discuss all the alleged errors referred to in defendant's briefs, and we thought that we had discussed all the points noted by the defendant in his briefs. We have again compared the bill of exceptions and assignments of error with the briefs and find that we were not mistaken in our belief; for what we said in the original opinion necessarily

"The maxim that 'he who seeks equity must do equity' is evidently not violated by the failure of the plaintiff, in a suit to rescind a contract for fraud, to allege a restoration of, or an offer to return, the consideration, or a willingness even to do so; for by his application to the court for equitable redress he concedes that before it will be awarded he must do equity, which will compel him to account for everything of value he may have received, thereby tacitly inviting the court to protect the rights of the defendant by decreeing a restora-passes upon every assignment of error which tion in consideration of the rescission."

The principles thus enunciated control the determination of the issue here. The decree of the circuit court will therefore be reversed, and one here rendered to the effect that the defendants reconvey to the plaintiffs the Hood River county property, and that the plaintiffs reconvey to the defendants Nelson Hackett and W. A. Hackett the Portland property, and return to said defendants the

the defendant discussed in his opening and reply briefs. No point argued by the defendant in his briefs remains undecided. Some of the assignments of error are not mentioned at all in the briefs submitted by the defendant. Assignments of error, upon which no argument is presented in the brief of an appellant, are deemed to have been abandoned and waived. Donohoe v. Portland Railway Co., 56 Or. 58, 61, 107 Pac. 964. The petition for a rehearing is denied.

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