defendant desires that she shall allege the said,dition of the said defendant, the plaintiff has "That about 15 years ago this defendant was afflicted with a loathsome and incurable disease, to wit, syphilis, and at or about that time the defendant was ill for a great length of time with said disease which resulted in sores upon his body and was treated for this condition, and that at said time defendant knew that he was afflicted with syphilis and knew that for him to beget an offspring would result in said offspring being diseased and afflicted with said disease congenitally and be defective and a great care and burden to those who would have his care and charge. That nevertheless the defendant, without informing this plaintiff of his said condition or of the consequences that would flow therefrom, asserted his marital rights and begot a son, Raymond, who was born about 14 years ago. . That said son was born congenitally afflicted with said disease of syphilis and has had ever since his birth, and now has, said syphilitic condition as a result of the previous condition of defendant above set forth. That during all of the times since said son was born he has been a constant care and worry to the plaintiff due to said condition of said defendant. That during all of said time it has been possible, by proper treatment for said syphilitic condition, to have greatly lessened the suffering and diseased condition of said son, but that this plaintiff never knew what was the cause of said diseased condition of said son, and that defendant, although knowing at all times that said son was suffering from congenital syphilis caused by the condition of the defendant at the time of the conception of said son, concealed said fact from this plaintiff and failed and neglected to afford said son medical treatment which would have alleviated said condition, and that thereby the plaintiff has suffered great hardship in constant nursing and caring for said son and great grief and worry caused by his said diseased condition and his failure to improve in his health. suffered beyond expression; and the said fail- The Bowers Investment Company was The cross-complaint of the defendant de- The Gus Newbury and Porter J. Neff, both of Briggs & Briggs, of Ashland (E. D. Briggs, BURNETT, C. J. (after stating the facts as above). [1] The issues involved in this suit are almost exclusively those of fact. The testimony reported has been carefully perúsed and examined. A detailed analysis of it would not add anything to the sum of legal knowledge garnered in the official reports. It is enough to say, on that subject, that the plaintiff has failed to make out her case by a preponderance of the evidence. Aside from the charge relating to the loath"That the realization of the condition of some disease, the grievances enumerated in plaintiff's said son is a constant cause of worry, suffering, and humiliation to the plaintiff, the complaint are in the main trivial and do and the realization that the son of plaintiff and not amount to personal indignities rendering defendant is now afflicted with, and may be life burdensome, within the meaning of the required to go through life afflicted with, said statute. Indeed, there is no direct proof that condition, is a constant cause of worry, suffer- the occurrences such as neglect of the preming, and humiliation to the plaintiff, which is ises, failure to supply literature, complaint almost unbearable. That the defendant knew of the expense of dinner parties, and the that he was afflicted with syphilis at the time like, impaired the plaintiff's health or threatwhen he had the same, and the failure of de-ened her with bodily harm. As said by Mr. fendant to inform this plaintiff that the dis- Justice Haskell in Holyoke v. Holyoke, 78 ease with which he was suffering, and for which he took treatment many months, was syphilis, and his failure to so inform the plaintiff of his said condition was cruel in the extreme, and ever since the plaintiff has learned of the said condition of the said defendant and has learned of the condition of their said son, caused as herein before alleged by the said con Me. 404, 6 Atl. 827: "Divorce should not be a panacea for the infelicities of married life; if disappointment, suffering, and sorrow even be incident to that relation, they must be endured. The marriage yoke, by mutual forbearance, must be worn, even though it rides unevenly, and has become (194 P.) ease charged is acquired only by contact, that it starts at the point of contact, and that it may be acquired innocently through various media. This would seem to indicate that, even if the defendant had syphilis, he did not contract it adulterously. It would be disgusting to analyze the testimony in detail, as in an address to a jury on a question of fact, and hence the subject will not be pursued further. burdensome withal. Public policy requires that it should be so. Remove the allurements of divorce at pleasure, and husbands and wives will the more zealously strive to even the burdens and vexations of life, and soften by mutual accommodation so as to enjoy their marriage relation. "Deplorable as it is, from the infirmities of human nature, cases occur where a willful disregard of marital duty, by act or word, either works, or threatens injury, so serious, that a continuance of cohabitation in marriage cannot The learned judge who heard the testibe permitted with safety to the personal wel-mony had before him the principal witnesses fare and health of the injured party. Both a in the case. His long experience as a jurist sound body and a sound mind are required to and his opportunity to observe the manner of constitute health. Whatever treatment is prov- witnesses while testifying are of great aid ed in each particular case to seriously im- in arriving at the conclusions of fact whch pair, or to seriously threaten to impair, either, is like a withering blast, and endangers life, we deduce from a reading of the record, limb, or health,' and constitutes the sixth cause and we adopt his determination of the matfor divorce in the act of 1883. Such is the ter. weight of authority"-citing precedents. The decree is affirmed. MCBRIDE, BEAN, and HARRIS, JJ., con cur. (102 Or. 579) LARSEN et al. v. LOOTENS et al. (Supreme Court of Oregon. Jan. 11, 1921.) 1. Appeal and error 381-Sureties on undertaking must justify before judge or clerk of court in which action is pending. [2, 3] Annulment of the marriage relation is not to be granted under our statute for mere incompatibility of temper or uncongenial disposition. The conduct of the offending spouse must be such as to threaten personal or mental injury to the one complaining, rendering it unsafe for the latter if the marriage relation is continued, before a court is authorized to grant a divorce. Upon reading the record with care, there can be no reasonable ground for granting a divorce on the allegations outside of those relating to the malady mentioned in the complaint. The implied charges of adultery, based as they are on a statement of information and belief, are of doubtful efficacy as a matter of pleading; but the evi-2. Appeal and error dence wholly fails to establish anything in support of such charges. An allegation of the kind must be supported by more than mere innuendo or suspicion. In order to grant relief upon such a charge, it must be proved as laid. Sureties in an undertaking on appeal under Or. L. § 550, subd. 3, if required to justify, must justify before a judge or clerk of the court in which the action is pending. Party exercising right of appeal must do so subject to burdens that law sees fit to impose. The right to appeal is not constitutional, but is a privilege given by statute, and the party exercising it must do so subject to such burdens as the law has seen fit to impose. In banc. Appeal from Circuit Court, Multnomah County; George Tazwell, Judge. [4] The contest was waged chiefly on the subject of the loathsome disease. The complaint does not charge that the defendant communicated it to the plaintiff, but rather Action by John Larsen and Beynhild Larthat through the process of conception and gestation it was visited congenitally upon sen against Bert Lootens and another. Judgthe son that was born to the parties. There ment for plaintiffs, and defendants appealis an irreconcilable conflict in the evidence. ed. On motion to dismiss appeal. Motion deAs usual, the experts do not agree in many nied on condition that defendants file proper respects. The plaintiff testifies to certain undertaking. eruptions on the person of the defendant, which he absolutely denies. The testimony of the medical men seems to be without dispute that the sores she describes, if attributable to the disease in question, would leave scars; and all of the physicians who have examined the defendant declare there are no such marks on his person. Even the medical witnesses for the plaintiff locate the disease in the throat of defendant and denominate it "syphilitic sore throat." Other physicians who treated the defendant at the time pronounced it diphtheria. All agree that the dis Davis & Farrell and Wilber Henderson, all of Portland, for the motion. Henry S. Westbrook, of Portland, opposed. MCBRIDE, J. This is a motion to dismiss an appeal for want of a sufficient undertaking. The case was tried in Multnomah county and the appellants served and filed an undertaking signed by sureties who lived in Deschutes county and obtained an ex parte order authorizing the justification of the sureties at Bend, Deschutes county, and di For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (99 Or. 533) recting the clerk to transmit the undertaking EPPLETT v. EMPIRE INV. CO., Inc.* Subdivision 3 of section 550, Or. L., pro vides: (Supreme Court of Oregon. Jan. 11, 1921.) "The qualifications of sureties in the under-declare a forfeiture" on purchaser's default, the taking on appeal shall be the same as in bail on arrest, and, if excepted to, they shall justify in like manner." Section 268, Or. L., relating to bail on arrest, provides that the sureties upon an undertaking of bail may justify before a "judge of the circuit court or county court or clerk of the court where the action is pending, at a specified time and place." The construction of this clause and its application to cases of undertaking on appeal are not without difficulties, and possible hardships may result from any construction suggested on the arguments of respective counsel. [1] Counsel for respondents argue that to hold that a defeated suitor may, after having lost his case, put the successful party to still further trouble and expense by fixing the place for the justification of the sureties in a county remote from where the suit was tried, would work a great injustice and inconvenience by requiring the successful litigant to go to the place designated for the justification in order to cross-examine the sureties as to their qualifications, while the attorney for appellants argues that in the present instance the appellants are comparatively unacquainted in Portland and consequently unable to obtain sureties there, although they are well acquainted at Bend, where they formerly resided, and are consequently able to find friends there to go upon their undertaking. After a careful examination of the statute we are of the opinion that its intent is to require the justification before a judge or clerk of the court in which the action is pending. Such has been the holding in California upon a similar statute. Roush v. Van Hagen, 18 Cal. 668. contract did not automatically work a forfeiture upon purchaser's failure to pay an installment, but merely entitled vendor to elect to declare a forfeiture; and hence the vendor was required, before declaring such forfeiture, to give purchaser reasonable notice. 2. Vendor and purchaser 85, 334(3) On vendor's unauthorized declaration of forfeiture and purchaser's acceptance purchaser can recover installments paid. Where contract requires vendor to give purchaser reasonable notice before declaring a forfeiture, vendor's letter to purchaser, stating that the contract had been forfeited, and that purchaser's rights thereunder determined, written without first giving purchaser a reasonable notice, together with purchaser's letter accepting rescission of the contract, constitutes mutual rescission, and not a declaration of forfeiture on part of vendor, so that the purchaser is entitled to recover purchase-money installments paid. 3. Vendor and purchaser 101 Notice of forfeiture not required after purchaser's abandonment. Where purchaser informed vendor that she would make no more payments, vendor was not required to give purchaser notice in order to effect a forfeiture, since purchaser, by abandonment of contract, waived her right to notice. 4. Vendor and purchaser 148-Tender of deed not a condition precedent to declaration of forfeiture except for default in final payment. Vendor is not required to tender a deed before declaration of forfeiture for purchaser's default in payment of intermediate installment, but is required to tender deed where the default is in the final payment, since the obligation to pay the final installment and the obliga tion to deliver a deed are concurrent obligations. - Tender of 5. Vendor and purchaser 148 deed as condition precedent to declaration of forfeiture unnecessary after abandonment of contract by purchaser. donment of contract, made it unnecessary for Purchaser, by notifying vendor of her abanvendor to tender deed as a condition precedent to declaration of forfeiture. [2] The right to appeal is not constitutional, but is a privilege given by statute, and the party exercising it must do so subject to such burdens as the law has seen fit to impose. As this precise question has not been raised in this court in any case preceding this, we are disposed to adopt a conservative course in order to avoid the hardship which might result from a dismissal of the appeal. The appellants will be permitted to file here a new undertaking properly justified before a judge of the circuit court Where it does not appear from the record of Multnomah county or the clerk of said whether plaintiff moved for judgment on the court within 30 days after the rendition of pleadings or demurred to the answer in the lowthis opinion. In default of such undertaker court, the Supreme Court, after ascertaining the appeal will be dismissed. ing whether plaintiff was entitled to judgment 6. Pleading ~34(7)—Answer construed most favorably to defendant on appeal, in absence of objection in lower court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Or.) (194 P.) 701 on the pleadings, will construe answer most fa- | additional payments were made in different vorably to defendant. 7. Pleading 345 (2)—Plaintiff, on denial of allegation in answer, cannot ask judgment on pleadings by reason of it. Plaintiff, after denying allegation of answer, could not ask for judgment on the pleadings on the strength of such allegation. In Banc. Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge. Action by Winnie Epplett against the Empire Investment Company, Incorporated. Judgment for defendant, and plaintiff appeals. Affirmed. The plaintiff, Winnie Epplett, is attempting in this action, brought against the Empire Investment Company, Incorporated, a corporation, to recover installments paid by The parties her on a land sale contract. consenting, the cause was tried to the court without the aid of a jury. There was a judgment for the defendant, and the plaintiff appealed. There is There is no bill of exceptions. The appeal is no transcript of evidence. presented upon a record which consists only of the pleadings and findings made by the trial court. The plaintiff contends that she is entitled to a judgment: (1) On the pleadings independently of the findings of fact; and (2) on the findings of fact considered alone. amounts. There were 3 $20 payments; 1 "I hope you see fit to give me at least a small part of the $350.00, I have paid into this lot. I hate to lose it all. It may be I am entitled to this in the reading of the contract. However, will you please let me know how best to rid myself of this burden and worry, without the trouble and expense of suit? "Hoping to hear from you at once, I beg to remain "Very truly yours, Winnie Epplett." "P. S. I discontinued making payments for the reason that I could not make them and further I thought this the quickest way to end the matter. I thought that you had the title to the lot anyway, and if not, you would pay me part of what I had paid in for a release from me, of any equity I had in the lot." On October 2, 1911, the plaintiff and defendant entered into a written contract, under the terms of which the defendant agreed to sell and the plaintiff agreed to buy two lots owned by the defendant in Multnomah county. The price was $750, of which $50 was paid at the time of the execution of the contract, and the remainder was to be On October 29, 1918, the defendant anpaid in monthly installments of $10. Upon payment of the full purchase price the de-swered plaintiff's letter of October 10th, by fendant was to deliver to the plaintiff a writing to her in part as follows: warranty deed and an abstract of title. The plaintiff agreed to pay the taxes, and it was stipulated that the deed, when executed, should be subject to taxes accruing after the date of the contract. The writing contained the following provision: "And it is understood and agreed that time is of the essence of this contract, and that the party of the first part [the corporation] has the option to declare the amount paid thereon forfeited as reasonable rent for said premises, and this contract canceled, unless the payments hereinbefore mentioned shall be made at the time and place herein provided. And said party of the first part shall forthwith be released from the obligations both in law and equity arising out of this transaction." In addition to the initial payment of $50, the plaintiff made 24 payments. These 24 We "We regret very much that you do not feel justified in going ahead and completing your contract. It is against the policy of the company to pay anything for quitclaim deed or releases of property when sold. It is bad precedent and contrary to good business. would much rather have you go on and carry out your contract and acquire the property. If you do not care to do this, and will execute a quitclaim deed, we will prepare and send you one, and pay your $5.00. We have title to the lot and it is not necessary to do this, but we will do so in this instance." There was no further correspondence between the parties until March 26, 1919, when the defendant addressed a letter to the plaintiff, informing her that: "The time for payments stipulated in your contract with us of date October 2, 1911, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes agreeing to convey the following described property: Lots 21, 22, Blk. C, 1905 Add., having long since expired without such payments having been made, you are hereby notified that said contract is forfeit, canceled and voided and that your rights thereto are determined." were paid under and pursuant to the written contract. After denying all of the allegations in the complaint not expressly admitted, the answer continues by setting out a "further answer," which is designed to serve as the foundation for equitable relief. In The plaintiff promptly answered by ad- this "further answer" it is in effect allegdressing through her attorney to the defended that the defendant owned the two lots; ant a letter, which is dated April 4, 1919, that the defendant and plaintiff executed and, omitting the mere formal beginning and the written contract for the sale of the lots; ending, reads as follows: that no payments have been made except those already specified; that the plaintiff neglected to pay the taxes for the years 1915, 1916, 1917, and 1918; and that the defendant had no complete remedy at law. The answer concluded with a prayer for a decree foreclosing the contract. "In answer to yours of March 26th to Miss Winnie Epplett of this place, in which you state that the contract entered into between yourself and Miss Epplett on October 2, 1911, for the sale of lots 21, 22 in block C, East St. Johns addition, has been canceled and voided by you, and that Miss Epplett's rights thereto had been determined, will say that Miss Epplett accepts your rescission of said contract, and will make such rescission mutual, and hereby makes demand upon you for the sum of $356.50, the amount paid by her on said contract, together with legal interest from date of each payment by her upon said contract. The reply, besides denials, in effect declared that the defendant waived strict compliance as to time of payments; that after such waiver the defendant rescinded the contract, and that the plaintiff agreed to the rescission. On the day of the trial the court permit"Upon the payment of said sums, Miss Epp-ted the defendant to amend its answer by lett will execute and deliver to you, a quit- interlineation. The amendment is designatclaim deed upon payment of said sum. "I trust that you will favor us with a check for the amount paid on the contract by Miss Epplett, together with legal interest by return mail. You may send the same by draft with quitclaim deed attached, if you wish, and Miss Epplett will execute the quitclaim deed in accordance with your directions upon receipt of the money." Subsequently, but at some time in April, 1919, the plaintiff tendered a quitclaim deed to the defendant, and demanded a return of all payments made by her, together with in terest; but the defendant refused to return any of the payments, and "stated that said contract had been forfeited by said plaintiff, and she had no further rights in the same." Upon filing the complaint, the plaintiff deposited a quitclaim deed with the clerk of the court for delivery to the defendant upon repayment, with interest, of the moneys received by the defendant. ed as a "first, further, and separate answer and defense," and consists of three paragraphs. In the first paragraph it is alleged that on October 10, 1918, the plaintiff abandoned the contract and refused to perform further, and so notified the defendant. The second paragraph, in substance, states that no payments have been made except $358.50; that the balance of the purchase price was unpaid; and that the defendant was ready, able, and willing to convey upon payment of the purchase price. The third paragraph, according to the printed abstract, reads thus: "That thereafter said plaintiff elected to and did accept said abandonment." The parties stipulated that any new matter in the amendment "should be deemed denied by the plaintiff without filing a written reply." George P. Winslow and H. T. Botts, both of Tillamook, for appellant. George W. Gearhart, of Portland, for respondent. HARRIS, J. (after stating the facts as above). The plaintiff argues that, on the facts as found by the court, she is entitled The complaint alleges that the plaintiff paid $356.60 upon an agreement that when the full purchase price of $750 "should be fully paid" the defendant would convey the property by warranty deed to the plaintiff; that the defendant rescinded and repudiated the contract, notwithstanding the plaintiff "had fully complied with all the obligations and covenants on her part to be performed to a judgment. This argument proceeds on under said contract and was not in default therein"; that plaintiff waived her right to specific performance and damages, and consented to the rescission; and that she tendered a quitclaim deed and demanded the return of the moneys with interest. the theory that the defendant's letter of March 26th constituted a repudiation and rescission of the contract. The defendant meets this argument by saying that the letter of March 26th was an affirmance of the forfeiture clause in the contract, and thereThe answer admitted that between October fore was not a repudiation and rescission of 1, 1911, and October 13, 1916, the plaintiff the contract. Under the rules as establishpaid $358.50 in installments and on dates ed by prior precedents in this state, the |