and that 111 crates fancy grade were invoiced at $2.50 at the same place. The report also contains a statement of the manner in which the injury evidently occurred; states that the consignee will repack the tomatoes, send claim for damages, and put in claim for repacking, and that the goods are "not damaged over 40 per cent." It is marked as "Registered March 28, 1914," and is signed "M. F. Criger, Inspector," besides bearing other business notations. The statement is general and may require explanation. There was evidence, therefore, tending to show that within the 10 days at the place of the ultimate destination of the shipment the claim was made to the Southern Pacific Company

There was no evidence to show that the items represented the actual loss occasioned by the damage to the goods. No person acquainted with the market value of the product was questioned as to the difference between that and the value of the article in its damaged condition, or the difference between the invoice price and the value of the commodity in its injured state, although a witness was called who could apparently have given some light on the matter if he had been interrogated. According to the elementary rule of law the evidence was properly excluded. It is claimed by defendant that there was no proof of damages. The court ruled that no written notice had been given as required and granted a nonsuit. The plaintiff, how-in writing. It appears to be sufficient to inever, showed that the goods had been materially damaged; that 65 crates of tomatoes were "completely smashed," and the invoice price was stated at $2 and $2.50 per crate. There appeared to be no particular contro versy as to this price; therefore, taking the lower price named and applying the rule agreed upon in the bill of lading, there appears to be a definite amount of loss shown

as to 65 crates. Under the evidence the

plaintiffs would be entitled to some damages

if the law is in their favor. Hence it is nec

essary to examine the law applicable to the

case.

form the carrier that the consignee claims damages for the entire loss of a part of the goods and for injury to another portion, and to bring to the attention of the carrier's representatives the condition of the shipment. We do not consider it a matter of moment which one of the two men who examined the goods wrote the statement, or whether it was written by some third person. There is no the shipper or the consignee shall sign the requirement in the stipulation quoted that claim. The written claim does, however, in

form the carrier who the claimant is. No [2, 3] The second contention of defendant particular form of notice is specified or made is that no notice of a claim was given in writ-requisite by clause 8, or by the form of the ing by the plaintiff within 10 days after delivery of the shipment as required by the bill

bill of lading approved by the Interstate Commerce Commission. We do not understand that the conditions on a bill of lading are approved by the Interstate Commerce Commission for any fanciful or "red tape" purpose, but to meet the actual conditions of business life and mutually to protect the carrier and the shipper or consignee in the ordi

of lading. On the contrary, the plaintiff claims that the written statement made at the time of the arrival and inspection of the car of goods was a sufficient compliance with the requirement and that defendant waived any more formal notice. The position of defendant is that under the rules of the Inter-nary everyday affairs of transportation of state Commerce Commission it had no authority to pay any part of the claim unless it was presented within 10 days from the date of the delivery of the shipment to the consignee.

Mr. F. T. Stone also stated, in substance, that when he called the inspector of the Southern Pacific Company they together examined the contents; that "we made out the report"; that Mr. Criger wrote the statement, and "I figured that was writing enough." Though the document is somewhat crude it appears therefrom that it is headed, "Report of Inspection of Damaged Freight, S. P. Co.," bears the date "East Portland, 3/14/ 1914," and the name of the claimant "United Brokers' Company." It evidences a shipment of tomatoes shipped by H. C. Schroeder from Jacksonville, Fla., Car Fruit Growers' Express 21645; that the goods were damaged in a sum "not over $147.30"; that 166 crates of the tomatoes were "mashed, bruised, and crates broken"; that 65 of them were almost an entire loss; that 55 crates choice grade were invoiced at $2 f. o. b. Jacksonville,

the products of the country from one place to another. Georgia, Florida & Alabama Ry. v. Blish Mill. Co., 241 U. S. 190, 198, 36 Sup. Ct. 541, 60 L. Ed. 948.

A stipulation as to notice of a claim for injury to goods while being transported by a common carrier should be given a reasonable construction, and a substantial compliance therewith on the part of those for whom the shipment is made is all that is required, having in view the object and purpose of the requirement of notice. 4 R. C. L. p. 796, § 254; Atchison, Topeka & S. F. R. Co. v. Temple, 47 Kan. 7, 27 Pac. 98, 13 L. R. A. 362; Hoye v. Penn. R. Co., 14 Ann. Cas. 414, 417, note. It has been held that formal written notice of the loss sustained is not required, because the purpose of the written notice is fully accomplished when the condition of the shipment is clearly brought to the attention of the representatives of the company. When a shipper on receiving goods in a damaged condition signs a receipt under protest, it has been held that that constitutes sufficient notice to the carrier that the shipper intends to

enforce his rights. 4 R. C. L. p. 796, § 254; | plaintiff makes out a prima facie case by proHinkle v. So. Ry. Co., 126 N. C. 932, 36 S. E. ducing the receipt of the initial carrier ac348, 78 Am. St. Rep. 685.

In Georgia, Florida & Alabama Ry. Co. v. Blish Mill. Co., supra, after some correspondence in regard to a shipment of a carload of flour, the shipper telegraphed to the manager of the carrier five days after arrival of the goods at destination as follows:

"We will make claim against railroad for entire contents of car at invoice price. Must refuse shipment as we cannot handle.'

It was held that the message fulfilled the requirement of the stipulation in the bill of lading that the claim should be made in writing. Mr. Justice Hughes said at page 198 of 241 U. S., at page 545 of 36 Sup. Ct.. 60 L. Ed. 948:

knowledging that the freight was delivered to it in good order. Seller v. Steamship Pacific, 1 Or. 410, 413, Fed. Cas. No. 12644; Hastings v. Pepper, 11 Pick. (Mass.) 41, 42; Canney v. Am. Express Co., 222 Mass. 348, 110 N. E. 967, 968; 1 Michie on Carriers, p. 828; Hutchinson on Carriers (3d Ed.) § 158.

[5] Owing to an extension of time for briefs upon the point we have delayed an expression in regard to a preliminary question. The transcript of all the evidence was sent up to this court with the bill of exceptions, but was not formally made a part thereof. Prior to the argument counsel for plaintiff moved the court to be allowed to amend the certificate to the bill of exceptions "In the preceding telegrams, which passed be- and presented an amended certificate so as tween the parties and are detailed by the state court in stating the facts, the shipment had been to attach all the evidence. Under the rule adequately identified, so that this final telegram announced in McGregor v. O. taken with the others established beyond question the particular shipment to which the claim referred and was in substance the making of a claim within the meaning of the stipulation-the object of which was to secure reasonable notice. We think that it sufficiently apprised the car rier of the character of the claim, for while it stated that the claim was for the entire contents of the car 'at invoice price' this did not constitute such a variance from the claim for the value of the flour as to be misleading; and it is plain that no prejudice resulted. Granting that the stipulation is applicable and valid, it does not require documents in a particular form. It is addressed to a practical exigency and it is to be construed in a practical way."

The writing in the case at bar is more in detail than the quoted telegram in the case last mentioned, and is a substantial compliance with the stipulation in either of the bills of lading referred to in the answer. 10 C. J. pp. 328-336 (§ 489); Jenkins v. Atl. Coast Line, 83 S. C. 473, 65 S. E. 636. In our judgment the diversion of the goods in question while in transit does not materially change this case in view of the fact that the defendant pleaded a contract or bill of lading for the carriage of the goods over the last connecting line.

[4] In the absence of evidence locating the place of the damage to goods occurring while in transit over several connecting lines of railroad, the almost universal rule is that a presumption arises, where the goods are delivered to the initial carrier in good condition and are delivered by the terminal carrier in a damaged condition, that they were injured on the line of the last carrier, and the burden of proof is on the terminal carrier to show that the damage was not done on its line; that it occurred without its fault, or through the failure of the shipper to perform his contract. 4 R. C. L. §383, p. 925; 6 Cyc. 490-491; Lacey v. O. R. & N. Co., 63 Or. 596, 601, 128 Pac. 999; Gulf, C. & S. F. R. Co. v. Edloff, 89 Tex. 454, 34 S. W. 414, 416, 35 S. W. 144. In an action against a common carrier for damage to freight, the

R. & N. Co., 50 Or. 527, 93 Pac. 465, 14 L. R. A. (N. S.) 668, the correction is allowed. We consider the evidence in passing upon the motion for a nonsuit. The trial court erred in granting this motion. It follows that the judgment of the lower court is reversed and the cause remanded for a new trial.

MOORE, HARRIS, and McCAMANT, JJ., concur.

TUCKER v. KIRKPATRICK et al. (Supreme Court of Oregon. Dec. 18, 1917.) 1. APPEAL AND Error 1009(3) WEIGHT OF EVIDENCE-SPECIFIC PERFORMANCE.

The findings of the lower court on conflicting evidence in suit for specific performance of a contract are entitled to great respect, as he sees the witnesses and hears their testimony. 2. SPECIFIC PERFORMANCE -121(4)—WATER RIGHTS RIGHT TO DITCH LAND OF ANOTHER-EVIDENCE.

In a suit for specific performance of a parol agreement for a division of water rights and a right to run a ditch across the defendant's land, held, there was a preponderance of the evidence supporting a finding that the agreement was made, and was clear, just, and reasonable. 3. SPECIFIC PERFORMANCE 43-PART PERFORMANCE-PAROL AGREEMENT.

Where one who used his share of the water for a year and built a pipe line and ran the cient part performance to take out of the statwater across defendant's land, there was suffiute of frauds a parol agreement to rebuild a flume in return for one-fourth of the water right and the right to run the water across defendant's land.

4. SPECIFIC PERFORMANCE 131-DECREERIGHTS OF OTHERS NOT PARTIES.

In suit for specific performance of an agreement by defendant to give plaintiff and another claimed one-fourth, it was error to decree the one-half of a water right, where plaintiff only one-half to plaintiff until the other, not a party, paid plaintiff amount of a lien he held on his share.

Department 2. Appeal from Circuit Court, Hood River County; W. L. Bradshaw, Judge. Suit for specific performance of an agree

ment to divide a water right by W. F. Tuck- | given a right of way for road purposes over er against George Kirkpatrick, E. E. Stan- the property of plaintiff. The defendant ton, as County Judge of Hood River County, Kirkpatrick appeals.

Or., and E. Hawks and J. O. Hannum, as S. W. Stark and H. B. Adams, both of Commissioners of said County. On demur- Portland, for appellant. Ernest C. Smith, rer, suit dismissed as to the county officials. of Hood River, for respondent. From a decree for plaintiff against him, George Kirkpatrick appeals. Modified and affirmed.

MCCAMANT, J. (after stating the facts as above). [1] The first question to be determined on this record is one of fact. The testimony is irreconcilable on the vital question of whether the contract was made as alleged. The lower court saw the witnesses and heard their testimony. His opportunities for determining the issue of fact arising on this conflicting testimony were better than ours, and great respect is due to his findings. Scott v. Hubbard, 67 Or. 498, 505, 136 Pac. 653; Hurlburt v. Morris, 68 Or. 259, 272, 135 Pac. 531; Goff v. Kelsey, 78 Or. 337, 348, 153 Pac. 103; Shane v. Gordon, 84 Or. 627, 630, 165 Pac. 1167.

[2] Plaintiff and his witness George H. Frey testify positively and clearly that in April, 1914, appellant sought an interview with plaintiff; that he informed plaintiff that his flume was worn out and would no longer carry water; that appellant was without means to repair it; that he agreed to give plaintiff and his neighbor, H. H. Gramps,

This is a suit for the specific performance of a parol agreement for the division of a water right which prior to the agreement had been the sole property of the defendant Kirkpatrick. It appears that the said defendant in 1905 located a homestead in the upper Hood River Valley, and that in 1907 he constructed a flume and ditch for the diversion of a stream named Rim Rock creek, or Cat creek, which rises on the forest reserve and empties into the East fork of Hood river. Plaintiff's property adjoins that of the defendant Kirkpatrick on the west. Plaintiff alleges that early in the year 1914 the flume built by the defendant Kirkpatrick had become dilapidated, and that its replacement was necessary; that an agreement was thereupon made whereby plaintiff replaced the flume in consideration of a right to one-fourth the water in the creek. The agreement, as alleged in the complaint, also provided that plaintiff should have an ease-one-half the water if plaintiff would replace ment or right of way across the premises of defendant Kirkpatrick for the flow of the water, and that said defendant should have a right of way for a road across plaintiff's property. The complaint alleges performance of the agreement and the use of the water in accordance therewith until August, 1915, when the defendant Kirkpatrick shut it off. It is alleged that thereupon said defendant instituted proceedings in the county court for Hood River county for the establishment of a public road across plaintiff's premises. The complaint joined the county judge and commissioners of Hood River county as defendants. The prayer was that the proceedings in the county court be enjoined that a road be located as provided in the agreement; that plaintiff be adjudged to be owner of the water right and easement claimed by him; and that defendant be enjoined from interference therewith.

On demurrer the complaint was dismissed as to the county officials. The answer of the defendant Kirkpatrick denies the agreement relied on, and admits that he is using all the water in the ditch. The answer affirmatively asserts title in the defendant Kirkpatrick to all water in the ditch and a necessity on his part to its use for the irrigation of his property. The reply denies the material affirmative allegations of the

answer.

The lower court decreed to plaintiff onefourth of the water in question and a right of way for the ditch over the lands of the

the flume; that plaintiff accepted appellant's proposition at a subsequent interview, agreeing also as a part of the contract that appellant should have a right of way over plaintiff's property to reach a county road on plaintiff's north line; that, pursuant to this arrangement, plaintiff purchased 400 feet of pipe in Portland, and expended $118.50 for labor and materials; that as a result of this expenditure the flume was replaced by a pipe line, the ditch was cleaned out, and the water was made available to the parties, appellant assisting by his labor, for which he was not paid; that the water continued to flow over appellant's premises and to be used by both parties for more than a year until August, 1915, when appellant shut it off.

These witnesses are corroborated by Earl N. Shahan, who testifies that appellant told him in July, 1915, that plaintiff was entitled to half the water in the ditch.

So far as the making of the agreement is concerned, appellant's case rests wholly on his own testimony. He squarely denies that any agreement was made. He proves that the amount of water in the ditch is inadequate for his own purposes, and argues that it is unlikely that he would make the contract alleged. The answer to this argument is that it appears that the flume required replacement, and that appellant was without means to replace it. Unless the necessary work was done, the water would flow in its natural channel, and would be available neither to appellant nor to plaintiff. Under

plaintiff was a natural agreement for appel- | whose property adjoins plaintiff's on the lant to make.

Appellant admits that plaintiff purchased the pipe and paid laborers for putting it in place. He claims that plaintiff incurred this expense under an arrangement with Agnes Walls Parsons, to whom appellant gave an option to purchase his property. Mrs. Parsons was not called as a witness, nor does appellant testify to any agreement between her and plaintiff. The option was given May 5, 1914. It recited a cash payment of $175, and the evidence fails to show that anything further was paid on it. The purchase price called for by the option was $7,000. Appellant testifies that Mrs. Parsons surrendered her option in July, 1914. It is most unlikely that the holder of this option contracted for the permanent improvement of the place. The option is silent on the subject of a water right, and appellant did not therefore lay himself open to an action for damages by entering into the contract alleged by plain

tiff during the life of the option.

The admitted facts that plaintiff defrayed the expense of installing the pipe line and that defendant co-operated by donating his labor strongly corroborate plaintiff's testimony. On the whole case the preponderance of the testimony supports the conclusions of the lower court that the agreement was made as alleged.

south. It may be that plaintiff is entitled to a lien or charge on this water, but such lien cannot be adjudicated in this suit, to which Gramps is not a party. Plaintiff alleges that he is the owner of one-fourth of the water in this ditch. So much of the decree as awards him a larger share is without the issues and should be eliminated. The decree, so modified, is affirmed. Neither party will recover costs on appeal.

It is improper for the trial judge to vacate the bench and direct the parties to present their testimony before the court reporter. 3. CONTRACTS CONTRACTS.

112- VALIDITY IMMORAL

by the fact that the parties indulged in meretri-
cious relations, so that plaintiff, on defendant's
refusal to carry out the agreement, cannot re-
cover on notes the consideration of which was
the services and funds advanced.
4. BREACH of Marriage PROMISE

20—Ac

Where plaintiff, a married man, on the [3] Appellant contends that a parol agree- strength of an agreement by defendant, a woment of this character is void. Plaintiff ad- man, to marry him on procuring a divorce from mits that the agreement is within the stat- his wife, coupled with a reciprocal promise on his part, advanced money to defendant and perute of frauds, but relies on part performance formed services for her benefit without any exto take it out of the operation of the stat- pectation of reimbursement, the transaction was ute. In order that a parol agreement creat-immoral and illegal, and being further tainted ing an interest in real property may be enforced, it "must be clear, definite, just, reasonable and mutual in all its parts." Wagonblast v. Whitney, 12 Or. 83, 88, 6 Pac. 399; Odell v. Morin, 5 Or. 96; Knight v. Alexander, 42 Or. 521, 524, 71 Pac. 657. We think that plaintiff's proof satisfies these requirements. The part performance shown by the evidence is referable to the contract, and under the Oregon decisions is adequate. Coffman v. Robbins, 8 Or. 278, 284; Combs v. Slayton, 19 Or. 99, 104, 26 Pac. 661; Broom v. Thompson, 25 Or. 559, 566, 567, 37 Pac. 57, 42 Am. St. Rep. 806; Garrett v. Bishop, 27 Or. 349, 354, 41 Pac. 10; Bowman v. Bowman, 35 Or. 279, 281, 57 Pac. 546.

TIONS-BURDEN OF PROOF. One asserting a breach of marriage promise has the burden of proving the same. 5. BREACH OF MARRIAGE PROMISE TIONS EVIDENCE.

23-AC

In an action for damages for breach of marriage promise, plaintiff asserting that after a new promise by defendant to marry him he deMc-stroyed notes evidencing her indebtedness, evidence held insufficient to establish such promise.

[4] The decree of the lower court contained the following provision:

"That the plaintiff also has and possesses the right to divert from said stream at said point, and through said ditch and pipe line to said place, and for said purposes an additional onefourth of the water flowing in said stream until such time as there shall be paid to plaintiff by the owner of the land adjoining plaintiff's said land on the south or by the defendant Geo. Kirkpatrick the sum of $29.62, with interest from June 1, 1914."

This language referred to that part of the water which belonged to H. H. Gramps,

Department 2. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Arthur P. Olson against Mollie M. Patton Saxton. From a judgment for defendant, plaintiff appeals. Affirmed.

This was an action for breach of promise of marriage. The complaint alleges, in substance, that about September 19, 1909, the defendant, for value, executed and delivered to plaintiff three promissory notes for $500 each, with interest thereon at 5 per cent. per annum, and that on December 25, 1913, the notes were destroyed by plaintiff and defendant; that in consideration of the surrender