V. OPERATION AND EFFECT. (A) Transfer of Title as Between Parties, 201 (4) (Mont.) Where one at D. ordered goods at a certain price delivered, and they were shipped, without knowledge of purchaser, in a pool car to B., to be forwarded by the consignee, title did not pass to purchaser, and seller could recover them from consignee, a creditor of purchaser.-Old Kentucky Distillery v. Stromberg-Mullins Co., 169 P. 734. VI. WARRANTIES. 287 (4) (Kan.) Buyer's return of threshing machine which had proved worthless for purpose for which it was bought, and guaranteed, held substantial compliance with contract provisions as to place to which it was to be returned. Emerson-Brantingham Implement Co. v. Willhite, 169 P. 549. VII. REMEDIES OF SELLER. (E) Actions for Price or Value. 354(1) (Or.) Averment in answer that plaintiff supplied defendant as trustee with goods with the understanding and with positive agreement that goods were to be paid for pro rata, and that defendant was not bound nor held personally, and was only liable as such trustee, when liberally construed as provided by L. O. L. § 85, was a claim by defendant to be entire ly exempt, and that plaintiff was to look to trust estate entirely for the purchase price. Rothchild Bros. v. Kennedy, 169 P. 102. 354(9) (Or.) In action for hay sold, a denial that more than a certain part was delivered, with affirmative allegation that plaintiffs failed to deliver the balance contracted for, amounted to no more than affirmative denial, and not pleading of breach of the contract to deliver all the hay as a counterclaim or defense.-Stillwell v. Hill, 169 P. 1174. 358(1) (Cal.App.) In action for price of machinery question as to expense of sending fruit to cold storage while the fruit-canning machinery bought of plaintiff's assignor was out of order was properly excluded, where expense was not incurred and was not claimed by defendant as element of damages.-Burrell v. Southern California Canning Co., 169 P. 405. 363 (Kan.) In an action for the price agreed to be paid for a carload of melons, held not error to overrule a demurrer to plain tiff's evidence.-Bruce v. Hayes, 169 P. 199. 363 (Okl.) In action against drawee bank, buyer, and its agent to recover price of certain hogs, evidence held insufficient to entitle plaintiff to recover against the bank and the buyer, so that its demurrer to the evidence was properly sustained.-Schenbeck v. First Nat. Bank, 169 P. 619. 364(5) (Cal.App.) In action for price of as to what constituted a sufficient selection and identification.-Adams v. Guiraud, 169 P. 580. (F) Actions for Damages. 384(3) (Utah) Where evidence showed that horses were worth at least $20 a head more than contract price, seller could not recover any substantial damages for failure of defendants to receive and pay for horses according to contract.-Love v. St. Joseph Stock Yards Co., 169 P. 951. VIII. REMEDIES OF BUYER. (C) Actions for Breach of Contract. 406 (Cal.App.) Where buyers demanded delivery subsequent to time delivery was due,' and sellers notified buyers they would make no further delivery, buyers' cause of action ac crued, under Civ. Code, §§ 1439, 1440, without previous performance or offering to perform condition of payment.-Donlon v. Meyer, 169 P. 447. 411 (Cal.App.) In action by buyers of goods against sellers for breach of contract, if either construction of complaint concerning demand to uphold its validity be correct, in absence of special demurrer, it must be held complaint stated cause of action on original contract.-Donlon v. Meyer, 169 P. 447. 418(2) (Or.) Measure of damages for breach of contract of sale is difference between contract price and market value at the time and place of delivery, or within reasonable length of time thereafter.-Stillwell v. Hill, 169 P. 1174. Rule limiting damages for nondelivery of hay to the difference between the contract and market price at the time and place of delivery would not be affected by the sellers' further failure, under the contract, to furnish a feeding place for the purchasers' stock, necessitating buying hay at or transporting it to another place.-Id. 418 (19) (Cal.App.) In action for purchase price of machinery, purchaser could not claim damages sustained by reason of nonuser of capacity of its plant as a whole during canning season, due to defects in certain machinery; such damages being speculative and not in contemplation of the parties.-Burrell v. Southern California Canning Co., 169 P. 405. IX. CONDITIONAL SALES. 450 (Kan.) Agreement to make a second test of machine's usefulness after first test had demonstrated its unfitness held to create new contract of conditional sale, but not to which had been extinguished by failure of conrevive chattel mortgage covering machine, etc., sideration under first contract.-Emerson-Brantingham Implement Co. v. Willhite, 169 P. 549. SATISFACTION. See Payment; Release. machinery, which buyer used throughout can- SCHOOLS AND SCHOOL DISTRICTS. ning season, held, instruction that, to effect rescission, return or tender should be accompanied by offer of compensation, was properly given. Burrell v. Southern California Canning Co., 169 P. 405. 364 (5) (Colo.) An instruction that if you believe defendant informed the plaintiff he was no longer interested in purchasing 50 head of cattle, then plaintiff was not obliged to carry out his contract to sell, was not justified, where the words relied on for rescission were, "They are all your cattle; I am out of it."-Adams v. Guiraud, 169 P. 580. 364 (7) (Colo.) An instruction concerning identification of cattle purchased under an executory contract, "but where anything remains to be done by way of selecting out or separating the property, no title will pass,' held misleading, in the absence of an instruction See Mandamus, 79; Municipal Corporations, 211; Pleading, 180; Statutes, 64. II. PUBLIC SCHOOLS. (D) District Property, Contracts, and Liabilities. 81(2) (Or.) Under bond given in accordance with statute by contractor to erect building for school district, it is unnecessary for relator, in district's suit for its benefit, to show that labor or materials were supplied by it directly to the original contractor or any one.-School Dist. No. 45, Multnomah County, v. Hallock, 169 P. 130. Contractor to erect school building for school district, by secretly writing form of assignment on his duplicate of contract, could not give rise to new contract, and impose new contractor upon district, and make it and officers liable for not taking new bond.-Id. In so far as materialmen and laborers were concerned, assignment of contract by contractor with school district to erect school building to private corporation formed by him was no more than subletting of work.-Id. notice to contrary, of teacher after election for 81 (2) (Or.) Provisions of L. O. L. § 6266, See Intoxicating Liquors, 251, 256. SELECTION. district and to impose liability on the surety See Fraudulent Conveyances, 52. Under L. O. L. § 6266, as amended by Laws 1913, p. 59, surety's liability on bond of contractor with school district to laborers or materialmen held not affected by changes in the contract after its execution and delivery.-Id. 86 (2) (Or.) In view of L. O. L. § 6266, as amended by Laws 1913, p. 59, as to bonds of contractors with school district, contractor's SELF-DEFENSE. See Homicide, 244. SELF-SERVING DECLARATIONS. See Evidence, 271. SEPARATE ESTATE. denial that it agreed to pay any one except the See Husband and Wife, ~154. SEPARATION. school district held sham and to leave uncon- Where contractor's surety admitted execution of contract and bond and alleged changes SERVANTS. after the execution of the contract, evidence of See Master and Servant. (E) District Debt, Securities, and Taxa tion. 91 (Kan.) Gen. St. 1915, § 9081, relating to elections to vote on school bonds, was repealed by Laws 1917, c. 268, relating to issuance of bonds by boards of education in cities of the first class.-Board of Education of City of Wichita v. Clapp, 169 P. 1162. SERVICE. See Process, 86. SET-OFF AND COUNTERCLAIM. See Justices of the Peace, 93. II. SUBJECT-MATTER. 28(2) (Idaho) Where no breach of contract by one of the parties thereto is shown, there is no basis for counterclaim for damages accruing to the other party under such contract by reason of being compelled to complete it.— Thompson v. Cox, 169 P. 929. 95 (1) (Kan.) Fact that when school warrant is issued there are no funds in treasurer's hands to pay it, does not render it void, and when it is presented, it is duty of treasurer, under Gen. St. 1915, § 11699, to indorse it "Not paid for want of funds," and it then be-41 (Or.) Requirement of mutuality of decomes floating debt, under section 8929.-Home mands prevents a wife's being allowed to offset State Bank v. School Dist. No. 17, 169 P. 202. her claim for damages against a judgment 95 (3) (Kan.) Assignee of schoo! warrant against her husband to which she was not a parbecomes the owner of whatever claim the orig-ty, even though the judgment creditor is insolinal holder had against district for the indebted- vent and a nonresident.-Barnes v. Esch, 169 ness evidenced by warrant.-Home State Bank P. 512. v. School Dist. No. 17, 169 P. 202. 95(5) (Kan.) In action on school warrant issued for sum in excess of amount due creditor, but which is otherwise legally issued, court may properly give judgment for amount actually due.-Home State Bank v. School Dist. No. 17, 169 P. 202. 44(2) (Or.) Notwithstanding rule against set-off of partnership demands and demands due to individual partners, where all the partners agree with an individual that a set-off may be allowed, the stipulation will be enforced.Barnes v. Esch, 169 P. 512. SETTLEMENT. See Account Stated; Evidence, 213; Payment; Release. 97(4) (Mont.) Laws 1917, c. 167, authorizing bond issues for county high schools, held invalid as to provision requiring submission of bond issues to voters in districts outside those maintaining district high schools, and therefore election on bond issues was properly submitted to all voters of the county.-Hamilton v. Board See Drains. of County Com'rs of Fergus County, 169 P. 729. 97(4) (N.M.) Municipal school district bonds authorized at a special election called and conducted by board of education, instead of by city council and mayor as provided by statute, are invalid.-Barry v. Board of Education of City of Clovis, 169 P. 314. 111 (N.M.) Where municipal school dis trict bonds are invalid because authorized at an election conducted by board of education instead of city council, their issuance and sale may be enjoined.-Barry v. Board of Education of City of Clovis, 169 P. 314. (G) Teachers. 140 (Mont.) Laws 1913, c. 76, subc. 8, § 801, as to automatic re-election, in absence of SEWERS. SHERIFFS AND CONSTABLES. See Damages, 48. II. COMPENSATION. 65 (Cal.) Woman designated under Pen. Code, § 1616, as added by Act April 15, 1911 (St. 1911, p. 924), to have charge of female prisoners, held to be paid by sheriff out of his salary pursuant to Pol. Code, § 4290.-Santa Barbara County v. Janssens, 169 P. 1025. 76 (Cal.) Under Pol. Code, § 4005b, where sheriff's assistant was paid out of county treasury, though he approved the claim, held, that the money could not be recovered by the county from the sheriff.-Santa Barbara County v. Janssens, 169 P. 1025. III. POWERS, DUTIES, AND LIABIL- SIGNALS. See Railroads, 330. SILENCE. 118 (Cal.App.) Under Pol. Code, § 4166, sheriff could not show oral instructions to release attachment on realty and place it upon money in escrow for defendant in attachment, See Estoppel, ~95. and was liable to plaintiff in attachment for amount of judgment not satisfied by reason of such release.-Robinson v. Baker, 169 P. 694. 138(2) (Kan.) In action against constable for a forcible and malicious levy, it was proper to inquire into his financial condition, so that the finding as to punitive damages might be intelligently made.-Townsend v. Seefeld, 169 P. 1157. SPECIAL DEPOSITS. See Banks and Banking, 153. SPECIFICATION OF ERRORS. See Appeal and Error, 362, 724. SPECIFIC PERFORMANCE. 139(1) (Kan.) In action against a constable for a malicious levy allowance of actual dam- See Action, 45; Pleading, 193. ages held properly based on physical and mental suffering, and not alone on nervous shock.Townsend v. Seefeld, 169 P. 1157. 139(4) (Kan.) Findings following plaintiff's evidence held to convict defendant constable of such malicious conduct in making a levy as to justify the imposition of smart money.-Townsend v. Seefeld, 169 P. 1157. 140 (Kan.) In action against constable for malicious levy instructions following claims set forth in pleadings, etc., where none were requested by defendant, held to sufficiently cover the issues.-Townsend v. Seefeld, 169 P. 1157. IV. LIABILITIES ON OFFICIAL BONDS. 169 (Wash.) Where constable, who was also town marshal, made an arrest outside the town, held, that it would be presumed, in an action on his bond, that he assumed to act as the officer of the territorial jurisdiction.-Greenius v. Moore, 169 P. 976. SHIPPING. See Account Stated, 2. II. TITLE. II. CONTRACTS ENFORCEABLE. ~28(2) ̧ (Cal.App.) Where under an unsigned memoranda of lease defendants went into possession and made improvements under promise of the execution of a lease, they cannot enforce specific performance where the memoranda left for future settlement, terms and payment of rents, leveling of land, and purchase of plaintiffs' implements.-Durst v. Jolly, 169 P. 449. 43 (Or.) Where one used his share of the water for a year and built a pipe line and ran the water across defendant's land, there was sufficient part performance to take out of the statute of frauds a parol agreement sought to be for one-fourth of the water right, and the right specifically enforced to rebuild a flume in return to run the water across defendant's land.-Tucker v. Kirkpatrick, 169 P. 117. ker to sell in the absence of specific authoriza65 (Colo.) Where defendant authorized bro tion in writing, purchaser to whom broker agreed in writing to sell was not entitled to specific performance.-Stark v. Rogers, 169 P. 146. IV. PROCEEDINGS AND RELIEF. 21 (Cal.) Part owners of a vessel are co-plaint for specific performance of contract to tenants and partners in the use of the vessel, but not partners in the ownership, and the partnership necessarily terminates when the vessel is lost or sold.-Ferem v. Olson & Mahony, 169 P. 386. Where a partnership in the use of a vessel was dissolved by the sale of the vessel under libel, one part owner had the right prima facie to an accounting.-Id. Where a vessel owned by a partnership was libeled, although the managing owner had power to make a general average loss adjustment, such adjustment was not conclusive and did not debar equity from calling for completion and settlement within the court.-Id. Under Civ. Code, §§ 2152-2154, as to adjustments of average loss, where the managing owner after libel of the ship failed to make a general average loss adjustment, he could not urge that the minority owners prematurely sought aid of equity because he delayed in making such adjustment.-Id. After a vessel is libeled, the managing owner is without authority to bind minority owners for subsequent costs, disbursements, and expenses. -Id. An adjuster, who adjusted the insurance on the freight earnings which was in its nature a partnership asset, was properly allowed a compensation against both the managing and the minority owners.-Id. SHOWS. See Theaters and Shows. SIDEWALKS. See Municipal Corporations, 761-819. 114(2) (Cal.) Under Civ. Code, § 3391, comconvey must show price was in fair proportion tion for contract, which was just and reasonto value of land, or was adequate consideraable.-Lynn v. Knob Hill Improvement Co., 169 P. 1009. 114(4) (Cal.) Under Code Civ. Proc. § 457, general allegation that plaintiff, purchaser of realty, seeking specific performance, had perallegation of performance of conditions precedformed all conditions of contract, was sufficient ent, as of payment.-Lynn v. Knob Hill Improvement Co., 169 P. 1009. 121(4) (Or.) In 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, a preponderance of the evidence held to support finding that the agreement was made. Tucker v. Kirkpatrick, 169 P. 117. 121 (9) (Cal.App.) Where a court is called upon to specifically enforce an instrument, it must ascertain the terms from the instrument itself, and a pleading cannot construe such instrument or supply deficiencies.-Durst v. Jelly, 169 P. 449. 126(2) (Wash.) Provision of decree of specific performance of contract for lease and for sale at expiration of lease, for inserting in lease stipulation as to sale, held warranted by the contract.-State v. Mackintosh, 169 P. 831. 131 (Or.) In a suit for specific performance of an agreement by defendant to give plaintiff and another one-half of a water right, where plaintiff only claimed one-fourth, it was error to decree the one-half to plaintiff until the other, not a party, should pay plaintiff amount of a lien he held on his share.-Tucker v. Kirkpatrick, 169 P. 117. SPLITTING CAUSES OF ACTION. See Action, 53. STATEMENT. See Justices of the Peace, 164. STATES. See Mandamus, 109; Public Lands, 166, 184. amended pleadings and where judgment was rendered for plaintiff, district court having jurisdiction of parties and subject-matter, it was too late to question its jurisdiction of appeal or to permit amendments to pleadings, though act creating city court was unconstitutional.-Neal v. Kent, 169 P. 1152. 64 (6) (Cal.App.) Section 6 of the abatement act, providing for punishment by contempt, is not a necessary or an inseparable part of the act, and may be entirely eliminated, and the remainder of act treated as valid.-People v. Casa Co., 169 P. 454. 64 (8) (Mont.) Laws 1917, c. 167, as to II. GOVERNMENT AND OFFICERS. issuance and payment of bonds for county 53 (Idaho) No authority exists for one high schools, is invalid only as to provision branch of the Legislature, acting independent permitting only voters in districts of county ly of the other, to bind the state for the comnot within district maintaining district high pensation of employés for work to be perform-school to vote on bond issues, and the remained after adjournment.-Griffith v. Van Deusen, 169 P. 929. III. PROPERTY, CONTRACTS, AND LIABILITIES. ing portions are valid.-Hamilton v. Board of County Com'rs of Fergus County, 169 P. 729. II. GENERAL AND SPECIAL OR LO- whether a general law can be made applicable to any given case, and make different laws for different classes of persons, which determination may not be interfered with by the courts, unless the classification is palpably arbitrary.People v. Casa Co., 169 P. 454. 108 (Or.) It was right of surety of contrac76(1) (Cal.App.) Legislature may determine tor to install plumbing for state to fulfill contract on principal's default.-Derby v. United States Fidelity & Guaranty Co., 169 P. 500. When surety of contractor with state to install plumbing had finished work on contractor's default and applied to Secretary of State for settlement, he had right to inquire whether surety had finished work and complied with bonds and paid persons supplying labor and materials.-Id. V. CLAIMS AGAINST STATE. 169 (Or.) When contractor with state to install plumbing abandoned work and surety performed, surety was entitled to settle accounts and liability under contracts and bonds with state through constitutional auditor, Secretary of State, pursuant to Laws 1913, p. 607.-Derby v. United States Fidelity & Guaranty Co., 169 P. 500. 182 (Or.) Decision of state's auditing officer as to correctness of claim of surety for contractor with state which has performed on contractor's default is only prima facie correct. and may be disputed; but it is not enough to cast doubts on oral testimony by mere crossexamination.-Derby v. United States Fidelity & Guaranty Co., 169 P. 500. VI. ACTIONS. 191(2) (N.M.) Ejectment against board of trustees of New Mexico Reform School, created by Code 1915, § 5109, and appointed by Gov: ernor, and made a corporate body, with right to be sued as such, was not "suit against the state."-Locke v. Board of Trustees of New Mexico Reform School, 169 P. 304. 77(1) (Cal.App.) The abatement act is not objectionable as special legislation, as such classification is justifiable, and in furtherance of the public policy of the state to suppress houses of prostitution.-People v. Casa Co., 169 P. 454. ~~181(1) (Or.) A statute is to be interpreted in accordance with the legislative intent.State v. Hyde, 169 P. 757. 188 (Cal.App.) The words of a statute must be interpreted according to their common acceptation, and if they have a technical as well as a popular meaning must be given their popular signification.-Perrin v. Miller, 169 P. 426. 194 (Or.) General words will be restricted in their application, when the effect of a different interpretation would be to apply them to a subject foreign to that on which the Legislature was acting.-State v. Hyde, 169 P. 757. 205 (Or.) Language found in a statute is to be interpreted in the light of the subjectmatter of the statute.-State v. Hyde, 169 P. 757. 201 (Or.) The doctrine of laches is appli.225 (Okl.) Where two statutes cover the same matter, and one part of them is susceptible cable to state.-State v. Hyde, 169 P. 757. of two constructions, and language of another part is clear and is consistent with one of such constructions and opposed to the other, the construction harmonizing all sections must be adopted.-Town of Comanche v. Ferguson, 169 P. 1075. STATUTE OF FRAUDS. See Frauds, Statute of. STATUTE OF LIMITATIONS. See Limitation of Actions. STATUTES. 226 (Or.) Where statute of one state or jurisdiction is subsequently enacted by Legislature of another state or jurisdiction, it will be assumed that construction placed on such statute by courts of jurisdiction from whence it was taken was also adopted.-Columbia Rock & For statutes relating to particular subjects, see Sand Co. v. Hibernia Sav. Bank, 169 P. SS. the various specific topics. I. ENACTMENT, REQUISITES, AND 63 (Kan.) Where case was appealed from city to district court, where both parties filed 226 (Or.) Whenever statute of other state is adopted in Oregon, construction placed on act by court of last resort of other state, made prior to enactment of statute in Oregon, controls interpretation, and decisions of the federal courts are guides in interpretation of Oregon statute copied from act of Congress.-School §§ 2792, 2809. 2897.. 652 2989.. Dist. No. 45, Multnomah County, v. Hallock, 228 (Or.) The term "enacting clause," in UNITED STATES. CONSTITUTION. Amend. 14..62, 454, 1040, 1144 STATUTES AT LARGE. 19 (D) Retroactive Operation. 263 (Cal.) Statutes shall be given a pro- STATUTES CONSTRUED. Art. 12, § 14.... Amended by Laws 1891, p. 425. 1895, Feb. 26, ch. 131, 28 1895, Feb. 26, ch. 131, § 3, 1897, June 4, ch. 2, 30 1901, March 1, ch. 676, 31 1902, June 30, ch. 1323, § 1908, May 27, ch. 199, 35 1908, May 27, ch. 199, § 9, $$ 852, 853, 1039. 717 $ 1870, subsec. 9. 65288 1635-1637, 1640, 1641..1007 487, 872. 862511.... 64582819, 2836, 2840, 2844 2508 1616 added by Laws 702 1056.. 667 453 CIVIL CODE. § 1161, subsec. 2. 449 250 67 $ 1238. 59 70 913 243, 913 913 .1017 .67, 913 67 436 396 |