fully in possession when the court appointed In brief, the properties shrunk from $778,a receiver, or if it be assumed that the deed 593.96, their appraised value when the Assets and bill of sale to Cobe rightfully transferred Realization Company entered into possespossession to the mortgagee and that the sion on September 6, 1913, to $175,000 when subsequent possession of the Monarch Mills the receiver was appointed. The Assets was the possession of the alienee of the Realization Company had had possession of mortgagee, nevertheless the appointment of the property for more than three years, and a receiver was warranted. It may be con-notwithstanding the fact that the monthly ceded that the general rule is that a mort- expense incurred in caring for the property gagee rightfully in possession of mortgaged exceeded the receipts from sales and rentals, property cannot be ousted by the appointment of a receiver at the instance of the mortgagor or one claiming under the mortgagor with out first paying or tendering the amount due on the mortgage debt; but this rule like most general rules has its exceptions. If the mortgagee is committing waste and is insolvent, equitable relief may be necessary. Brundage v. Home Sav. & Loan Ass'n, 11 Wash. 277, 39 Pac. 666; Bolles Agt. v. Duff, 35 How. Prac. (N. Y.) 481. no attempt was made to foreclose the notes and mortgage. In the language of Jacob Levin, the Assets Realization Company "failed." The mortgaged property was rapidly diminishing in substance and in value to the detriment of both the mortgagee and the judgment creditors. The facts warranted the appointment of a receiver. However, the appointment of the receiver should in no wise interfere with the foreclosure of the notes and mortgage; and, whenever the holder of the notes desires to sue, permission to do so should be promptly granted, and the quality and amount of the indebtedness can then be determined, the mortgaged property sold, and the proceeds of sale distributed. The conclusions herein expressed lead to an affirmation of the decree. MCBRIDE, C. J., and BENSON and BURNETT, JJ., concur. PURDY v. UNDERWOOD. (Supreme Court of Oregon. Jan. 8, 1918.) 1. FRAUD 14 STATEMENT OF MATERIAL FACTS-GOOD FAITH. Where a vendor of land by the acre states there are a certain number of acres in the tract, it renders him responsible for damages if there are less than stated, although he believed it to contain such amount. Attached to the bill of sale signed by the Monarch Lumber Company of Oregon on July 30, 1913, is an inventory showing the value of its assets. The total assets are appraised in the inventory at $1,078,063.50, the property accounts are fixed at $778,593.96, and the buildings and machinery are listed at $755,835.15. Under date of February 1, 1912, the Assets Realization Company prepared and sent to its customers, to induce them to purchase the notes acquired in September, 1911, a circular which among other things declares that the financial statement of the Oregon company "as of November 1, 1911," shows the millsite, sawmill, plants complete, and equipment, and the Kenton property to be worth $815,396.63; and that 'our timber expert states that the sawmill property, equipment, and real estate are worth $375,000 at quick sale; and that the entire property of the company could be disposed of within 60 days for $500,000." At the trial in June, 1916, Lester W. David tes-2. FRAUD 59(1)-SALES OF LAND-MEASURE tified that in his opinion the mill property was not reasonably worth more than $175,000 at that time. The Monarch Lumber Company of Oregon is hopelessly insolvent; the Mon arch Lumber Company of Maine has no prop erty and exists in name only; prior to June 1916, the Assets Realization Company had met with financial reverses, its Chicago office was closed, and its affairs were placed in the hands of a creditors' committee; Lester W. David "had to go through bankruptcy"; it is a fair inference to say that the plight of the David Investment Company was neither better than its owner, Lester W. David, nor than the concern owned by it, the Monarch Lumber Company of Oregon. If the Monarch Mills is to be considered as an alienee of the mortgagee and that it was rightfully in possession of the property, then it is plain, from the record presented on this appeal, that it does not measure up to the financial standard which is necessary to enable it to retain possession. OF DAMAGES. Where a purchaser buys what the vendor states to be 112.5 acres of land at $50 per acre and there are only 78.76 acres, the vendee is entited to recover the excess paid in an action for fraud, even though he sold the same for as much as he paid without knowledge of the shortage; although the measure of damages is different where property is exchanged, the measure of damages in such case being the difference between the value of the property given and that received. 3. MORTGAGES 38(1)—DEED GIVEN AS SECURITY EVIDENCE. Evidence held sufficient to warrant a finding that a deed absolute in form was intended only as security for a loan. 4. MORTGAGES 32(3)-DEED GIVEN TO SECURE LOAN-TITLE. A deed absolute in form given to secure a loan does not pass the title and is nothing more than a "mortgage." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Mortgage.] Department 2. Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge. Action by O, C. Purdy against I. C. Under-p C. Schuebel and Livy Stipp, both of Orewood. Judgment for plaintiff, and defendant appeals. Affirmed. This is an action to recover damages for alleged fraudulent representations. The facts involved are that on June 29, 1910, the defendant was the owner in Marion county, Or., of a tract of land the boundaries of a part of which he pointed out to the plaintiff telling him the real property contained 112.5 acres. The price demanded by the defendant was $55 an acre, but he offered to take in cash $50, and thereupon a bargain was concluded whereby the plaintiff paid $5,625 and received a warranty deed describing the premises by metes and bounds "and containing in all 112 acres of land, more or less." The plaintiff in October, 1911, for the expressed consideration of one dollar, executed to his wife, Ella Purdy, a warranty deed conveying the land by the same description and asserting that the premises contained the same area as set forth in the deed which he received from the defendant. About December 1, 1915, the plaintiff procured a survey of the real property, much of which was covered with brush, and, the boundaries being very irregular, he then discovered that the premises contained only 78.76 acres. This action was commenced January 29, 1916, the complaint charging that the defendant, intending to cheat and defraud the plaintiff, falsely and fraudulently represented to him that the land contained the number of acres as stated; that the plaintiff not knowing the area of the premises, but believing and relying upon the statements so made by the defendant, paid him at the rate of $50 an acre, and thereafter discovered that the realty contained only 78.76 acres; that such representations were known by the defendant to be false when they were uttered, particularly stating wherein they were untrue; and that by reason thereof the plaintiff had been damaged, etc. The answer denied the material averments of the complaint, and for a further defense alleged that on October 2, 1911, for the full and valuable consideration demanded by the plaintiff, he sold and conveyed the entire real property to Ella Purdy, who ever since has been and then was the owner thereof, and that the plaintiff had no right, title, claim, or interest of any kind whatever in or to the land or any part thereof. A demurrer to the allegations of new matter in the answer, on the ground that the facts stated were insufficient to constitute a defense, was sustained. By stipulation of the parties the cause was tried without the intervention of a jury, whereupon the court from the evidence received made findings of fact and of law in conformity with the averments of the complaint, and thereupon rendered judgment for $1,687 against the de gon City, for appellant. Chas. T. Sievers, of Oregon City (Brownell & Sievers, of Oregon City, on the brief), for respondent. MOORE, J. (after stating the facts as above). This action is not founded upon an alleged breach of warranty as to the number of acres specified in the deed, which instrument it will be remembered limits the premises particularly described by metes and bounds, by the clause "and containing in all 1122 acres of land, more or less." A textwriter in speaking of such a restriction says: "When land is described, and the quantity is stated with the qualification 'more or less,' these words are used as an approximate designation of the quantity contained within the boundaries, and do not refer to the state of the title." Devlin on Deeds, § 1046. This author further remarks: "Neither party has a remedy against the other is so great as to afford a presumption of fraud." for the excess or deficiency unless the difference Id., § 1044. In a note to the case of Kitzman v. Carl, 133 Iowa, 340, 110 N. W. 587, 12 Ann. Cas. 296, 297, it is observed: "The general rule is that where land is sold by metes and bounds or by a definite description, and is estimated to contain a specific quantity, qualified by the words 'more or less,' the recital the warranty as to the specific quantity on the of the words 'more or less' implies a waiver of part of the buyer, and an agreement on the part of the seller not to demand more than the fixed price. By the use of these words the statement of the number of acres becomes descriptive merely, and not of the essence of the contract. The vendor assumes the risk as to the price paid, and the vendee assumes the risk as to the quantity of the land."" At page 299 of 12 Ann. Cas. it is further said: the represented quantity of land sold, especially in the sale of land by the acre, is so great as to indicate mistake, the words 'more or less' will not cover it, inasmuch as they are construed to apply to a reasonable excess or deficit, and in such cases a court of equity will grant relief." "Where the difference between the real and Whether or not these rules are controlling herein is unimportant, for the question is not involved, since the complaint does not refer to any covenant contained in the deed, and the action is predicated upon the alleged fraud and deceit of the defendant in representing that the land conveyed contained a specified number of acres, when the area of the premises was only 70 per cent. thereof. [1] The evidence shows that when the defendant purchased the real property in question his grantor stated to him the premises contained 112.5 acres; that the land had not been surveyed, nor did Mr. Underwood know the actual contents thereof, except as thus informed; and that he told the plaintiff, when he pointed out to him a part of the boundaries, that the realty included the num was material and, though false, it was not consciously so; but that is immaterial, for the statement having been made without knowledge of its truth, and believed and relied upon by the plaintiff, renders the defendant responsible for the resulting damages. Kerr on Fraud, 54; Smith, Law of Fraud, § 45; Cawston v. Sturgis, 29 Or. 331, 43 Pac. 656; Poppleton v. Bryan, 36 Or. 69, 58 Pac. 767; Darling v. Miles, 57 Or. 593, 111 Pac. 702, 112 Pac. 1084; Bonelli v. Burton, 61 Or. 429, 123 Pac. 37; Joplin v. Nunnelly, 67 Or. 566, 134 Pac. 1177; McFarland v. Carlsbad Sanatorium Co., 68 Or. 530, 137 Pac. 209, Ann. Cas. 1915C, 555; Neilson v. Masters, 72 Or. 463, 143 Pac. 1132; Robertson v. Frey, 72 Or. 599, 144 Pac. 128; Jeffreys v. Weekly, 81 Or. 140, 158 Pac. 522. [2] It is argued by defendant's counsel that the plaintiff is not entitled to recover herein, because he sold and conveyed to his wife the real property by the same descriptions and covenants as set forth in the deed that he secured, which transfer of the title was made while he was ignorant of a shortage in the stated area of the land, and, as he is not responsible to her for any deficiency in the number of acres, he did not sustain any damages, and for that reason an error was committed in refusing to make a finding as requested and in rendering the judgment given him. In 20 Cyc. 136, it is said: "The rule established by the weight of authority appears to be that if a purchaser, through fraud practiced upon him, has paid a higher price than the property was worth, and the fraud is actionable in its character, then he is entitled to recover for the injury occasioned by such fraud, notwithstanding any subsequent disposition he may make of the property, and hence a recovery cannot be defeated, or the amount of damages reduced, by showing that plaintiff has sold the property for the same amount that he paid for it, or for a larger amount than he claims its real value to have been." See, also, upon this subject, Smith, Law of Fraud, §§ 250 and 298. In Medbury v. Watson, 6 Metc. (Mass.) 246, 256, 39 Am. Dec. 726, in discussing this subject, Mr. Justice Hubbard states the contention made by a party and gives the reason for refuting it. He says: "But it is further argued that the father, having sold out his share of the property for the same amount which he gave, has sustained no loss, and so there can be no recovery by the present plaintiffs. But this suggestion, though plausible, is not sound. What the party sold the property for is not the rule by which to measure the damages; otherwise, it might make the question of fraud to depend upon the rise or fall of the property in the market, upon fluctuations in the value, arising from causes in no way connected with the fraud complained of. As well might an underwriter contend that the insured has sustained no injury, because his goods, though partially damaged by a peril insured against, have sold, even in their damaged state, for more than their actual cost. If the father, through fraud practiced upon him, paid a higher price than the estate was worth, and the fraud was actionable in its character, then he is entitled to recover for the injury occasioned by such fraud, whatever disposition he afterwards made of the property; whether he sold In Teachout v. Van Hoesen, 76 Iowa, 113, 40 N. W. 96, 1 L. R. A. 664, 14 Am. St. Rep. 206, it was ruled that the fact that a person had sold all his stock in a corporation did not prevent him from maintaining an action for fraudulent representations whereby he was induced to become a stockholder therein. In McKay v. McCarthy, 146 Iowa, 546, 123 N. W. 755, 34 L. R. A. (N. S.) 911, it was held that the fact that one defrauded into purchasing stock of a corporation had parted with it did not affect his right to hold the person guilty of the fraud liable for the damages caused thereby. It is contended by defendant's counsel that the rule thus recognized is not available in Oregon, where the measure of damages in such cases is the difference between the actual value of the property at the time of the purchase and the price paid therefor, and that as the plaintiff, for a valuable consideration, sold and conveyed the real property as containing 112.5 acres, before he knew of the deficiency in the area of the premises, he sustained no damages, citing, in support of the principle so asserted, 20 Cyc. 42 and 43. They also call attention to decisions of this court which will be reviewed. Thus in McMillan v. Batten, 52 Or. 218, 96 Pac. 675, the defendant sought to rescind a sale of shares of corporate stock on the ground of fraud and deceit. No damages were demanded, but a recovery of the purchase price in assumpsit as money had and received was asked. In Sperry v. Stennick, 64 Or. 96, 129 Pac. 130, the plaintiffs were the holders of many shares of the capital stock of a corporation, which legal entity was induced, by the defendant's fraudulent representations, to pay $7,000 on account of the purchase of a supposed interest in land, taking a deed therefor. The plaintiffs thereupon surrendered all their interest in the corporation, obtained from it, for a valuable consideration, a deed of the supposed estate in the land, and, thereafter learning of the fraud, they elected to rescind, tendered a reconveyance, and demanded a repayment of the $7,000 as money had and received. No damages were demanded in that case. Salisbury v. Goddard, 79 Or. 593, 600, 156 Pac. 261, was an action, without rescission, to recover damages for alleged false representations whereby an exchange of property was consummated. In deciding that case it was said: "If therefore the plaintiffs received property of equal value of the lot which they conveyed. and the money they paid, they were not injured and sustained no damages." In that case the worth of the property received could be established only by testimony, while evidence of the mere amount of money paid was sufficient to substantiate that fact, since such medium of exchange is the measure and representative of all values. The legal principle invoked by defendant's one dollar as stated in the instrument, or paid more than the defendant received for the land, is unimportant, for the plaintiff was legally entitled to make such disposition of the real property as he pleased. As he paid for the premises $1,687 more than the land was worth at the price per acre as agreed upon, he is entitled to recover that sum by reason of the defendant's misrepresentations. No error was committed as alleged. changed. The conclusion thus reached does to be absolute, and whether she gave only not contravene the rule announced in Alden v. Wright, 47 Minn. 225, 49 N. W. 767, which is cited in 20 Cyc. 43, as upholding the doctrine for which defendant's counsel contend. In that case, which was an action of deceit, real property was exchanged for shares of corporate stock, and it was held that the measure of damages was the difference be tween the value of such shares and the prop erty received therefor. When, however, as in the case at bar, a specified sum of money is paid for each integral part of property ex pected to be received, a failure to transfer a portion thereof at such ratable price consti tutes the measure of damages sustained. Thus, as was said by the court in Rockefel. ler v. Merritt, 76 Fed. 909, 22 C. C. A. 608, 35 L. R. A. 633, 638: It follows that the judgment should be affirmed, and it is so ordered. MCBRIDE, C. J., and McCAMANT and BEAN, JJ., concur. (No. 8626.) "If a vendor represents to a purchaser that a DENVER & R. G. R. CO. v. THOMPSON. tract of land contains 10 acres more than it actually measures, and thereby induces him to buy and pay for it at the rate of $30 per acre, he is estopped from showing that the land was of less value, because the purchaser has actually paid and lost $30 per acre upon the 10 acres that did not exist." [3] The evidence fails to show the amount of the consideration which was paid by Mrs. Purdy for the land described in the deed executed to her by her husband. Mr. Purdy, explaining how he came to give such deed, testified: "Well, she had let me have money at different times, and I just made her a deed out to the place for the money I had borrowed from her. Q. Well, was there any understanding between you? A. Yes, there was an understanding. Q. Well, what was it? A. Well, I just agreedI was willing to make her a deed to the place on account of getting this money from her. That's all, I guess. It was her own. I say she had money, and I wanted to use it, and I just borrowed the money of her and made her out a deed to the place. Q. What did you do with the money? You say you borrowed money from her, did you spend it on the place? A. Yes, sir; for cows used to improve the place." [4] This is the entire testimony that was given on this branch of the case. It is reasonable to infer therefrom that, though the deed which was executed by the plaintiff to his wife was absolute in form, it was intended by them, when the sealed instrument was made, that it should be security for the payment of the money which he borrowed from her; the amount of which, the time of its payment, and the rate of interest not being disclosed. If the deed was executed under such circumstances, the legal title to the land did not pass by a delivery of the writing, which document was nothing more than a mortgage. Adair v. Adair, 22 Or. 115, 29 Pac. 193; Marx v. La Rocque, 27 Or. 45, 39 Pac. 401; Trust Co. v. Loewenberg, 38 Or. 159, 62 Pac. 647; Kinney v. Smith, 58 Or. 158, 113 Pac. $54. Though the evidence fails to show what consideration was given by Mrs. Purdy for the land, it will be assumed, without deciding the question, that her deed was intended (Supreme Court of Colorado. Dec. 3, 1917.) 1. MASTER AND SERVANT ~264(10) - INJURIES TO SERVANT PLEADING PROOF AND VARIANCE. The injured servant to recover for personal injuries must do so on the allegations of his complaint. 2. MASTER AND SERVANT 265(8)—INJURIES TO SERVANT-NEGLIGENCE-RES IPSA LOQUITUR DOCTRINE. Where plaintiff was injured when an air coupling on a hoist parted and one end struck him, no presumption of negligence in pushing the hoist too far arose from the mere happening of the accident. 3. EVIDENCE 584(1) DENCE-POSSIBILITIES. QUANTUM OF EVI A resort to mere conjecture or possibilities will not take the place of direct or circumstantial evidence, and no number of mere possibilities will establish a probability. 4. MASTER AND SERVANT 265(8)-INJURIES TO SERVANT-RES IPSA LOQUITUR DOCTRINE. Where a servant was injured when struck by one end of an air coupling on a hoist which parted, and there was no evidence to show why it parted, and from the length of hose and situation of the hoist, plaintiff's theory that the hose was stretched horizontally presented an impossibility, he could not recover. Hill and Teller. JJ., dissenting. En Banc. Error to District Court, Chaffee County; Charles A. Wilkin, Judge. Action by Hillyard J. Thompson against the Denver & Rio Grande Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. This action was instituted in the court below by Thompson, whom we will designate as plaintiff, against the Denver & Rio Grande Railroad Company, to obtain a judgment for damages occasioned by reason of an injury sustained by plaintiff, which he alleges was caused by the negligence of the railroad company. Judgment was entered upon a verdict returned in his favor, to review which defendant brings the case here on error. The grounds of negligence alleged in the complaint are: That the employés of the company carelessly and negligently manipu lated a hoist they were using, and carelessly | over the lathe and was about to be lowered, and negligently failed to secure or fasten it the hose coupling became disconnected and so as to prevent it from moving, after the air hose was attached, and, the hoist being free to move and easily moved, defendant's employés negligently and carelessly permitted it to move or to pull or draw upon the hose with sufficient force to disconnect the coupling. Plaintiff's attorney in his brief states his position regarding the cause of the accident to be: "That the air house separated, or was uncoupled, because the hoist was pushed or pulled too far to the south, causing the hose to be stretched and pulled into a horizontal position, which caused the coupling to separate." the piece attached to the hose leading from the stationary air line, swung towards plaintiff, the air pressure causing the end to fly around and strike him, knocking him from the planer to the floor, the fall resulting in the injury complained of. An examination of the coupling immediately after the accident disclosed no defect in any of its parts. E. N. Clark, R. G. Lucas, and T. M. Stuart, Jr., all of Denver, for plaintiff in error. G. K. Hartenstein, of Buena Vista, for defendant in error. Plaintiff was employed by defendant as a GARRIGUES, J. (after stating the facts machinist in its shops at Salida, Colo., and as above). [1] Plaintiff must recover upon operated a planer, near which was a movable the allegations of his complaint. Elkton Co. hoist used to lift and move machinery. This v. Sullivan, 41 Colo. 241-250, 92 Pac. 679; hoist was mounted on rollers and suspended Soden v. Murphy, 42 Colo. 352-356, 94 Pac. from a beam or rail, on which it was moved 353; Chaffee v. Widman, 48 Colo. 34-41, 108 by being pushed or pulled along. A rubber Pac. 995, 139 Am. St. Rep. 220. air hose 8 feet 5 inches long hung down from the hoist, and there was a stationary air pipe along the ceiling from which was suspended another piece of rubber hose 13 feet 10 inches long. At the loose ends of these pieces of hose and used to attach them together was a standard Westinghouse air line coupling— such as is used in connecting cars for air brake service-1 foot 9 inches long, making the total length of the hose when coupled 24 feet. The relative position of the machinery is illustrated by the accompanying sketch: [2] No presumption of the negligence charged arose from the mere happening of the accident. Greeley v. Foster, 32 Colo. 292300, 75 Pac. 351; City of Denver v. Spencer, 34 Colo. 270-276, 82 Pac. 590, 2 L. R. A. (N. S.) 147, 114 Am. St. Rep. 158, 7 Ann. Cas. 1042; D. & R. G. Co. v. McComas, 7 Colo. App. 121–123, 42 Pac. 676; Bishop v. Brown, 14 Colo. App. 535-548, 61 Pac. 50. [3] A resort to mere conjecture or possibilities will not take the place of direct or circumstantial evidence. No number of mere The distance between the planer and the lathe was 9 feet and 10 inches. The hoist is operated by means of compressed air conveyed from the stationary iron pipe, through the coupled rubber hose into the piston chamber of the hoist. When it is desired to operate the hoist, these two pieces of hose are connected by the Westinghouse air coupling. On the day of the accident, while plaintiff was seated on and operating the planer, witness Elliott, a coemployé, used the hoist to pick up a pair of tank wheels and take them to the lathe. There was evidence that as the possibilities will establish a probability. Elkton Co. v. Sullivan, 41 Colo. 242, 92 Pac. 679; Patton v. Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Samulski v. Menasha Co., 147 Wis. 285, 133 N. W. 142. [4] It appears from the evidence that this particular hoist had been in daily operation in the shop where plaintiff was working for at least 6 years. There is no evidence as to the cause of the uncoupling of the hose. None of the witnesses were able to assign any cause. Plaintiff's theory is that the hoist was pushed or pulled so far as to cause the |