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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Jan. 10, 1912)
D1I1T CAPITAL J0rB5AL. SALEM. PRECOX. WEDNESDAY, JAM'ABY 10, 1912. I I OREGON SUPREME COURT DECISIONS FiU Tit Pibllibed by Coirteiy t i. A. Tomer, Esporter of tie Supreme Coirt nurrhaser. The sale ana convey- up ioe comrsci uiw -" ance are admitted In the reply. Upon the trial the court held that after the sale, there being no spec.. pressed himself perfectly satisfied and ready to make the agreement. But If this were true why did he not then, when he was near a lawyer and no tary, make the conveyance? Why de lay until they had moved out to his Hiimtrom, H Nweenej, el a I, Multnomah County. Decided January 2, 1912. Pete Hagestrom, Martin Sv.anton Ole Johnson, Oscar Mi'lbo, RuHinttt Mldbo, Isaac Mldbo, Pete Christian sen, and Robert Thompson, partners, doing business under the firm name and style of Pete Hagestrom & Com pany, respondents, v. J. W. Sweeney 8. M. Blumauer and Isaac Blumauer, partners doing business as railroad builders and contractors, under the Arm name and style of the J. W. Sweeney Construction Company, ap pellants. Appeal from Multnomah county. The Hon. C. I'. Gantenbeln, judge. Argued and submitted Doc. 13, l!lll. Alexander Bernstein (Bern stein t Cohen, on brief) for appel lants. M. J. MacMahon, for respon dents. Eakln, C. J. Modified. This Is an action to recover com pensation for work done iion a con tract and damages Buffered by a breach of the contract. Plaintiffs, on July 28, 1309. con tracted with defendants to build a railroad grade between certain sta tions In Washington county, Oregon, and to complete the work by June 1, 1910, for which defendants agreed io pay plaintiffs at certain rates, ac cording to the estimates of the egl neer, for removing rock and earth and for doing other work. According to the estimates furnished by the en gineer In charge, the work done, as alleged by plaintiffs, amounted to $6,173.40, against which they admit that defendants are entitled to credit for board $1154.50; hospital fees, $50; supplies, $389.05; cash upon the con tract $1738.45; tools, etc., $1531.64, less a credit of $34.45. The total, as suited, Is $4061.48, leaving a balance due of $1511.94, no part of which has been pnld, all hough demanded. For further cause of action, plain tiffs allego that It is provided In tho contract that "the order to stop and abnndon said work shall bo mndn 'n writing, signed by the contractor, and shall be delivered to the station men 30 days prior to the dale when such order shall lake ef fect . When the work shall cense at the expiration of Bald per iod of j0 days from the giving cf such notice the work shall he deemed to have been finally completed, nnd payment shall he made therefor in the tnnnner hereinbefore provided !n paragraph 7, and this contract shnll he regarded as terminated and nt an end." That on the 28tli day of Feb ruary, defendants orally notified piatntirfs to ceaHe work; took pos session of plaintiffs' tools nnd Imple ments; nnd closed the hoarding house, so that plaintiff's were com pelled to, and did, cease work, and left the camp; that If they had ...n pormltted to proceed with the work until June 1hI, they could have ac complished much work; that by vir tue of the cancellation of the con tract, plaintiffs were deprived of pres ent nnd future work, to their grout damage In the sum of $2,000. The answer denies every allegation of the complaint and alllrmnllvely al leges the contract briefly as set out In the complaint; that plaintiffs per formed work thereunder but that on Feb. 28, lull), without cause. tiiey abandoned the work, and that defen dants have paid nnd advanced to plaintiffs on the contract the sum of ',11)1.18. lhey also set ler-clalm for damages. The reply denies the new matter of the answer, except In certain pnril--ulara. I'pon the trial befoie a Jurv a verdict was rendered r,r plaintiffs In the sum or $iiS4.o:, nnd the sum 'f $1000 damages. f,,(, , for a new trial, nnd as a condition of Its denial, ;,im or the damages u cliulcl the verdict was, ,v pi,,!,,. remitted, and Judgment icnucieu accordingly. Hiith appeal. Knkln. ('. J tvfendants assign .is error certain rulings ,f ih,. ,.,m the admission of mlilcuce, which Til ings we deem were not prejudicial and lhey u'd not be further cousid-T'I- They also assign as ,,,.,.,. instruction gh.,1 lv tne court to ,iu. Jury us follow; "If y,. ,i;,d tmltiu I'lalllliff were Impvoperlv discharge,! 'Hid not permitted ,,, ,ntin,ie the work under the , f the co ,- iract, then ,ay llS!;i,S! ,.U,. ages a.- would reasonable compel, M(!e iheui for f,ie breach not ,. which was duly except ed to. upon the Bround ihu th,.,o was not any e,l,e,i, e before no Jurv lm wht.h to ptvdlcat, ecrdk : 'or """' more m, lVlwt (lf 'Hie damages nilslng out ,.; br. aeh, the ullepu'.on of ,!;. 'K mill tney were deprived of , ent and future work to their great damages In the sun, ,lf j;,H,0 tiffs testified that they have been at work during most f the time since being discharged from the Job; that they have been continuously nt work win. I. Is an admission that no s,i"l.' damages resulted. Plaintiffs attempt l0 prove proOls that would have ruit lo them lr llowtd to complete the contract, but no proof was offered of facta which profits could be cstlmat-d, ; such as tlie amount of rock or earth jet to be removed, or the probable j expense of Its removal. On the con- I trary. opinion evidence was offered j without proof of any data upon which to base it, and, therefore, was not competent evidence of any danger L'ion breach of a contract, where loss of profit Is the measure of damages, relied upon, such probable profits must be established by proof of da'a from which the extent of the profit, If any, may be computed; 4 Kncy. Ev. B, 14, 21; 8 A. & K. E. U 621-2, and note; Douglass v. Railroad Com pany, 51 W. Va. 52.1; Kamsek, et al. v. Holmes Elec. P'Qt. Co., 85 Wis. 174; Lent?, et al v. Choteau, 42 Pa. St 4.1.".; Durltee v. Mott, 8 Barb. 423. Ha gives thlB reason for so doing: "I have got a place down below there on the river just the same as Mr . . . ... . i. fie performance possible as to the Wlebke, and I got urea running Oak land nlaintinV demand became a wards and forwards and considered mere money demand, not cognizable 1 that the best proposition was to go . farm and thus necessitate a useitss in a court of equity, and upon that1 down on the other place, and I didn't trip to Eugene? He may have been ground refused to find upon the prin-' have the papers for the other, and I satisfied with the treatment he had cipal fact-the alleged contract anl didn't want to run any risk at all. so : received, up to that time, but it re dismissed the suit. Plaintiffs appeal. I thought I would take the other prop-1 mained for him yet to be satisfied that Mollride, '. On behalf of defen- j osition. which 1 knew was a safe one." it would continue to the time of his dants, it i:; claimed that a sun ior j in relation to me na sins i-uuuu;i, ur,u. specific performance is purely In i William Forrester testifies that Black j the tragedy of King Lear. personam, and that the court ac piired no Jurisdiction by service if summons by publication. We cannot assent to this view of the law. ,Be lng to a great extent a federal ques tion, the decisions of the federal courts furnish the safest guide In cases of this character. In Iloswell's Lessee v. Otis, 9 How. 336, 348, Mr. Justice McLean says: "It is Immater ial whether the proceeding against the property may be by attachment or bill in chancery. It must be, sub stantially, a proceeding in rem. A bill for the specific execution of a contract to convey real estate Is not The onlv evidence offered to prove loss of profits is disclosed by th- strictly a proceeding in rem. In ordin nuestions to witnesses as to their cases; but where such a proced- opinlon as to what the profits would have been and the offer was properly denied. This conclusion renders it unnecessary to consider further plaintiffs' appeal, which related only to the damages remitted. The ver dict was In favor of plaintiffs in the ore is authorized by statute, or pub lication, without personal service of process, it is, substantially, of that character." To the same effect are Arndt v. Griggs, 134 U. S. 316; Adams v. Heck scher, 83 Fed. 281; Single v. Scott, 55 sum of $1184.05 and the further sum Fed. 553. For decisions of the state of $1000 damages, which as stat"d courts to the same effect see Seculo were reduced to $500. As the dam- vlch v. Morton, 101 Cal. 673; Robinson ages are found in a separate item of : v. Kind, 23 Nev. 33"; Corson v. Shoe the verdict, the nmount erroneously maker, 55 Minn. 386; Burrall v. Karnes found Is fixed and we may affirm the 1 5 Wis. 260. In the latter case the Judgment on condition that plain-' court says: "A suit for speijfic per tlffs remit from the Judgment the formance, like that of foreclosure, is amount of damages, namely: $."00, following Gardner v. Kinney, Or. 117 Pac. 271. Therefore, It is ordered that If the plnlntlffs shall, within 30 days, re mit the sum of $500 from tho judg ment of the lower court, the remain der of the Judgment will be affirmed; otherwise, It will be reversed and re manded for a new trial; defendants to recover costs In this court. of a two-fold character, partly in per sonam and party in rem. The court may enforce the contract, either by operating upon the person to compel a conveyance, or may pass the title of the land by decree." It must be conceded that there must be statutory authority for such a pro ceeding and such is the case in this state. Ily Sec. 399 L. O. I., service of summons by publication is author ized "when the subject of the suit Is real or personal property in this state. up a conn- Hanklns anil Hawkins v. John Due, till. Lane ( oiiiilj. and the defendant has or claims a I lien or Interest, actual or contingent, Decided January 2, 1912. thp.pln, ,,, ,.,., (name(1 co. l elford S. Hawkins and Margaret B,BfB wholly or partly in excluding the C. Huwk.ns, appellants, v. John Do". defendant from anv lien or interest true name unknown, and who Ih 'therein." Sec. 411 provides that "a nephew and heir at law of A. .1. . , , i. mm, ucceaseu, nil linmiown heirs of conveyance A. J. Illnck. deceased, and L. ward, administrator of the estate or A. .1, lllack, deceased, respondents. Appeal from l.aue county. The Hon. '' 'I'- Harris. Judge. Argued and sub mitted Bit. 19, 1911. C. A. Wlnter meier, for appellants. I.. Illlyeu, C. F. Sklpworth nnd John M. Pipes, for respondents. McBride, J. Affirmed. transfer, release, aequit- said to him "He had a home at last that he was going to give Mr. Hawkins the papers just as soon as he got settled down. As soon as they got things straightened aroiiuJ he would make out the papers and they should have the place as long an he lived that is. they could have the place after he was dead, as long as they took care of him while he was living." Later Black told Wlebke that he had the same agreement with Haw kins that he had had previously with him. Williams, who is a son of Mrs. Haw kins, testified that Black applied to him to take care of him, and said that if he would do so he would "make out the papers" that day, but would keep a life lease; that he declined but recommended, to Black, Mr. and Mrs. Hawkins; and that Black afterwards told him that he was perfectly satis fied with them. The proposal, as Hawkins states it, is as follows: Black said, "If you will take care of me properly during my life and see that I am properly hurled. I shall turn that property over to you. It shall be yours. But, before we do that I would like to know that 1 would be treated right or not, and I would like to stop with you and see if we get along all right or not, for a couple of weeks. If we get along all right, we will make the bargain and agreement. If we don't I will pay you what you are out, and that will end it." That he came the next Sunday and stayed all night, and the next day said it was nil right and that he was will ing and ready to make a bargain with as to take care of him. This was on September 30, 19u7. After staying with plaintiffs for two weeks, they all moved to Black's place and he said io piamtiris, ".Now. this is yours. All I want is just to be taken care of." Hawkins further testified: "He said he would make out writings that would be satisfactory to both parties, turning the property over to me; that the tance, or other like act within a period j he would want a lif interest in it; t Herein specified shall, if such party does not comply therewith, be deemed and taken to be equivalent thereto." These sections bring this ease with in the reasoning of the decisions here tofore cited. A contract to purchase land would he a hazardous pmceed- I HE. II Win lilll'PhnOKr ii-o,-.-. , i I... Tlllll Io ,. o.,l. - , , . . ' 'CI, IMC! !U " "'' " "i,iiei iioieiiuaius , search the was parties to specifically perform an allege,! oral contract to convey land. The complaint alleges, In sub stance, that, on September 25. 1907, plaintiffs entered Into nn oral con duct with A. J. Illnck, defendants' Intestate, whereby they agreed to fur nish him board and clothing, and al low him to ihe with them as long as he should live; t care lor him In his last sickness and to stay by him ml lll his death; that he was 75 years of age, hud no relation, and Hint it was necessary for him to have some one to cure for him ; that ul.l ".union ot sui'ii services. Illuck agreed to execute a deed l pbu,,. IIITs which was to provide Unit they take and hold exclusive possession ot the premises, described In the complaint, and to have the proceeds therefrom as long as lllack should live, and that at his death the wh.,1,. i.. , . u,e,si SIIOU 1,1 miss lllack reserving a life premises for hs that tlie premises veyed subject ( the 'hat plaintiffs fully part -of the died on the 1907: that Io plaintiffs, interest in the iu protection; Were Io be con- debts of lllack; performed their nn-eeiuonl ; that Illnck ''lb day of November, he failed In , .,, . .i i , ' '" '' on me reason thai stilckcn with paralysis and ter. up to the the f his ,1 " 'is such Mint h eie iii ,:, so; t Ii.it . K. appointed 'ulihinUiratot of and in Kch court lead. Io sell the of debts. uarv. i ;'. the coiitin an oru, diivctin I'm. pony tor tn bun Pay n cut lo about ad been iu n lie bad a t'aliloniM, wine.,. in. ho is th.M'..- o name , U i.i billll if . tc: spc Ilie be- s.ieci'l bo d - v-'i'h amounted '"'": that Plaintiffs formed by , n. phew i in,: name u unknown iin,i 1,1 esigiuit,.,! In (i, '.. nephew nnd I Black " tn i laiunp - p. ;, quiring bat tin , i ally i,Ti,,r. dared ihe owi:, :s and that, if i;,, . boon sold by th, ciiai noes 'e tue owner money reehd fV,, tin- d.'b's nd nit ion shall h.ne l, , cr, ice by p .nlieation -. . w no nu n. t Hearts .i,,,.i . pcisouat sen ice 'he adnuuisira.ur. who answer. "mg the alleged agreement. atllt I'-Rlng thai tho premts(.s had been M at the admlnist nit. ii 'a ..1.. f..., j . uu uy a suftlcle There w its a-ainst John "'oiialil b, ' hat tbei f the pren I.. .... ropertx sh:, ',1 h,Uc administrator be- in -i be lie. biv.-.t ,.. of the rr-idti, ot ;i. such sale ar,..,. cxiienses of adaiini- u paid civilized world and sue each heir in the place of his resi dence. In case or tlie vendor's death, before performance, and we cannot concede that Ihe law retntires such an absurd procedure. Conceding, without deciding, that the administrator's sale was an equit able conversion of the property, we are not satisfied that plaintiffs have made a case sufficient to justify n decree under the pleadings. Where the contract rests wholly in parol and the alleged promisor is dead, courts should demand clear ami as a ''"'I" I satisfactory proof f the tern.s ,,f ,! agreement, and its strict performance by the premises. Such cases furnish abundant opportunity for the perne- tiaiimi of those frauds which it was til" obloct of the 1.. . , . iciiuinng the contract it need In writing. I The evidence tends to show that de ceased needed a home where he could j have some one to care for him in his loociining years and that he bad J plied lo several persons to look ; k nun in return ior lines lie would give them the prop erly at his death. One witness iWieb !e testifies in substance: "He see! j'1"1 '"id a small tract of lund :,.id I'1"'"'' li.'e any house on it. and be ; w:i:1,n '' 1'ii'iw if ' would not t;,e f"1' l-aoo and let hi,,, come and stai 'with as and live with us. it ho would ,Kne us ,1,,. plue,. :ll ,ljs )m vil-,1 ,f we iimg M ,.1,,, . , , So h" ''"'H'sheil the lumber ami built the house on his place, eanie ;i,,.l staved with m"'' a month I asked " !'' 'Ii'Mii. hi vie could ' -i.i. ami l:,. said s.Hlied. and be said a e had t hie we would and make out the papers ! vas to i,;,Vl, look i':,.0 of him i no in.i that he would want to be sure that he wouldn't be beat out of a living while he did live. He simply wanted a lil'e interest in the property and when he was dead it was mine. 'It is yours.' he my wife." great dramatist portrays the foolish ness of an old man who In his life time strips himself of his possessions and depends on the gratitude of his children for support in his declining years. The reports are full of such tragedies, wherein undutlful children, finding themselves possessed of a pa rent's means of support, forget the obligation of filial love and gratitude and either drive the aged donor from them or make his life miserable with them. To the discredit of human na hire such Instances are so frequent as the reverse, and if this be so with children of the donor, how much more likely is it to be the case where the transaction is with strangers. Black was wise enough to wish to protect himself and we do not think the evidence shows that he ever prom ised or Intended to make a deed, but that he probably did Intend, if at the close of his life the plaintiffs had not relaxed their efforts to make him comfortable, to remember them by a will and perhaps to leave them all his property; but this Is not the case which the plaintiffs have presented by their pleadings. Where specific performance of an oral contract to convey land Is sought to be enforced, on the ground of per formance by the vendee, the evidence of the terms of the contract should be clear and satisfactory; 36 Cyc. 689. At common law, and In many of the states, by statute plaintiffs would not have been permitted, after the death of the alleged proniiser, to testify as to the terms of the contract, and, while the rule has been relaxed in this state, there are many reasons why the testimony of interested par ties, under such circumstances, should be closely scrutinized. It is so easy for sell-interest to sway even the hon est mind, so that it will give a dif ferent meaning to the language used, or construe rather than repeat actual conversations, that disinterested tes timony is highly desirable, nay, al most indispensable, in cases of this kind. Our statute requires the judge, presiding nt jury trials, to instruct them that evidence of the oral admis sion of a party should be viewed with caution (Sec. 86S, L. 0. L.) and if this is the rule as to admissions of parties to 15 years In the penitentiary, with a fine of $1,000, for manslaughter, from which Judgment he. appeals, The Jury returned a verdict In the following form: "We, the Jury, duly empaneled to try the above entitled cause find the defendant George Set- sor, guilty of Involuntary man slaughter. (Signed) R. R. Palmer, Foreman Counsel for defendant moved the court to set aside the verdict and discharge defendant, for the reason that by the return of the verdict and the discharge of the Jury thereafter, the defendant had been acquitted of he crime of murder In the first de gree, murder in the second degree, and manslaughtr; and that the jury was not authorized to return a ver dict of guilty of Involuntary man slaughter, or any other verdict ex cept not guilty. The defendant assigns as error the over-ruling of the motion and the Judgment of sentence. He does not ask for a new trial, and as we under stand the brief and oral argument of counsel for defendant, the only ques tlon raised for the determination of this court is, whether or not the judgment appealed from, is void, and whether the defendant should be dis charged, for the reason that the ver dict of the Jury was not In legal form under the statute of this state and did not authorize the trial court to pass judgment. Our statute making provisions for trials in criminal actions as to the verdict Is, In effect, as follows: "The Jury may ether find a general ver dict, or where they are In doubt as to the legal effect of the facts prov en, they may find a special verdict." Sea 1546, L. O. L. "A general verdict upon a plea of not guilty, Is either 'gujjty' or 'not guilty'; which imports a conviction or acquittal of the crime charged In the indictment;" Sec. 1517, L. 0. L. "A special verdict Is one by which the Jury finds the facts only, leav ing the Judgment to the court. It must present the conclusions of fact, as established by the evidence;" Sec. 1548. L. O. L. I'he fori prevent. to be re- ii p- living and able to explain their lan- says. meaning me and guage and meaning, with how much greater force should It apply when the evidence is directed to the alleged declarations of one whose lips are sealed in death, and to establish a contract wihch the law requires to be in writing. The evidence of plaintiffs' posses sion is not clear or satisfactory. It is true that Hawkins says he went into possession and his wife says that they took "perfect possession of the premises," but the evidence indicates that their possession was that of ten ants, until a final agreement shomn e consummated, rather than that of persons holding as purchasers. Thev admit that lllack said that he wanted to retain a life es te for his own protection, but this would be a poor protection if plaintiffs had the posses sion and enjoyment. The reasonable inference which we draw -,-om the statements of these interested wit- en the property in his own hands so thai ne would be in a plaintiffs from Mrs. Hawkins' testimony is substan tially the same as that of her husband. She testifies that when they moved out to Blink's place he said: "This is yours. Kvery thing here is yours. You don't need to consult me about nothing. All I want is care as long as I live nnd I feel that I will get it. We took perfect possession of tlie place." In answer to a question, ou cross examination. Mr. Hawkins testified: "He said when we got out there and were settled, we would come back to town and make out the writings." Q "He wanted to protect himself?" "Yes. he said he would make out the deed,' Hawkins npnn his deathbed she such cgoing is practically Hip substance of the testimony as to the I nB. cement, except that Mrs testifies that I". tn nun tt I,,, was satisfied win, nesses is tlmi in.,i, i , i,,u . " ' iiucmeu io koi " '".oiiieiu, an, i ne answered "Yes" It will be noticed that the last answer "'"ve quoted is the only instance in "liieh the w,d "deed" is used and winch the word "deed" Is used and witness as to tlie effect of the con versation than iti..,.i. """' exact language. In ser just preceding it. In 'tie same lie was his was :n; Ward was the I'm,,',. thus: in nttemnt to nM, exact language, just preceding it. conversation, be gives it lie said .i., . , " "wuiu come town and make out the writ and it is a significant fad that ' all his 'onvetsations. a ,..,i ., I.. ,i "' i no leslliuoiiy V'oi'd eel " "The special verdict must be re duced to writing by the Jury, or in their presence, under the direction of the court, and agreed to by them, be fore they are discharged. It need not be in any particular form, but Is sufficient If it present intelligibly the facts found by the Jury." Sec. 1549, L. O. L. "In all cases, the defendant may he found guilty of any crime, the com mission of which Is necessarily in cluded in that with which he is charged in the indictment, or of an attempt to commit such crime." Sec. 15.-.2. L. O. L. "When there is a verdict found, in which it appears to the court that the jury have mistaken the law, the court may explain . the reason for that opinion, and direct the jury to reconsider their verdict: but If after such reconsideration they find the same verdict, it must be received." Sec. 1554. L. 0. L. The section of our statute which is especially applicable in determining whether or not a verdict is In legal form and should be received, is ns follows: "If the jury find a verdict which Is neither a general nor a special verdict, as defined in Sees. l.)47 nnd 1548, the court may, with proper instructions as to the law, di rect them to reconsider it; and the verdict cannot be received until it i, given in some (form) from which it can be clearly understood what is the Intent of the jury, whether to render a general verdict or to find the facts specially, and to leave the Judgment vu iiiB conn. sec. luiui, h. o. L We think it is clear from the ver dict rendered in this case that the Jury intended to, and did render a general verdict; therefore the only contention Is In regard to the descrlp- tlnn vf ,1... I ... . 1 no- ,-iiiue ior winch defen dant was sentenced, is manslaughter If the adjective "Involuntary", con tained in-the verdict, can be given a signification indleatne nn ov,.,, justification, or any degree of crime uian manslaughter, or any crime not included In the Indictment then it would seem that the position taken by the defendant's counsel is correct. On the other hand If the word "involuntary" does not have any such signification, then the con clusion must be to the contrary sections 18!)7 tn 1in ini..i.' . p. , . minim vt;, i,, u. I. define the crime of manslaught . hoc 1S97. L. O. L. as follows: If any person shall, without malice ' 'i,lr ui imp leu the decedent; and a verdict that h did not design or Intend the death of the decedent, but he unlawfully killed him while engaged In the commission of some felony, Is proper, and con stltutes a verdict of murder In the third degree, under Wis. Rev. Stat Chap. 164, Sees. 2, citing; State v! Hammond. And a conviction for In voluntary manslaughter in the com mission of an unlawful act may be had under an Indictment charging voluntary manslaughter; citing is ham v. State, 38 Ala. 213. Where a verdict was of man slaughter In the second degree, no such degree of manslaughter being specified by the statute, a conviction for manslaughter was sustained, tlin words relating to the degree being rejected as surplusaga 1 McCIaln on Criminal Law, Sec. 392. The verdict should be regarded from the standpoint of the Jury's in tention when this can be ascertained, If conistent with legal principles! such effect should be given to their findings as will most nearly conform to their Intent, and should be con strued and applied reasonably in the light of all the proceedings. ( ed.) Am. ft Eng. Enc. of Law, 29, p. I02;i What then Is the meaning of this verdict of the Jury, finding; the de fendant guilty of Involuntary man slaughter? Mr. Wharton defines the crime as follows: "Involuntary man slaughter Is where one doing an un lawful act, not felonious or tending to great bodily harm, or doing- a law ful act without proper caution or re quisite skill, undesignedly kills an other. According to the old writers It Is where death results uninten tionally, so far as the defendant Is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently per formed." Wharton on Homicide, Sec. 6. In Words and Phrases. Vol. 4. n 3762, we find "'Involuntary' as im plied to mansluaghter. means that the killing was committed by acci dent, or without Intention to take life;' citing United States v. Outer bridge (U. S.) 27 Fed. Cas. 390, 3D1. We find here several definitions of Involuntary manslaughter taken from various opinions and different stat utes. Many, If not all of which are Identical with the crime mentioned In Sees. 1898 nnd 1902, L. O. L. The trial court instructed the Jury as to manslaughter, according fo the provisions of Sees. 1897 and 1902, I, O. L.! and In addition thereto,' In part ns follows: "A homicide man slaughter, even though committor! in doing a n act lawful In Itself, If the defendant was guilty of gross or culpable negligence, and such necll- gence was the cause of the death." manlier; that lie expected lb use and keep the products of the farm paying for them, except in was m ais lino ou: ot th 1 ' "'' 'o,i and tinalh consent of i to one ;;i,,i in caring i, lilies !; sii he ,i ,is w i'.Ji the ; and when he us something !iim on,. ,ia.. got aiong t "' time O.o lo A' his do , th provi.l'ng las; illness " pat.crs" w., : 'V l'U,':.S. ;, " liis rifchis papers otlv lh.it !"i ,t ne never used the I lie witnesses :iii .,.... ;hal "'' "make out the writings"; '.i.ine our agreement ...1 - iii n ........ . i. . i r possession of his I cv ens I'.' hue. thi ick sold ,, ;s- who si ilooe.ised su'.s' i:hv. :..'::4 'o deal ,i ;' n lrii'8 as be h;il I was to i'et th,, p l like c.;:e of ;,.. I5 'I', '.he t ,i said, it w tll'I'.S. aud I in; Witness vo.ir a,.,; tln-eo montlw nlthoiith fte,,e,.,li ' c.'iested. iioulp,-, . nt dee.1 ... ,k..I.. ..... -"' 't mane . . niHiiigs, mid the without tlie an- "'c way or services to himooir- ,. narrating j he Intended to part with his right of possession seems almost incredible. To conclude, we think plaintiffs have not made a showing sufficient to jus tify us in decreeing a specific per formance of tin. a!U.g0(1 cont,.act Specific performance can never be de "''I'ided as an absolute right, ,,llt rp8ta in fie sound discretion nf tba make out the I to be granted ,icio.i ..... We think th L.,o v" " u,e ,mer- n.Hcate ,, Z " seen, to require: od ! k . . v " ""nt.-" ijc .n ami cases there cited. i..: rz::.,:1 ':l :'.' ,,io "' ! , Justice to leave the his property .lm-i,. i n a ntiifc , . . iiiik His i,... ' hi " . meir remedy at "''" 'o , ,, hi, : . :" .e -!r . ls adequate to h i. , ,s . " "" I , u ' ", m Ior an' ""vices thev as to secure pn.oer may have ien,Wo,i 1 hen he felt deal.,: fay have suff e he he thu, , ... i .r. " 1,1 the Premises. s. ... make " .. ' " n't court is 'in Hug. whip t;eati a I 'pro:-., coned t ''; ins tnonerf is shown b , Hith whom ; agreement, tin,! Mule ,,f iii up n d on ''.vised ' .,nd k and v -as to i., ,,,, SOI Sll'li Ol :, . "'"I'd s. 1,1 , ,,' "11, out :i",l ii. o ia.,i;s Tl,... Ma.ieil lb,,,,! a aiUI illack "ICgllll v. n . , 1 01,11 - ...e,i i leet'iutier 12, ion r. linker Vv i, ',' ,. 1 VI. -S to at his de ' le "f Oregon, respondent. reiser ciri nit his 1 out on; i;ne?s finally re- bequeath- ' Plaintiffs th. e testimony of Wiebke. " made an identical I'.V tlie tQfill,n.... "'Hi succeeded Wlebke " h.'0', W"U,SS "'. "' was to ge, ,h" Place and 1 was t . " m h'tiuv , .-i 'iini ur.in -. be In . " to Me. oti,... , ' ' C '- -!! 1," s,i.i t,;A, " " . "-evens "" sick or .1,1. thine ...... ' vv, , ' . 1,1 le" ''or -r I t' U .11. I.I " "I. M I' ).. l.-t. i 1,1 town and hive hi. i Kami 7 , ' ''" lJ"',n was t,, be "'emetit The detendant was M(, . " 'optative. ,,mi he .,,,: the crime nl , a,3 . ndicted for -ee me verv ... t-v. . . . . """urr anri n,lun.. Position to expel liberation, upon a sudden hen. n I it, in case thev did I sit"'. caused bv a nrnvncatinn ... not care for him in a satisfactory !'"tly, """Went to make the passion .o.uuiarny Kill another such person shall be deemed guilty of manslaughter." And Sec. 1898, L O. L., in these words: "If any per son shall, in the rOHllflkc.rn n unlawful act, or a lawful act without -.'". cannon or circumspection, In- s!aaughteer."deemed gl"Uy f Section 190.-,. U 0. L. makes the only provision for the punishment of such crime, to-wlt: "Every person convicted of mansla,.h, ' , rs?n uiiprisnnment I'cuupiuiary not less lllnra l.n c. v,.u uueen years, and bv a fine not iv,.u.,,,i - . u u. M r.. Vrru,"S I.IHIU." vi.,. oinerwise technical Whatever pnn,.. ... l,lulrnl. ""verdnns t;,'i,",l!lal '-dnre,1 So " intlndlm! , I V"' construction. and L,a,.easonable avoided mu.. ...... ot b- in the than one nor .. 1 oiinirc immateriality Mat George from tl en.mty. , Mliith. iudee ;'l I'emileton ''PPeiiant. Appeal court fni- !!!... ''lie Hon oriibb. won... . . " onaiii Aigued and siibmittnri from lounu, or work injustice r-ne. of ,aw-, oft. or ti.o i their manifest tendency to - eu.) Am. & Kng . " ceriain that '"J iiif.v that gavs dence '".'thing ' The plaintiff. , aftsr his .. . ,,k " "u ecKs resi- """ lnt,1u 'n Eugene, he Dist. respondent Sre for the in the first .i lrillln v.o- rhomas. Ho nk L " e Jonn I'Pon trial by a jurv M and sentenced foSVtr the it,' C 29. p. 2 Tex this court can r.ng. V.nr nf t citing Burton v. Bondies eivp in, i,,.., Kd i a,,, ... r,J""?'"rul ul'on 102.",, 2H4. "The verdict 'arried into effect; can be U'eallv ntlinn,..! v"v.i n inrr. mt . Criminal p."T;:..... 1 Blstl" New heldhatVr 4M' 't basLbeeRn for theautyi3irrtnnt and n" murder, to negative .Phrosecution 'or the deAusra Mr. .rustic Moore In discussing a kindred question, the description of a crime in an Indictment. In the case of State v. Ayers, 49 Or. 67, makes this apt illustration in regard to do fining a crime: "If our statute, had delineated the commis sion of an offense and prescribed a punishment as follows: 'If any per son shall purposely, and of deliber ate and premeditated malice, kill another, such person, upon conviction thereof, shall be punished with death' the elements of the common In w could undoubtedly be examined to ascertain tlie name anciently given to the classification of such crime-" citing State v. Oe Wolfe, 67 Neb 3'1 (93 N w. 74G). Applying this 'rule and Illustration to the case at bar ! I wo"l(1 st""'i' proper for the Jury In their verdict, to designate a crime by a well known name as defined by the text-writer, courts and statutes; and if such crime is included In the in- fhon,nt, as, We" as ln the 8tatl"1'' then t Is clear what the Jury in- Zlu ; an,l,,a Judfent upon such erdlet would not be void. ,. Sl'rtBKs v. Commonwealth, (Kv.) Is, w- 0. It is shown thai the statute of that state subdivided the common law offense of manslaught er, by carvlne out nf it th ........ . '. WVCVVUIVIIJ. (rime of voluntary n..i..i..,.u.. for which a different penalty was c" man for Involuntary man slaughter, the latter being dealt with as a common-law offense. The Jury in rendering its verdict, swung the pendulum the other way from that !n Inn ?Hfi now "nder consideration, arn.emd defendant BuHty of man slaughter without designating wheth shJ,?H"nhary lnvo'ntary. as they should have done under the law in that state. i that case, as in this 2 f0r f fendant for t Ih ma Tb d'd "0t ask for "ew trial The court, while clearly of the op Won that there was prejudicial er ror in the Instructions, said' Technical, rules must exist and must be applied in cases which come 5e . Ynat WR (lecl(ie is that they wil not be applied to cases not witb- ogi a. to1,,,rViP:Vl and that 't htl logical to construe a verdict that a I?" ., eh K,",ty f "wo offense im-v JrL , CWrt ln8fcted the Jiii y erroneously, either as to con tituen. elements of the offeror", to he punishment to be Inflicted n vers;res,if,Hs court haS ed dent a n ha,s, warded the defen dant a new trial, but it h, nt i.. charged him from c,18toUy a3 acolllt. 1 nft lnHp-iriAnf tn tU.a tlnn;faf1,C,,:aH't'n thejurlsdi;: chanrpii in ., , upon the offense necesstv fl"P lniIlctn'". Nor is 't the teeoT .C" US to raider whether b n Ln ",ay be he,'led or curel struPM ",ent- We thlnk wructlon laws erroneous, and, if a nave'Shlna" been sou' " ouH d im ha, 8ranted' Bllt tae defen from arul,y P"luded himself am t l ,re'ief' ln the effort to .ob liin total inimnnitv, j . . thp n,n 1 .. J BUU over-ru eu tne motion to discharge. lounsel for defenrtonf u case of state v atu":...Zl "': If. 1J1 u "rei'imuus, OH UI. vt, nu, ,!hethe submitted a another c was assumed to bn atatuserri?ITff;,lse' whlch had no legal bar v'h ? 'n8,frora the st inclnld ,n Ctur y deribes a crime n the J , . P lndlctment as well as be i!T e' r statute, it will voSarvefirnh -'-tary is no in.. . ""Bluer, xne one is no lower rlntr,. , , .. mi,.. --o.vD ui cnuie man tne " ucDitiiHiHn imnpr the" ZlTltJL. UL.3 lne 8ame penal lor ZetZ.. .WhIle '.t unnecessary diet th J cecity in their uct the nartln.., j slaughter deVendan , """.u0 " o not think i..r .. "u0"""."1'. " renders th v-T- ""c" ?fcinca"?" ludcroon. -.eu uuceriain, or tne Judgment void. The word "lnvolun- ver- man- we (Contlnned on Pago 8.)