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carry the trade until closed out by the mu- , wit, $60--a result which could be ubtained tual consent of both parties, which plaintiff only by assuming that a bale of cotton conpromised and agreed to do; that thereafter tains 500 pounds. In addition to this, a stateand on February 1, 1901, defendant, on the ment of account was rendered to the defendadvice of the plaintiff and for the purpose of ant by the plaintiff in which the transaction' protecting such sale, instructed plaintiff to between the parties was set out in a similar purchase for him 100 bales of July cotton manner. at the market price, placing a stop loss there The telegrams offered and admitted in on of $1 per bale; that on February 18, 1904, evidence were competent as tending to show cotton had advanced to $0.1387, and defend that the transaction between plaintiff and ant directed plaintiff to close the deal of defendant contemplated an actual and bona January 15th, but plaintiff claimed to have fide sale and purchase of cotton and was closed such deal on February 1st at $0.1399, not a mere dealing in differences. The plainwhereby defendant lost the sum of $60 as tiff had a leased wire from Chicago to its profits, less $20 commission; that defendant office in Portland, by means of which the had demanded of the plaintiff the sum of $40, telegrams were sent direct to its agent and but it had refused and still refuses to pay the memoranda made of them. When the plainsame. For a further and separate defense, tiff received the order of January 15, 1904, and by way of counterclaim to the second from defendant, to sell 100 bales of July cotcause of action, it is alleged that defendant ton, it immediately wired to its agents, Logan had advanced to the plaintiff from time to & Bryan, who had offices in Chicago and time various sums of money, and there is New York: "Sell 100 July cotton," and when now a balance due defendant from plaintiff it received the order to buy on February 1st, over and above the sum of $55.45, due plain- it wired them: “Buy 100 July cotton market.'' tiff, of $89.30. A reply put in issue the new The telegrams offered were the original memmatter alleged in the answer and a trial was

ɔranda made at the time, and were compehad by the consent of both parties before tent evidence for the purpose stated. the court without the intervention of a jury. A contention is made that the pleadings and After hearing the evidence the court made evidence show that the transactions between findings of fact and conclusions of law in plaintiff and defendant were merely dealings favor of the plaintiff and entered judgment in futures or a gambling in differences, and accordingly. From this judgment the defend that no actual purchase or sale of a comant appeals, contending (1) that the com modity was contemplated, but the underplaint does not state facts sufficient to con standing was that a settlement was to be stitute a cause of action; (2) that the court made on the differences in the market quoerred in admitting in evidence certain tel tations from day to day until the deal was egrams which passed between the plaintiff closed, and therefore the transaction was iland its correspondent in Chicago, concern legal and void, and will not be enforced by ing the transactions referred to in the com the courts. No such facts are pleaded in the plaint; (3) that the court erred in overrul answer, nor was any request made for finding a motion for nonsuit; and (4) that the ings to that effect. The answer and refindings of fact and conclusions of law are quested findings assume and state that a not supported by the testimony, and are not sale of cotton was made by plaintiff on de. separately stated.

fendant's account "on the New York Cotton H. M. Cake, for appellant. John M. Gear- Exchange,” and the evidence is all to the in, for respondent.

effect that the transaction was actual and

bona fide. The witnesses for the plaintiff, BEAN, C. J. (after stating the facts).

and there was no contradiction of them, The contention that the complaint does not testify that the transactions between plaintiff state facts sufficient to constitute a cause

and defendant were actual and bona fide of action, because the number of pounds sales of cotton on the New York Cotton Exof cotton in a bale, or the aggregate number change; that plaintiff had a private wire of pounds bought or sold by the plaintiff on

from its office in Portland to its agents in defendant's account, or the price per bale,

Chicago, and, when an order was given it to is not stated, comes too late after verdict. sell or buy, it telegraphed the order to them The pleadings are framed, and the trial evi and they executed it on the exchange, and dently proceeded, on the assumption that a the price of the execution was wired back bale of cotton on the exchange and in the to the plaintiff. It therefore appears that market contains 500 pounds. The complaint the purchase and sale made by the plaintiff avers that 100 bales at so much per pound on defendant's account was an actual and amounted to a certain sum and the answer bona fide transaction on the New York Cotcontains substantially a similar averment. ton Exchange and presumably in accordance It is alleged in the answer that by plain- with its rules and regulations. Such transtiff's closing out the transaction on February actions have been uniformly held valid and 1, 1904, instead of on the 18th of that month, | legal on their face, and not mere wagering the defendant lost the difference between $0.- contracts or dealing in differences, and the 1399 and $0.1387 per pound on 100 bales, to burden of proving that they are invalid, as a

mere cover for differences, is on the party who makes the assertion, and defendant of fered no evidence on that subject. Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 25 Sup. 637, 49 L. Ed. 1031; Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed. 1183; Bangs v. Hornick (C. C.) 30 Fed. 97; Henning v. Boyle (C. C.) 112 Fed. 397. We are of the opinion that, under the facts of this case, the court could not declare the transaction to be illegal and void.

The contention that the findings of fact are insufficient because the weight of the bales of cotton alleged to have been bought and sold by plaintiff on defendant's account, either singly or in the aggregate, is not given, is disposed of by what has already been said about the sufficiency of the complaint. There is no difficulty, as we read the findings, in ascertaining from them what the findings of fact were or the conclusions of law which the court drew from such facts, and this is all the statute requires when it provides that the findings of fact and conclusions of law shall be separately stated. Weissman v. Russell, 10 Or. 73.

There was no dispute as to the second cause of action, and plaintiff was not required to prove it. The complaint sets out the facts constituting the cause of action and alleges a balance due it thereon of $55.45 ; the answer pleads, as a counterclaim thereto, that there is a balance of $89.30 in plaintiff's hands, of money advanced by defendant "over and above the sum of $55.45, due and owing to the plaintiff,” for which judgment is demanded, and when plaintiff commenced to offer evidence in support of its cause of action the defendant's counsel stated: “We do not dispute that."

There is no error in the record, and the judgment is affirmed.

to a suit stipulated that a third person should be appointed to take the testimony of witnesses specified. The order appointing the third person stated that he was a notary public. The third person took the testimony, and, in the certificate attached thereto, he wrote after his name “Special Referee and United States Commissioner.” Held that, though the third person was not a notary, the depositions were admissible in evidence, his selection having been made under the agreement.

[Ed._Note.-For cases in point, see vol. 16, Cent. Dig. Depositions, $$ 72-80.] 3. CANCELLATION OF INSTRUMENTS-FRAUDEVIDENCE-BURDEN OF PROOF.

In a suit to set aside a conveyance, alleged to have been secured in consequence of the grantor's mental weakness, and the grantee's undue influence and fraud, evidence examined, and held to create an inference that the grantee exerted an undue influence in securing the conveyance, casting on him the burden of showing that the grantor acted knowingly, and that his consent to the execution of the conveyance was not obtained by any advantage taken of his condition. 4. SAME-EVIDENCE-SUFFICIENCY.

Evidence in a suit to set aside a conveyance examined, and held insufficient to overcome the inference that the grantee exerted undue influence in securing the conveyance. 5. SAME-RELIEF-SUFFICIENCY.

Plaintiff conveyed to defendant land worth $1,200, and transferred personalty worth $50. The value of two tracts of land conveyed by defendant in consideration therefor was $180 and $182, respectively. Defendant also paid $130. Plaintiff placed permanent improvements worth $25 on one of the tracts received from defendant. Held, that a decree setting aside plaintiff's deed properly required him to pay $50, as a condition precedent for the cancellation thereof.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, $$ 3338.] 6. SAME_CONDITIONS PRECEDENT — RESTORATION OF STATUS OF PARTIES—TENDER.

In a suit to set aside a conveyance for fraud and undue influence, it appeared that plaintiff had received, in consideration of the conveyance, deeds to two tracts of land. Plaintiff was mentally deficient, and led his attorney to believe that he had executed to defendant a deed to one of the tracts, so that a deed to the other tract was the only deed tendered before the suit was commenced. At the trial, when it was ascertained that no deed had been given to the former tract, a deed thereto was executed by plaintiff and tendered. Held, that the tender was sufficient.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, § 38.)

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by E. Owings, by his next friend, J. H. Wilson, against Henry H. Turner. From a decree for plaintiff, defendant appeals. Alfirmed.

(48 Or. 462)

OWINGS V. TURNER. (Supreme Court of Oregon. Oct. 30, 1906.) 1. PARTIES--DEFECTS—WANT OF CAPACITYMODE OF OBJECTION.

B. & C. Comp. $ 68, permits a defendant to demur to a complaint when it appears on the face thereof that plaintiff has not legal capacity to sue. Section 69 requires the demurrer to specify the grounds of objection to the complaint. Section 72 provides that, where no objection be taken, defendant shall be deemed to have waived the same, etc. An action to set aside a deed, alleged to have been secured in consequence of the grantor's mental weakness and the grantee's fraud, was brought by the grantor by his next friend. Held, that the next friend must be regarded as a party, and if he had no right to maintain the suit, the defect was apparent on the face of the complaint, and defendant waived the same by failing to demur on that ground.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Parties, $8 167, 168.) 2. DEPOSITIONS - PERSON AUTHORIZED

TO TAKE-AGREEMENT OF PARTIES_ORDER.

B. & C. Comp. $ 827, authorizes the appointment of a special referee in suits in equity to take the testimony of witnesses. The parties

•Rebearing denied December 11 1906.

Carey F. Martin, for appellant. H. J. Bigger and C. W. Corby, for respondent.

MOORE, J. This is a suit by E. Owings by his next friend, J. H. Wilson, against Henry H. Turner, to set aside a deed; the ex. ecution of which is alleged to have been se cured in consequence of the plaintiff's mentai weakness, and the defendant's undue influ. ence and fraud. The cause was tried and

a decree rendered as prayed for in the com having been made in pursuance of such agreeplaint, from which the defendant appeals; ment, the testimony, as taken and certified his counsel contending that, if the plaintiff to by IIolden, was entitled to be read in was unable to transact business by reason of evidence. his alleged infirmity, he should have been Considering the case on its merits, the testirepresented by a general guardian, or by some mony shows that, on August 20, 1901, the person specially appointed for that purpose, plaintiff

' was the owner of 10 acres of land and that Wilson was unauthorized to appear in Marion (ounty, near Chemawa, which on for him in the capacity stated or to institute that day he conveyed to the defendant, lethe suit in his behalf, and hence error was ceiving a deed for 30 acres of land in Lane committed in overruling the demurrer to the county which he had never seen, and $125 complaint. The complaint was challenged on in money, of which sum the defendant paid the ground that it did not state facts suffi Chris Boss, a real estate broker, $25, as liis cient to constitute a cause of suit. The stat. commission for negotiating the sale of plainute permits a defendant to demur to a com tiff's laund. A few days thereafter the defendplaint when it appears on the face thereof, ant paid the plaintiff $3 for his household either- * *

(2) that the plaintiff has goods, tools, hay, etc., taking a receipt therenot legal capacity to sue; or * * * (1) for. The plaintiff examined the land in Lane that there is a defect of parties plaintiff.” county, which had been conveyed to him, B. & C. Comp. $08. "The demurrer nust and, being dissatisfied therewith, he so inspecify the grounds of objection to the ('om formed the defendant, who executed to him plaint." Id. $ 69. If no objection be taken, a deed for 7.31 acres of land near the Reform the defendant shall be deemed to have waived School, on which the plaintiff erected a small the same, except only to the jurisdiction of cabin, and made other permanent improvethe court, and that the complaint does not ments. This suit was thereafter instituted state facts sufficient to constitute a cause for the purpose indicated, and also to recover of suit or action. Id., § 72. "Ordinarily,” the value of the personal property specified, says Mr. Justice Wolverton, in Osborn v. which is alleged to have been reasonably Logus, 29 Or. 302, 37 Pac. 436, 38 Pac. 799: worth the sum of $153.40. Dr. W. A. Cusick, "The objection arising from a defect of par a reputable poliysician, who has made a study ties should be taken by demurrer, if it ap of mental diseases, and treated persons afpears from the face of the complaint, other flicted therewith, testified that he had exwise by answer, and if by neither, it is amined Owings, who is about 18 years old deemed waived.” The incapacity of a plain and unmarried, and found him lacking in distiff to sue where, as in the case at bar, he (retion and understanding; that, in his opinis represented by a next friend, who is re ion, the plaintiff had been more or less dlegarded as a party, within the meaning of fective all his life, and, as he grows older, the statute relating to the conduct of suits his infirmity will probably become aggravat(14 Enc. Pl. & Pr. 1000), is an imperfection ed, resulting in a total breakdown, so that which, if it exists, is apparent on the face he will ultimately have to be taken care of. of the complaint, and as the demurrer in In referring to the plaintiff's condition at terposed was not based on that ground, the the time he made the examination, the witobjection now insisted upon was waived. ness further said: "His appearance was a is maintained by defendant's counsel that an telltale appearance. There was a progresserror was committed in overruling their mo ive emaciation, or at least a wasting away tion to suppress certain depositions, The

of the physical powers which proclaimed court, on plaintiff's motion and by (onsent broadcast his imperfect physical health." of the defendant, appointed C. II. IIolden, The plaintiff's counsel, complying with the who is stated in the order to be a notary statutory permission (B. & C. Comp. $ 718, public, as special referee to take, on, behalf subd. 10). called nonexpert witnesses, who of the plaintiff, the testimony of James Young were intimately acquainted with Owings, and M. D). Scott. Holden took the testimony, and who severally expressed an opinion as and in the certificate attached to their dep- to his mental condition at the time he exositions he wrote after his name the phrase: ecuted his deed, giving the reason for the “Special Referee and U. S. Commissioner | belief so entertained. An examination of the for Oregon." It is argued that he was not testimony on this branch of the case cona notary public, and, for this reason, the evi vinces us that Owings is not non compos dence should have been excluded. A special mentis, but is and was, August 20, 1904, afreferee may be appointed in suits in equity ficted with mental weakness which his conto take the testimony of witnesses, who, as versation, general appearance, and conduct bein the case at bar, reside more than 20 tray. He posseses, however, sufficient mental miles from the place of holding court. B. & capacity fully to appreciate and understand C. Comp. $ 827. The parties hereto having the nature and effect of all his transactions, stipulated that Holden should be appointed, and was and is competent to make a binding his selection as special referee was evidently contract, and to execute a valid deed. Carbased on his well-known qualification to dis nagie v. Diven, 31 Or. 366, 19 Pac. 891; charge the duty intrusted to him, and not be Swank v. Swank, 37 Or. 439, 61 Pac. 816; cause he was supposed to have been com Dean v. Dean, 42 Or. 290, 70 Pac. 1039. missioned a notary public. The selection This brings us to a consideration of the

87 P.-11

question whether or not Owings, in conse consideration for the land near the Reform quence of his intellectual impairment, was School, or gave him $10 for executing a induced by the defendant to enter into deed therefor; but admits that Owings a contract, whereby the latter secured an paid the livery bill for the horse and carimproper advantage by unfair means, which riage used in going to the land. Boss, as amounts to fraud, deceit, or imposition. Ow the defendant's witness, corroborates Turings, as a witness in his own behalf, testi ner's testimony in every particular, relating fied in effect: That his health having failed to the terms of the contract entered into while living on the 10 acres referred to, when the exchange of lands was effected. he concluded to sell or trade the premises Notwithstanding

Notwithstanding such confirmatory testiand go South, thinking the change of cli mony, we think the inadequacy of the conmate would be beneficial to him. That, sideration. hereinafter referred to, when with this idea in view, he came to Salem, considered in connection with the plaintiff's August 20, 1904, where he met Chris Boss, mental weakness, which his physical cona real estate broker, who took him to Tur- dition denoted, together with certain facts ner's office, where the defendant informed and circumstances associated with the whole him that he owned 30 acres of well-watered transaction, sufficient to create an

an infergarden land in Lane county, which he would ence that the defendant exerted an undue exchange for the plaintiff's tract. That a influence over the plaintiff in securing his trade was finally consummated by an ex deed, which prevented him from judging change of deeds, though the witness had never accurately and acting independently in the seen the land offered; the defendant paying matter. Archer v. Lapp, 12 Or. 196, 6 Pac. him the further consideration of $105, and 672. This deduction, which the law directs taking a bill of sale of certain personal prop in such cases, imposed on the defendant erty. That the plaintiff thereafter went the burden of showing that the plaintiff to Lane county, examined the land refer

acted knowingly, intentionally, and deliberred to, and found it rocky, without water, ately, with full knowledge of the nature and situated on the side of a mountain. and effects of his acts, and that his conThat he immediately returned and notified sent to the execution of his deed was not the defendant of his dissatisfaction, who obtained by any advantage taken of his informed him, for the first time, that lie condition (2 Pomeroy, Equity [2 Ed.] § 928), owned 7.31 acres of land near the Reform which inference has not, in our opinion, School which he would exchange for the

exchange for the been overcome by the corroborating testi30 acres, and threatened that, if he com

mony mentioned. menced a suit to set aside his deed, he would. It conclusively appears that the land conprolong the litigation until the expenses of veyed by the plaintiff was, at the time the the trial would leave nothing for him. That deed was executed, reasonably worth the the witness, hiring a horse and carriage, sum of $1,200. The court found that the took the defendant to the land which he

value of the personal property transferred offered to trade, and they perfected a bar by him to defendant was $50, which congain in relation thereto, whereby the plaintiff clusion of fact we adopt. The depositions paid on account of the land the sum of $12,

of the witnesses who live near the land in and gave the defendant $10 for drawing the Lane county conveyed to the plaintiff, and deed therefor. That he erected a small who know the character thereof, are to the house, and made other improvements on the effect that the premises have been burned premises. The defendant, as a witness in over, destroying the timber; that the soil his own behalf, testified that: The agree is rocky, the surface too steep to be plowed ; ment entered into required him to execute and that the land is wholly valueless. A deeds for the lands mentioned in Lane and witness for the defendant, however, who Marion counties, and to pay the further had hunted deer on this land, estimated it consideration of $130, in exchange for the to be worth from $6 to $10 an acre. In plaintiff's deed. That, in examining the title attempting to harmonize this testimony, if to the plaintiff's land, he discovered a defect it be assumed that this land is worth $6 an therein which could only be corrected by se acre, the lowest estimate placed thereon by curing quitclaim deeds from former owners the defendant's witness, the value thereof of the premises, whereupon it was stipu is $180, though the trial court found it to lated that the land in Lali county only be reasonably worth only $75. The witnesses should be conveyed, and that the legal title who have recently seen the land near the to the land near the Reform School should Reform School testified that it is gravelly, be retained until such defect was remedied. . subject to overflow, and that about three The defendant denied that he made any acres thereof having been plowed, the alrepresentations to the plaintiff concerning | luvial soil thereon had been washed away, the location or kind of land mentioned in so that the whole tract was of no greater Lane county, telling Owings that he had value than from $15 to $25 an acre, at never seen it, and advising him to examine which latter sum the premises are worth the premises before he executed his deed ; $182.75, though about six years prior to but he declined to do so. He also denied the trial the land had been sold for $60 an that the plaintiff paid him any sum as a acre. The answer admits that the value

of the permanent Improvements which the MCCARTY, C. J. This is an appeal by the plaintiff placed on the land near the Reform state from a judgment rendered by the Fourth School is $25, so that the entire consider Judicial district court in Utah county. It ation which he received for his real and appears from the record that an information personal property and improvements, valued was filed in said court charging the defendat $1,275, was the land in Lane and Marion ants jointly with the crime of burglary in counties, of the reasonable value of $180 | the first degree. The information, in suband $182.75, respectively, and $130 in money, stance, charged that the defendants, on the or $495.75. On account of the sum of money 30th day of March, 1906, at the county of 80 received, the plaintiff transferred per Utah, unlawfully, feloniously, during the sonal property worth $50, and made im- nighttime of said day, did break and enter provements admitted to be of the value of | into a certain building (describing it), then $25, and was required, as a condition preced and there being the property of A. B. Adams, ent to the granting of the relief sought, with intent the goods and chattels of said A. to pay the further sum of $50, which ac B. Adams therein being unlawfully, willfully counting we approve. When this suit was and feloniously to steal, take, and carry Instituted the plaintiff's counsel understood away. The defendants were duly arraigned from their client that he had executed to on the information, and pleaded not guilty. the defendant a deed to the land in Lane They demanded separate trials, which was county when he had only left the deed with granted, and the case against Watson was him. Based on such misconception, a deed set for trial for May 21, 1906. The case came to the land near the Reform School only on regularly for trial on said date, and, after was tendered before the suit was commenc the evidence was all in, the court refused to ed. At the trial, however, when the fact submit the case to the jury, and, over the was ascertained, a deed to the land in Lane district attorney's objection, discharged the county was executed by the plaintiff and jury sworn to try the case, and dismissed the tendered. In view of Owings' mental con action. The regularity of the proceedings dition and of the reasonable misunderstand was not challenged, nor was there any quesing of his counsel resulting from his infirm tion raised respecting the sufficiency of the ity, the tender was sufficient.

evidence. The only question presented by the Believing that the plaintiff is competent appeal involves the construction of the statto execute to the defendant valid deeds of ute under which the action was prosecuted. the real property which he received, and that Section 4334, Rev. St. 1898, so far as matea reconveyance of the premises will place rial in this case, provides that “every person him in statu quo upon the payment of $50, who, in the nighttime, forcibly breaks and the decree is affirmed.

enters, or without force enters through any open door, window, or other aperture, any house, room, apartment,

with in(31 Utah, 168)

tent to commit larceny or any felony, is guilty STATE v. AOWS et al.

of burglary." In 1905 the Legislature amend(Supreme Court of Utah. Oct. 20, 1906.)

ed the sections of the statute defining bur1. BURGLARY-INFORMATION-SUFFICIENCY.

glary and housebreaking (Sess. Laws 1905, Under Rev. St. 1898, § 4334, as amended

p. 16, c. 19), and, under the law as amended, by Sess. Laws 1905, p. 16, c. 19, making it bur we have burglary in the first and second de glary for any person to break and enter a build

grees instead of burglary and housebreaking. ing with intent to commit a larceny or any other felony, an information charging the breaking

Before amended, section 4334 made it burand entering a building at night with intent to glary for a person to break and enter, etc., steal goods, without stating their value, suffi “with intent to commit larceny or any felony." ciently charges a burglary in the first degree, as

As amended, the section reads "with Intent larceny within such section includes, both a misdemeanor and a felony, and the words "or any

to commit larceny or any other felony." The other felony" are equivalent to "or any felony only difference in the language of section 4334 other than that embraced within the larceny.'

as it formerly stood and as it is now amend(Ed. Note.-For cases in point, see vol. 8, ed is the word "other.” The trial court held, Cent. Dig. Burglary, $$ 64, 65.]

under the law defining burglary as it exists 2. CRIMINAL LAW-JEOPARDY.

since the amendment, that the intent in burWhere a jury was impaneled and sworn to try accused, and the cause was dismissed after

glary in the first degree must be to commit the evidence was all introduced, he was thereby a felony. And, as the information in this placed in jeopardy, and cannot be tried again case does not charge an intent to steal goods for the crime charged in the information, or any

of the value of $50 or more, it fails to charge other offense included therein. [Ed. Note.-For cases in point, see vol. 14,

a public offense. This was error. The statCent. Dig. Criminal Law, 88 316, 328.)

ute uses the general term "la rcery,” which in

cludes both a misdemeanor and a felony. It Appeal from District Court, Utah County : | implies felony in larceny without limiting or J. E. Booth, Judge.

restricting in anywise the general scope of Clyde Hows and William Watson were

the term "larceny." The words "or any acquitted of a charge of burglary, and the

other felony,” as used in this statute, are state appeals. Reversed.

equivalent to the words "or any felony other D. D. Houtz, Dist. Atty., for the State, than that embraced within the larceny.” We

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