the court without the intervention of a jury, resulting in a finding for the plaintiff, with damage assessments for the value of the horse of $125, of the wagon $90, and special damages of $145 for the use of the horse and wagon from the time of their conversion to the commencement of the suit. Defendant appeals.

PER CURIAM. Since reversing the judg- [ter of the answer. The cause was tried by ment in this cause an affidavit has been filed by plaintiff's counsel calling attention to the fact that when this action was commenced his client caused certain of defendant's property to be attached as security for any judgment that he might obtain, and that if a nonsuit is entered as directed he will be remediless, setting forth the circumstances whereby such a result might be possible.

In view of the consequences apprehended, the order directing a nonsuit will be set aside, and the cause is remanded for such further proceedings as may be necessary.

(58 Or. 526)

SINGER V. PEARSON-PAGE CO.† (Supreme Court of Oregon. April 25, 1911.) 1. APPEAL AND ERROR (§ 1010*)-REVIEW OF FACTS-CONCLUSIVENESS OF FINDINGS. Findings of the court in a cause tried without a jury have the force and effect of a verdict, and cannot be disturbed where there is any competent evidence to support them.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. 8 1010.*]

Oscar A. Neal (Wilson & Neal, on the brief), for appellant. J. Silvestone, for respondent.

BEAN, J. [1] The defendant assigns as error that there was no testimony to support the findings of fact, particularly as to the value of the horse and wagon. Testimony was produced tending to support the allegations of the complaint. Plaintiff testified as to what he considered the value of the horse and wagon, which evidence was admitted without objection from defendant. The value of the property practically was uncontested, but its ownership was con tested, and the testimony in regard thereto was conflicting. When a cause is tried by the court without a jury, the findings may have the force and effect of a verdict of a The measure of damages in trover, where jury, and cannot be disturbed if there is any plaintiff neither alleges nor shows special dam-competent evidence to support them. Upon age, is the value of the property at the time of appeal this court will not review the weight Savage v. or sufficiency of the evidence. Salem Mills Co., 48 Or. 1, 85 Pac. 69; Seffert v. Northern Pacific Co., 49 Or. 95, 88 Pac. 3. TROVER AND CONVERSION (§ 32*) - Coм-962; McClung v. McPherson, 47 Or. 73, 81 PLAINT ALLEGATIONS AS TO DAMAGE-SPE- Pac. 567, 82 Pac. 13. CIAL DAMAGE. Where a complaint in trover for the conversion of a horse and wagon does not allege special damage on account of the owner's loss of their use from the time of taking, such dam

2. TROVER AND CONVERSION (8 44*)-MEASURE OF DAMAGES.

the conversion with interest to the trial.
[Ed. Note.-For other cases, see Trover and
Conversion, Cent. Dig. §§ 260-261; Dec. Dig.
§ 44.*]

ages are not recoverable.

[Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 32.*]

[2] It is contended by defendant that under no circumstances was the plaintiff entitled to recover as an element of damages anything for the use of the property converted, as that is not a proper measure of damages in an action for conversion. In an 4. TROVER AND CONVERSION (8_39*) — Ac-action in trover the rule for the measure of. TIONS-EVIDENCE-EXTENT OF DAMAGE. damages is well understood. The title to In an action for conversion, evidence of the property, alleged to have been converted, the value of the property within a reasonable is regarded as having passed to the defendtime both prior and subsequent to the conversion is admissible to show its value at the time of the conversion.

[Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 229-231; Dec. Dig. $ 39.*]

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action for conversion by J. F. Singer against the Pearson-Page Company. Judgment for plaintiff with special damages, and defendant appeals. Reversed as to special damages and remanded, with directions to enter judgment for plaintiff for the amount of damages assessed, less the special dam

ages.

The complaint is in the usual form. The answer pleads the general issue, and alleges ownership of the property in defendant, and the reply puts in issue the affirmative mat

ant, who is liable for its value, together with simple interest. "The measure of damages, therefore, in an action of trover, unless plaintiff, by reason of the unlawful act of the defendant, has suffered some special loss or injury, which must be alleged, is the value of the property at the time of the conversion, with interest thereon to the trial." Eldridge v. Hoefer, 45 Or. 239, 77 Pac. 874, citing 4 Sutherland, Dam, (3d Ed.) § 1109; 2 Sedgwick, Dam. (8th Ed.) § 493; Field, Dam. § 792; Eggleston, Dam. § 288.

[3] In the case under consideration it is not alleged or shown that plaintiff has suffered any special loss or injury on account of the acts of defendant. Gove v. Watson, 61 N. H. 136, was an action in trover for the conversion of oxen which had been returned and accepted by the plaintiff. Dur

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

ing defendant's possession of the oxen he worked them without plaintiff's knowledge ed into an executory contract with defend

Cone failed to make any payments after December, 1908, and, after being frequently A purchaser of realty having made default urged to pay the balance due and threatened in payment, and having thereby forfeited all rights which he had under his executory conwith eviction from the premises, he finally tract, there remained in him no equitable in- agreed to surrender the premises and to pay terest in the property which could be subject to rent as a tenant. Thereupon he indorsed upa mechanic's lien in favor of one furnishing improvements thereon under contract with such on the contract of purchase, which he had, purchaser, nor did the purchaser's assignment the following assignment: "Portland, Oreto the vendor of his rights and interests in the contract vest in the vendor any interest which could be made subject to such lien; such assignment amounting merely to a surrender of his possession, without the formality of an eviction.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

MCBRIDE, J. (after stating the facts as above). [1] We are satisfied from the evidence that neither appellant nor any one authorized to act for her had any knowledge that the water system constructed by plaintiff was being placed in the building until long after it had been installed, and the authorities are clear that a vendee of real property under a contract of sale of the character of the one at bar cannot incumber it without the consent of the actual owner. Belnap v. Condon, 34 Utah, 213, 97 Pac. 111, 23 L. R. A. (N. S.) 601; Rossi v. MacKellar (Com. Pl.) 13 N. Y. Supp. 827.

[2] The next question for consideration is whether at the commencement of this suit

there remained in Cone or in Mrs. Bingham,

In Kerrick v. Ruggles, 78 Wis. 274, 47 N. W. 437, Ruggles purchased from the NellPratt Lumber Company certain land, under a contract, the terms of which are not disclosed, and went into possession of the premises and built a mill thereon: Ruggles, with the knowledge and consent of the Neil-Pratt Lumber Company, bought of Kerrick, and installed in the mill, certain heavy machinery, which was affixed to the realty. It was held that under these circumstances a subsequent cancellation of the contract of purchase did not extinguish Kerrick's lien for the price of the machinery. The terms or circumstances

under which the cancellation was made are not given, and whether there had been any previous default in payments does not ap

pear.

In Wingert v. Stone, 142 Pa. 258, 262, 21 Atl. 812, Stone purchased a town lot and built a house thereon. He failed to pay for the materials used in the erection of the

building, and thereafter refused to make further payments on the lot. His wife conveniently stepped in and contracted with the original vendor to complete the purchase, and

by Cone's assignment, any equitable interest of Cone that could be the subject of a decree of foreclosure. There is no question but that the legal title to the property remained in Mrs. Bingham, and the only right that Cone ever had in the property was a right to demand a conveyance upon making the payments required in the contract, and the right to remain in possession so long as he continued to make the payments. He had no interest in a single foot of the soil or a single board in the building, but a right to demand a conveyance of these upon compliance with his contract. Had he sold what right he had, the purchaser could only have stepped into his shoes, and by complying with his contract enabled himself to finally demand a deed. The assignment to Mrs. Bingham under the circumstances merely amounted to a surrender of his possession, without the formality of an eviction. He had forfeited his right and was about to be turned out, and really had nothing to assign, and his attempted assignment conveyed nothing, because he had nothing. A decree order-eration for such surrender, to pay a lien ing his interest to be sold would simply authorize plaintiff to sell his imaginary right in a forfeited contract-a right to demand the fulfillment of a broken and therefore void agreement.

Adams v. Russell, 85 Ill. 284, cited by counsel, is not in point. In that case King, Dayton & Adams sold a lot to one Watson, who purchased from Russell lumber, giving

his note therefor, with which he built a

then claimed that she held the house free from the lien. The court held that the husband had an equitable estate in the property which was not divested by refusing to pay the installments, but which should have been reconveyed. The court observed that this was a new way to get a house without paying for it, but does not seem to have gone very deeply into the case, either by way of statement of facts or discussion of the law.

In Boyd v. Blake, 42 Minn. 1, 43 N. W. 485, the vendor of land accepted a surrender of the contract of sale, agreeing, as a consid

claim which the vendee had incurred. The court held that this agreement subjected the surrendered land to the lien. In the case at bar there is no such agreement. The case of King v. Smith, 42 Minn. 286, 44 N. W. 65, seems to turn upon the construction of what the court calls an "awkwardly worded" statute of Minnesota, and, while there are some expressions used therein that appear to sup

house on the land. Subsequently he default-port plaintiff's contention here, they are not convincing. ed in his payments on the lot and reconveyed to his grantors; they agreeing to discharge the note. The court held that this agreement rendered the land liable on the foreclosure of a lien for the lumber, which the note was given to secure. It will be noted in the first place that, in the case above alluded to, the grantors made an absolute deed to the premises, reserving only a vendor's lien, and that, upon the reconveyance, they expressly agreed to pay the debt which was embraced in the lien.

It is always in the power of one furnishing materials for the erection of a building to ascertain the interest therein of the person with whom he is contracting, and if he neglects this necessary precaution the courts ought to allow him to suffer the consequences of his negligence, rather than to saddle the loss upon innocent parties by a forced construction of the law.

The decree will be reversed, and one entered here dismissing the suit.

(63 Wash. 297)

STATE v. MORROW. (Supreme Court of Washington. April 27, 1911.)

1. CRIMINAL LAW (§ 15*)-STATUTORY RAPE REPEAL.

Bal. Code, 7062, subdiv. 3, as to statutory rape, continued in force as to an offense theretofore committed, notwithstanding the repeal thereof by the present Criminal Code (Sess. Laws 1909, c. 249).

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1, 16-20; Dec. Dig. § 15.*] 2. CRIMINAL LAW (§§ 1122, 1086*)-APPEALREVIEW-RECORD.

An assignment alleging error in instructions cannot be considered; the record neither containing them nor disclosing any exceptions thereto.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. §§ 1122, 1086.*]

3. RAPE (8 54*) – CORROBORATION OF PROSE

CUTRIX.

Evidence to corroborate testimony of prosecutrix in rape held sufficient.

[Ed. Note. For other cases, see Rape, Cent. . Dig. §§ 83, 84; Dec. Dig. § 54.*]

4. CRIMINAL LAW (§ 453*) — OPINION EVIDENCE-IDENTIFICATON OF ACCUSED.

A witness, though not positive, may give her opinion that accused was the man she saw. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1043; Dec. Dig. § 453.*] 5. CRIMINAL LAW (§ 11702*)-HARMLESS ERROR-WITNESS-OMISSION OF OATH.

That a witness testified before being sworn was not prejudicial; his testimony being withdrawn on this being discovered, and he having subsequently, after being sworn, given substantially the same testimony.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. 8 11702.1

Department 2. Appeal from Superior Court, King County; J. T. Ronald, Judge. Frank Morrow was convicted of rape, and

appeals. Affirmed.

Will H. Thompson, for appellant. George F. Vanderveer and A. G. McBride, for the State.

CROW, J. Appellant was tried and convicted upon an indictment which, omitting formal parts, reads as follows: "Frank Morrow is accused by the grand jury of the state of Washington for the county of King, by this indictment, of the crime of rape, committed as follows: That Frank Morrow, at the county of King, state of Washington, on the 10th day of August, A. D. 1907, in and upon one Maud Wilson, a female child under the age of eighteen years, to wit, of the age of sixteen years, and not the wife of the said Frank Morrow, feloniously did make an assault, and her, the said Maud Wilson, then and there feloniously did carnally know, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Washington. Dated at Seattle, Washington, this 25th day of February, A. D. 1910."

[1] The prosecution was under subdivision 3 of section 7062, Ballinger's Ann. Codes & St. Appellant contends the trial judge erred in directing his trial under this section, which he insists has been repealed by the enactment of our present Criminal Code (Sess. Laws 1909, c. 249). There is no merit in this contention. Under repeated holdings of this court, he was properly tried under section 7062, Ballinger's Ann. Codes & St., which was the statute in force at the date of the crime charged. State v. Hanover, 55 Wash. 403, 104 Pac. 624, 107 Pac. 388; In re Newcomb, 56 Wash. 395, 105 Pac. 1042; State v. Newcomb, 58 Wash. 414, 109 Pac. 355; State v. Lorenzy, 59 Wash. 308, 109 Pac. 1064.

[2] Complaint is made of error alleged to have been committed in a portion of the instructions, and in the giving of an oral instruction while ruling on the admissibility of evidence, which oral instruction was not

thereafter incorporated in the formal written instructions. This assignment cannot be considered. The record neither includes the written instructions, nor does it disclose any exceptions taken by appellant.

[3] The state announced its election to rely for conviction upon an act of intercourse claimed to have occurred on December 5, 1908. Appellant insists the evidence was insufficient; his controlling contention being that the testimony of the prosecuting witness, Maud Wilson, as to the particular act selected by the state, was not sufficiently supported or corroborated by other evidence. Under our statute her testimony must be corroborated. She testified that on Decem

ber 5, 1908, when she was temporarily employed at a private residence of one Brandt in the city of Seattle, appellant called there for her, took her to a store on Seventh and Pike streets, and purchased her a new coat; that, wrapping her old one in a paper, she carried the package in her hands; that they then proceeded to a corner drug store, where appellant left her while he went to a lodging house near by and secured a room; that he returned, and took her from the drug store to the lodging house; that the landlady objected to their occupying the same room; that appellant, who was then about 46 years of age, said the prosecuting witness was his daughter, and that he could not afford to pay for two rooms; that the landlady placed a lounge for the prosecuting witness in the room, which was already furnished with a bed; that appellant and the prosecuting witness. occupied the room that night and had sexual intercourse, and that next morning appellant took her to a nearby restaurant for breakfast. Mr. Brandt testified that he recognized the prosecuting witness as having lived at his home for about a week, that he remembered the incident of a man calling there, but that he

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexe 115 P.-11

corroboration of the prosecuting witness to warrant a conviction. It might be further stated that the prosecuting witness also testified to other criminal acts of the appellant, several of which occurred in the city of Tacoma. As to one instance, a Tacoma hotel clerk testified that appellant had registered himself and the prosecuting witness as father and daughter, that they had occupied the same rooms, and that he recognized and identified them.

could not positively identify the defendant | dence of these various witnesses and the as that man. Officer Adams, a detective of circumstances stated by them were sufficient the Seattle police department, testified that he had known appellant for a number of years; that he saw him with the prosecuting witness at the corner drug store, not far from the lodging house, on the evening mentioned; that he observed her while she was waiting alone, and noticed her having a package; that he saw appellant take her away; that he supposed she was appellant's daughter; and that he could fix the time by reason of a recent violent death as to which he was then seeking information. The landlady testified to the incident of a man calling at her place at the time mentioned. She said he engaged the room, and shortly thereafter returned with a young girl; that she objected to them occupying the same room; that he claimed the girl was his daughter; that she put a lounge in the room for the girl; that they occupied the room that night; that although not positive, she thought the appellant was the same man; and that by reason of some subsequent interview, not stated, which had occurred between her and the prosecuting witness, she was of the opinion she was the girl, although she could not so testify. A waitress in the near-by restaurant testified she saw appellant and the prosecuting witness taking breakfast together the next morning.

[4] Appellant insists the evidence of the landlady was incompetent and improperly admitted as she did not positively identify the girl, and that she should not have been permitted to state her opinion as to the identity of appellant. Her evidence thus stating her opinion was competent. State v. Murphy, 15 Wash. 98, 45 Pac. 729. "The evi

dence on the question of the identity of the prisoner is permitted to take a broad range. Any fact which shows the acquaintance and familiarity of the witness testifying to the identity of defendant is admissible. The identification by the witness need not be positive and certain, but it is enough for him to testify that he believes or has an impression that the accused is the person he saw commit the crime." 12 Cyc. 392. Craig

v. State, 171 Ind. 317, 86 N. E. 397.

The

landlady did not testify that she could identify the girl, but did say she thought the appellant was the man who engaged the room, although not positive. Her account of the incident that had occurred with a man

and girl as previously narrated by the prose cuting witness, coupled with the statement of her opinion that appellant was the man, although she was not positive, was admissible; the jury being the judges of the credibility and weight of her evidence. The evi

[5] One witness for the state had testified at some length before it was discovered that he had not been sworn. When the prosecuting attorney called attention to this omission, the trial judge immediately withdrew his evidence from the jury. The witness was thereupon sworn and repeated his statements. The appellant moved the court to withdraw the case from the jury, to discharge the jury, and to call another to try the cause, and now insists that the trial judge erred in denying these motions, and in permitting the witness to again testify We find no merit in this after being sworn. contention. The evidence repeated under oath after the witness had been duly sworn was substantially the same as that previously given, and we fail to see that the appellant was prejudiced. In Southern Railroad Company v. Ellis, 123 Ga. 614, 51 S. E. 594, the third syllabus prepared by the court reads as follows: "Where, by inadvertence, a witness was not sworn before giving testimony in regard to the case on trial, upon the discovery of such fact pending the trial, there was no error in permitting him to be recalled to the stand and sworn and allowed to

testify as a witness." In Slauter v. White

lock, 12 Ind. 338, it was held that, if a mis-
take in not having a witness sworn is dis-
covered before the jury retired, it may be
corrected by swearing the witness and rehear-

ing his testimony, or the jury may be in-
structed to disregard his statements. Both
of these methods of procedure were adopted
by the trial judge in this cause which cer-
to which he was entitled.
tainly afforded the appellant every protection

and a careful consideration of all points pre-
After an examination of the entire record,
sented and urged by the appellant, we are
unable to conclude that any prejudicial er-
ror has been committed. The appellant has
been awarded a fair trial, has been ably and
skillfully defended, and the verdict of the
jury must stand.

The judgment is affirmed.

DUNBAR, C. J., and CHADWICK and MORRIS, JJ., concur.