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PER CURIAM. Since reversing the judg- [ter of the answer. The cause was tried by ment in this cause an affidavit has been filed the court without the intervention of a jury, by plaintiff's counsel calling attention to resulting in a finding for the plaintiff, with the fact that when this action was com- damage assessments for the value of the menced his client caused certain of defend- horse of $125, of the wagon $90, and special ant's property to be attached as security for damages of $145 for the use of the horse and any judgment that he might obtain, and wagon from the time of their conversion to that if a nonsuit is entered as directed he the commencement of the suit. Defendant will be remediless, setting forth the circum- appeals. stances 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.

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 jury, and cannot be disturbed if there is any competent evidence to support them. Upon appeal this court will not review the weight or sufficiency of the evidence. Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69; Seffert v. Northern Pacific Co., 49 Or. 95, 88 Pac. 3. TROVER AND CONVERSION (§ 32*)-COM-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

ages are not recoverable.

(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.*]

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

The measure of damages in trover, where plaintiff neither alleges nor shows special damage, is the value of the property at the time of

the conversion with interest to the trial.

[Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 260-261; Dec. Dig. § 44.*]

[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

In an action for conversion, evidence of the value of the property within a reasonable time both prior and subsequent to the conversion is admissible to show its value at the time of the conversion.

4. TROVER AND CONVERSION (§ 39*) - Ac-action in trover the rule for the measure of. TIONS-EVIDENCE-EXTENT OF DAMAGE. damages is well understood. The title to the property, alleged to have been converted, is regarded as having passed to the defendant, 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 The complaint is in the usual form. The of the acts of defendant. Gove v. Watson, answer pleads the general issue, and alleges 61 N. H. 136, was an action in trover for ownership of the property in defendant, and the conversion of oxen which had been rethe reply puts in issue the affirmative mat- turned and accepted by the plaintiff. DurFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Rehearing denied May 16, 1911.

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

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

[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.

ing defendant's possession of the oxen hel On August 15, 1908, Ralph R. Cone enterworked them without plaintiff's knowledge ed into an executory contract with defendor consent, and plaintiff sought to recover ant Mrs. Willie E. Bingham for the purthe value of such work as an item of dam-chase of a house and two lots in Brainard, ages, but the court held that the measure of Multnomab county. The purchase price was damages was the difference between the val. $1,800, of which Cone paid down the sum of ue of the oven at the time of their conver- $20, giving his promissory note for $1,780, sion and their value at the time they were payable in monthly installments of $20, with retaken by plaintiff. See, also, Flagler v. 6 per cent. interest per annum. Hearst, 91 App. Div. 12, 86 N. Y. Supp. 308. The contract provides that, in addition to [4] In Austin v. Vanderbilt, 48 Or. 206, 85 paying the installments on the note as they Pac. 519, 6 L. R. A. (N. S.) 298, 120 Am. become due, Cone shall, before November 1, St. Rep. 800. the holding of the court in an 1908, paint the house, and from time to time opinion by Mr. Justice Moore was that in make such other improvements as will keep an action in trover the value of property it in as good condition as it was in at the at the time of its conversion is generally the time of the execution of the contract. It measure of damages. To ascertain that val. is further agreed that, when the amount due ue, evidence of its worth within a reason. on the note shall be reduced to $1,200, Mrs. able time both prior and subsequent to the Bingham and her husban shall execute a conversion is admissibleciting many author- deed to the premises, and that Cone and ities.

wife shall execute a mortgage for the bal. We are therefore of the opinion that the ance due. It is further agreed that time is court erred in assessing special damages the essence of the contract, and that, if Cone for the use of the horse and wagon, and the shall default in the payment of the principal cause is remanded to the lower court, with or interest, Mrs. Bingham shall have the directions to enter judgment for the amount right to declare the agreement void and to of damages assessed, after deducting the spe retain all sums paid by him as ascertained cial damages of $145 for the use of the con- and liquidated damages for the use of the verted property.

premises. At the time the contract was ex. ecuted, city water had already been intro

duced upon the premises. (58 Or. 506)

Cone took possession in 1908, and in DeALASKA PLUMBING CO. V. BINGHAM

cember entered into a contract with plainet al.

tiff to install a hot-water boiler and fixtures, (Supreme Court of Oregon. April 27, 1911.) including a bathtub and water closet, all 1. MORTGAGES (12*)–EXECUTORY CONTRACT

of which was completed in that month, ex-RIGHT OF PURCHASER TO INCUMBER LAND. cept the connections between the boiler and

A purchaser of realty under an executory the beating coil in the stove, which were contract, under which legal title remained in left unplaced until February 3, 1909, for the the vendor, with right in the purchaser to de. mand a conveyance upon making the payments alleged reason that it was desirable to have required, and the right to remain in possession the kitchen plastered before the connections so long as he continued to make the payments, were made. At the latter date the conneccannoť incumber the land without the consent tions were finally made; the work consuming of the vendor.

[Ed. Note:- For other cases, see Mortgages, about five hours. A lien was filed by plainDec. Dig. § 12.* ]

tiff on March 23, 1909. 2. MECHANICS' LIENS (18*)—INTERESTS SUB

Cone failed to make any payments after JECT TO LIEN.

December, 1908, and, after being frequently A purchaser of realty baving made default urged to pay the balance due and threatened in payment, and having thereby forfeited all rights which he had under his executory con- with 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, wbich he bad, purchaser, por did the purchaser's assignment the following assignment: “Portland, Oreto the vendor of his rights and interests in the gon, July 19, 1909. For value I hereby as. contract vest in the vendor any interest which sign and set over all my right, title and incould be made subject to such lien; such assignment amounting merely to a surrender of terest in and to the within contract. Ralph his possession, without the formality of an R. Cone." He defaulted in the payment of eviction. (Ed. Note.-For other cases, see Mechanics' | legal proceedings. Other facts appear in the

the agreed rent, and was finally evicted by Liens, Cent. Dig. 19; Dec. Dig. § 18.*]

opinion. Plaintif had a decree, and defendAppeal from Circuit Court, Multnomah

ant Bingham appeals. County; William N. Gatens, Judge.

Action by the Alaska Plumbing Company B. E. Haney (Geo. G. Bingham and Jos against Willie E. Bingham and others. De- eph & Haney, on the brief), for appellant. cree for plaintiff, and the mentioned defend-C. A. Sheppard (Howard & Humphreys, on ant appeals. Reversed and dismissed. the brief), for respondent.

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 In Kerrick v. Ruggles, 78 Wis. 274, 47 N. above). [1] We are satisfied from the evi. W. 437, Ruggles purchased from the Nelldence that neither appellant nor any one au-Pratt Lumber Company certain land, under thorized to act for her had any knowledge a contract, the terms of which are not disthat the water system constructed by plain- closed, and went into possession of the premtiff was being placed in the building until ises and built a mill thereon. Ruggles, with long after it had been installed, and the au- the knowledge and consent of the Neil-Pratt thorities are clear that a vendee of real Lumber Company, bought of Kerrick, and inproperty under a contract of sale of the stalled in the mill, certain heavy machinery, character of the one at bar cannot incumber which was affixed to the realty. It was held it without the consent of the actual owner. that under these circumstances a subsequent Belnap v. Condon, 34 Utah, 213, 97 Pac. 111, cancellation of the contract of purchase did 23 L. R. A. (N. S.) 601; Rossi v. MacKellar not extinguish Kerrick's lien for the price of (Com. Pl.) 13 N. Y. Supp. 827. [2] The next question for consideration is under which the cancellation was made are

the machinery. The terms or circumstances whether at the commencement of this suit not given, and whether there had been any there remained in Cone or in Mrs. Bingham, by Cone's assignment, any equitable interest previous default in payments does not ap

pear. of Cone that could be the subject of a decree of foreclosure. There is no question

In Wingert v. Stone, 142 Pa. 258, 262, 21 but that the legal title to the property re

Atl. 812, Stone purchased a town lot and mained in Mrs. Bingham, and the only right built a house thereon. He failed to pay that Cone ever had in the property was a for the materials used in the erection of the right to demand a conveyance upon making building, and thereafter refused to make furthe payments required in the contract, and ther payments on the lot. His wife conventhe right to remain in possession so long as iently stepped in and contracted with the he continued to make the payments. He had original vendor to complete the purchase, and no interest in a single foot of the soil or a

then claimed that she held the house free single board in the building, but a right to from the lien. The court held that the husdemand a conveyance of these upon compli- band had an equitable estate in the propance with his contract. Had he sold what erty which was not divested by refusing to right he had, the purchaser could only have pay the installments, but which should have stepped into his shoes, and by complying been reconveyed. The court observed that with his contract enabled himself to finally this was a new way to get a house without demand a deed. The assignment to Mrs. paying for it, but does not seem to have Bingham under the circumstances merely gone very deeply into the case, either by way amounted to a surrender of his possession, of statement of facts or discussion of the without the formality of an eviction. He law. had forfeited his right and was about to be In Boyd v. Blake, 42 Minn. 1, 43 N. W. turned out, and really had nothing to assign, 485, the vendor of land accepted a surrender and his attempted assignment conveyed noth- of the contract of sale, agreeing, as a considing, because he had nothing. A decree order- eration for such surrender, to pay a lien ing his interest to be sold would simply au- claim which the vendee had incurred. The thorize plaintiff to sell his imaginary right court held that this agreement subjected the in a forfeited contract-a right to demand surrendered land to the lien. In the case the fulfillment of a broken and therefore void at bar there is no such agreement. The case agreement.

of King v. Smith, 42 Minn. 286, 44 N. W. 65, Adams v. Russell, 85 111. 284, cited by seems to turn upon the construction of what counsel, is not in point. In that case King, the court calls an “awkwardly worded" statDayton & Adams sold a lot to one Watson, ute of Minnesota, and, while there are some who purchased from Russell lumber, giving expressions used therein that appear to suphis note therefor, with which he built a port plaintiff's contention here, they are not house on the land. Subsequently he default

convincing. ed in his payments on the lot and reconveyed to his grantors; they agreeing to dis

It is always in the power of one furnishcharge the note. The court held that this ing materials for the erection of a building agreement rendered the land liable on the to ascertain the interest therein of the person foreclosure of a lien for the lumber, which with whom he is contracting, and if he negthe note was given to secure. It will be not- lects this necessary precaution the courts ed in the first place that, in the case above ought to allow him to suffer the consequences alluded to, the grantors made an absolute of his negligence, rather than to saddle the deed to the premises, reserving only a ven- loss upon innocent parties by a forced condor's lien, and that, upon the reconveyance, struction of the law. · they expressly agreed to pay the debt which The decree will be reversed, and one en. was embraced in the lien.

tered here dismissing the suit.

(63 Wash. 297)

STATE v. MORROW.

(Supreme Court of Washington. April
27, 1911.)

1. CRIMINAL LAW (§ 15*)-STATUTORY RAPEREPEAL.

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.

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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

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 corroboration of the prosecuting witness to he had known appellant for a number of warrant a conviction. It might be further years; that he saw him with the prosecuting stated that the prosecuting witness also teswitness at the corner drug store, not far tified to other criminal acts of the appellant, from the lodging house, on the evening men- several of which occurred in the city of Tationed; that he observed her while she was coma. As to one instance, a Tacoma hotel waiting alone, and noticed her having a clerk testified that appellant had registered package; that he saw appellant take her bimself and the prosecuting witness as fathaway; that he supposed she was appellant's er and daughter, that they had occupied the daughter; and that he could fix the time by same rooms, and that he recognized and reason of a recent violent death as to which identified them. he was then seeking information. The land- [5] One witness for the state had testified lady testified to the incident of a man call- at some length before it was discovered that ing at her place at the time mentioned. She he had not been sworn. When the prosecutsaid he engaged the room, and shortly there ing attorney called attention to this omisafter returned with a young girl; that she sion, the trial judge immediately withdrew objected to them occupying the same room; bis evidence from the jury. The witness was that he claimed the girl was his daughter; thereupon sworn and repeated his statethat she put a lounge in the room for the ments. The appellant moved the court to girl; that they occupied the room that night; withdraw the case from the jury, to disthat although not positive, she thought the charge the jury, and to call another to try appellant was the same man; and that by the cause, and now insists that the trial reason of some subsequent interview, not judge erred in denying these motions, and stated, which had occurred between her and in permitting the witness to again testify the prosecuting witness, she was of the after being sworn. We find no merit in this opinion she was the girl, although she could contention. The evidence repeated under oath not so testify. A waitress in the near-by after the witness bad been duly sworn was restaurant testified she saw appellant and substantially the same as that previously the prosecuting witness taking breakfast to given, and we fail to see that the appellant gether the next morning.

was prejudiced. In Southern Railroad Com[4] Appellant insists the evidence of the pany v. Ellis, 123 Ga. 614, 51 S. E. 594, the landlady was incompetent and improperly

third syllabus prepared by the court reads admitted as she did not positively identify as follows: "Where, by inadvertence, a witthe girl, and that she should not have been

ness was not sworn before giving testimony permitted to state her opinion as to the in regard to the case on trial, upon the disidentity of appellant. Her evidence thus covery of such fact pending the trial, there stating her opinion was competent. State v.

was no error in permitting him to be recallMurphy, 15 Wash. 98, 45 Pac. 729. "The evi

ed to the stand and sworn and allowed to dence on the question of the identity of the testify as a witness." In Slauter v. Whiteprisoner is permitted to take a broad range. lock, 12 Ind. 338, it was held that, if a misAny fact which shows the acquaintance and

take in not having a witness sworn is disfamiliarity of the witness testifying to the covered before the jury retired, it may be identity of defendant is admissible.

corrected by swearing the witness and rehear

The identification by the witness need not being his testimony, or the jury may be in.

Both positive and certain, but it is enough for structed to disregard his statements. him to testify that he believes or has an im- of these methods of procedure were adopted pression that the accused is the person he by the trial judge in this cause which cersaw commit the crime.” 12 Cyc. 392. Craig to which he was entitled.

tainly afforded the appellant every protection v. State, 171 Ind. 317, 86 N. E. 397. The landlady did not testify that she could iden- and a careful consideration of all points pre

After an examination of the entire record, tify the girl, but did say she thought the sented and urged by the appellant, we are appellant was the man who engaged the unable to conclude that any prejudicial erroom, although not positive. Her account of

ror has been committed. The appellant has the incident that had occurred with a man and girl as previously narrated by the prose skillfully defended, and the verdict of the

been awarded a fair trial, has been ably and cuting witness, coupled with the statement

jury must stand. of her opinion that appellant was the man,

The judgment is affirmed. although she was not positive, was admissible; the jury being the judges of the credi- DUNBAR, C. J., and CHADWICK and bility and weight of her evidence. The evi- | MORRIS, JJ., concur.

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