Plaintiff alleges that on April 13, 1915, before the note was due, "W. E. Davidson & Co. for a valuable consideration duly sold, indorsed, and delivered the said promissory note to the plaintiff." Defendant denies this, and alleges in his answer:

"That the plaintiff in this action, on or about March 20, 1915, and prior to his alleged purchase of said alleged promissory note, had notice and knowledge of all the matters alleged in this answer, and that plaintiff's alleged purchase of said alleged promissory note set forth in plaintiff's complaint was and is made for the purpose of assisting and aiding the said L. E. Bedwell and Lawrence Keyt in the collection and enforcing of the alleged promissory note set forth in plaintiff's complaint, and for no other purpose."

subject to the same defenses as if it were nonnegotiable; but a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter."

It being shown that the plaintiff was the holder of the note in question, the court charged the jury in part that it is a presumption of law that the plaintiff is a holder in due course, and defined such holder according to section 5885, instructing as follows:

"Under the issues made in this case the title of the person who negotiated the note would be defective if he obtained the instrument or the signature of the maker thereto by fraud or other unlawful means"

"If it has been shown by the evidence in this case that the title of the person who negotiated the instrument was defective, the burden is on the holder to prove that he acquired the title as a holder in due course.'

[2] This is denied by the reply. We think the issues in respect to this point advanced-and also: the case to the proof, and are sufficient after verdict. Although defendant averred that plaintiff had notice of the facts upon which he relied as constituting a defective title to the note, this being denied by the plaintiff raised the issue, which was tried out without objection as to the form of raising the same. L. O. L. § 72; Fisk v. Henarie, 13 Or. 156, 9 Pac. 322; Ready v. Schmith, 52 Or. 196, 95 Pac. 817; Rumble v. Cummings, 52 Or. 203, 95 Pac. 1111; Weishaar v. Pendleton, 73 Or. 190, 144 Pac. 401. Section 5885, L. O. L., declares who is a holder in due course as follows:

"A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it."

Section 5892 reads thus:

"Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he, or some person under whom he claims, acquired the title as a holder in due course; but the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title."

It is enacted by section 5889: "To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith."

See 3 R. C. L. p. 1066, § 271. Section 5890 defines the rights of a holder in due course thus:

"A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon."

Section 5891 provides that:
"In the hands of any holder other than a

The court also instructed the jury as to what constituted a notice of an infirmity in an instrument in accordance with section 5889, L. O. L., and charged as follows:

"If you find that the plaintiff is a holder in due course, within the meaning of the law as I have given it to you, then I instruct you that he holds the note sued on free from any defect of title of prior parties, and free from defenses available to the defendant as against any other parties to the instrument, and that the plaintiff may enforce payment of the instrument against the defendant for the amount thereof."

The instructions as to the plaintiff being a purchaser of the note in good faith were based upon the provision that if "the evidence shows that said note was assigned to him in good faith for a valuable consideration before the maturity of the note," the jury could so find. The charge was in accordance with the sections of the Code above mentioned.

[3] The main contentions on behalf of defendant in regard to the charge to the jury to which exceptions were saved are that the issues made by the pleadings did not warrant the submission of the question of whether the plaintiff was a holder in due course of the note in suit, that the proof showed that the note was given to W. E. Davidson & Co., a fictitious person, and that it did not appear that defendant knew that such name was that of a fictitious or nonexisting person, but that the contrary was shown. The basis for this claim is that it was intended by Mr. McCrow, the maker of the note, to make the same payable to W. E. Davidson & Co., who was the owner of 15 shares of stock in the Pacific States Fire Insurance Company of Portland, Or., which shares it was proposed to sell to defendant; that as W. E. Davidson & Co., the indorser of the note to plaintiff, did not at that time own any such shares of stock, therefore W. E. Davidson & Co. was not the person defendant intended to make the note payable to; that the title to the in

or any one; and that the note was not a val-, plaintiff in purchasing the note was fully id one even in the hands of a holder in due course. Section 5842, L. O. L., declares in part:

contested, and that what was paid therefor and all the circumstances relating thereto were explained to the jury. Plaintiff ap peared as a witness in the case, but it is not shown that his evidence in full is contained in the bill of exceptions. In the absence of a showing in the record that there was no evidence upon which to predicate the instructions complained of, it must be presumed that such testimony was introduced. Error will not be presumed.

[7] Upon the trial Garnet McCrow, son of defendant, appeared as a witness. He was asked if he had a conversation with Mr. Keyt after the time of the execution of the note, and he answered in the affirmative, stating that he thought it was on April 12, 1915, at his home. To the question, "State to the court now what the conversation was," counsel for plaintiff objected as incompetent,

after the transaction was closed. Thereupon counsel for defendant stated:

The court declined to instruct as to the law concerning a fictitious person, for the reason that W. E. Davidson appeared as a witness and testified that he indorsed the note in the name of W. E. Davidson & Co., in which he did business. As there was no contradiction of that evidence, the court held that the law applicable to a fictitious person was not pertinent to the case. The trial court was correct in this conclusion. The fact that W. E. Davidson & Co. did not own stock in the Pacific States Fire Insurance Company was a circumstance to be taken into consideration in the matter of the al-immaterial, and irrelevant, and a matter leged false representations; but such fact would not constitute W. E. Davidson & Co. a fictitious or nonexisting person. If A. executes a negotiable promissory note to his neighbor B. in payment for a band of cattle agreed to be sold to A. which A. is led to believe B. owns, and if it should be found that in fact B. did not own the cattle, that would not make B. a fictitious or nonexisting person. It does not appear that the note in question was intended to be given to a fictitious person. The nonownership of the block of stock by W. E. Davidson & Co. was a circumstance, in regard to which defendant had the right to and did introduce evidence as bearing upon the question of the defective ness of the title to the note, but it did not involve the law as to a fictitious or nonexisting person. There was no error in the court's so ruling.

[4] By executing a promissory note, the maker engages to pay the amount therein named to the payee or order, if it be payable to a particular person or order. By the very act of engaging to pay to a particular payee he acknowledges his capacity to receive the money, and also his capacity to order it to be paid to another. Section 5893, L. O. L.

[5, 6] Objection and exception to the instruction given to the jury is also predicated upon a want of evidence tending to show that defendant was a bona fide purchaser of the note for value. All the testimony is not contained in the record. What is disclosed by the bill of exceptions, in the light of the oral arguments of counsel, indicates that the question of the good faith of the

"If the court please, it is like this: They are claiming a W. E. Davidson & Co. was the owner of this note, and Mr. Keyt was trying to arrange a disposal of that note to Mr. McCrow. That is what we wish to show. This, of course, occurred the day before Hill claims to have got the note."

*

The court sustained the objection, to which an exception was saved. The record does not disclose what the answer of the witness would have been had he answered. The offer is a general statement of the fact that it was expected to show, but it does not appear whether the evidence of the witness would prove such fact or not. See Columbia Realty Investment Co. v. Alameda Land Co., 168 Pac. 440. We cannot say from the record that there was any material evidence excluded, or that there was any prejudicial error.

The other assignments of error are based upon the request of counsel for the defendant to give instructions appropriate to defendant's position that W. E. Davidson & Co. was a fictitious person, which has already been referred to. For the reasons suggested the requests, which were not covered in substance by the charge to the jury, were properly refused. The principal question in the case was one of fact for the jury. It is not claimed that as a matter of law the charge to the jury was incorrect.

Finding no error in the record, the judgment of the lower court is affirmed.

MOORE, BENSON, and McCAMANT, JJ., concur.

(87 Or. 256)

GRIMES v. CITY OF SEASIDE et al. (Supreme Court of Oregon. Jan. 29, 1918.) 1. MUNICIPAL CORPORATIONS 410(2)

STREET IMPROVEMENTS-JURISDICTION. Where plaintiffs deeded land to the public as a highway and the dedication was accepted by the county court, and they later deeded an extension on condition that the county road should be vacated, and stood by without objection while the city improved the street, the city had jurisdiction to assess on the abutting

land the cost of improving the street as a city

and not a county road.

[city of Seaside, adopted at a special election held February 28, 1912, will be made, nor will the proceedings undertaken by the make the improvement be alluded to, since council of that municipality, to initiate and it is conceded that the clauses of the organic law of that city and of the ordinances and resolutions enacted and adopted pursuant thereto were strictly obeyed, except in one instance hereinafter mentioned.

of the city of Seaside, which was received Broadway street is represented on the map

2. MUNICIPAL CORPORATIONS 330(4)-in evidence, as commencing on the east at STREET IMPROVEMENTS SPECIFICATIONS O'Hanna creek, thence west crossing the PATENTED ARTICLE. Necanicum river to the Pacific Ocean. The highway immediately east of the Necanicum river and extending northerly and southerly and nearly parallel therewith is designated as Seventh street, which has been held to be a county road. Cole v. Seaside, 80 Or. 73, 156 Pac. 569.

The city does not, by specifying patented paving, make an illegal contract, where the owner of the patent offers to permit its use on reasonable terms by any other person. 3. MUNICIPAL CORPORATIONS

STREET IMPROVEMENTS
SUFFICIENCY.

483(1) LIEN DOCKETS

Where the lien docket showed the names of persons, the description of the land and the The evidence shows that E. M. Grimes, amount of the assessment and the manner and C. C. Grimes, and S. K. Stanley and the wife time for its payment, it was sufficient, although it did not expressly state that the persons named of each, respectively, on June 29, 1892, exewere severally the owners of the real property, cuted to the public a deed conveying as a nor that the sums named after the description highway a strip of land 30 feet wide, being of land were the amounts respectively imposed 15 feet on each side of a center line, beginupon the lands described. 4. MUNICIPAL CORPORATIONS 559-STREET ning at a point in the middle of the county IMPROVEMENTS-LIEN-FORECLOSURE.

Under Seaside Charter, empowering the city to sue for the cost of improvement and to have a lien therefor decreed on the premises, the city was authorized to have a foreclosure of a lien of a special assessment for paving street. Department 2. Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by G. M. Grimes against the City of Seaside and others. From a decree for defendants, plaintiff appeals. Affirmed.

road (Seventh street) opposite the middle of the east end of the bridge across Necanicum river; thence west to the middle of the east end of such bridge; thence crossing the river to a post on the west bank thereof about 80 feet north of the west end of the bridge; thence west 200 feet; thence north 100 feet, more or less, to the intersection of the middle of Pine street extended eastward; and thence westward along the latter street to low-tide line of the Pacific Ocean. Such conveyance was made upon condition that Clatsop couhty would, within a specified time, build a substantial bridge across the Necanicum river on the designated line.

This is a suit by G. M. Grimes against the city of Seaside, a municipal corporation, and G. E. Shaver, its then marshal, to annul a contract for the paving of a part of Broadway street, formally known as Bridge street, C. A. McGuire and his wife, on July 5, to enjoin proceedings for the collection of a 1892, also executed to the public a deed to a delinquent assessment, and to cancel the strip of land 15 feet in width bordering upon docket of city liens. From a decree declar- Broadway street, but as this tract is situate ing the assessment valid, the lien thereof sub-east of the Necanicum river, no attention sisting, foreclosing such incumbrance and directing a sale of the land benefited by the improvement, the plaintiff appeals.

H. H. Riddell, of Portland (H. Daniel, of Portland, on the brief), for appellant. Victor J. Miller, of Seaside, and A. C. Fulton, of Astoria (G. C. & A. C. Fulton, of Astoria, on the brief), for respondents.

need to be paid to such conveyance. The 30foot strip of land described in the deed executed by E. M. Grimes and others to the public was surveyed June 8, 1893, as appears from copy of the field notes and a blueprint of the map thereof, which show that the middle line of the bridge across the Necanicum and for a distance of about 150 feet from the west bank of that stream was run south 83° 50' west, thence west 200 feet; thence north 139 feet to Pine street; and thence west along that street to the Pacific Ocean.

MOORE, J. It is contended that the municipality was without jurisdiction to make the improvement, or to levy a special assessment for any part of the cost thereof upon The records of the county court of Clatadjacent land only because the highway un- sop county show that on July 6, 1892, a firm dertaken to be benefited is a county road of contractors offered to build a bridge across and subject to the control of the county that river for the sum of $1,630, which bid court of Clatsop county, Or. No reference was accepted, and it is conceded that the to any of the provisions of the charter of the structure was thereafter completed.

By reason of the uncertainty of the point any contractors having adequate machinery of beginning of the highway at Seventh to use its patent right and trade-mark upon street, a resurvey of the line west thereof equal conditions, which authority is of simiwas completed April 20, 1905. Field notes lar import as set forth in the case of Johns and a map of the survey were filed in the v. City of Pendleton, 66 Or. 182, 133 Pac. 817, office of the county clerk six days thereafter. 134 Pac. 312, 46 L. R. A.. (N. S.) 990, Ann. A blueprint of that map was received in evi- Cas. 1915B, 454. Thereafter plans and specidence and from an examination of such du- fications of the proposed improvement were plicate the course from the beginning point duly made and filed, and notice published is indicated as N. 89° 58' west to the east that the contract would be let to the lowest end of the bridge on the Necanicum river; responsible bidder, and at the time so desigthence N. 77° 30′ W. 456.12 feet; thence N. nated the Warren Construction Company, a 89° 29′ W. 146.4 feet to the former line which different corporation from that of Warren extending north intersected Pine street. The Bros. Company, being the lowest bidder for county court on May 6, 1909, ordered that furnishing the material and performing the the dedication and plat of such survey be work, and possessing proper facilities, was recorded, and that the bridge be changed as awarded the contract. soon as possible.

case involving similar facts, that no further elucidation is deemed essential or will be made, except merely to refer to the cases of Sherrett v. Portland, 75 Or. 449, 147 Pac. 382, and Temple v. Portland, 77 Or. 559, 151 Pac. 724, where it was held that there can be no valid objection made to the specification of a patented pavement, if the patentee offers to all bidders alike the right to make use of the protected article upon reasonable terms.

[2] It is maintained that prescribing in The plaintiff, G. M. Grimes, his wife, and the ordinance and specifications the use of others, on June 1, 1908, executed convey- a patented article, thereby excluded comances, dedicating an extension of Bridge petition and hence the contract is void as street west of the Necanicum, upon condi- creating a monopoly. This question is so comtion, however, that the county road should pletely answered by Mr. Chief Justice Mcbe vacated. It was the purpose of these | Bride in Johns v. City of Pendleton, supra, a grants to give to the public a right to the use of Broadway street, as indicated on the plat of Seaside, extending west of the stream to the Pacific Ocean. An examination of the courses noted on the blueprint, evidencing the resurvey, discloses that commencing at the west end of the bridge the line extends northwesterly, while the street as dedicated runs west, and that one tract of the plaintiff's land which was assessed for the improvement lies south and two other parcels are situate north of Broadway, which street in front of his premises that border thereon is located wholly south of the line of the highway as resurveyed April 20, 1905, so that no part of the improvement abutting upon his premises was made upon the county road. [1] Whether such highway was ever legal-side declares: ly adopted or vacated is not necessary to a decision herein, for the plaintiff knew that Broadway street, which was widened by his consent, was being improved, and until the work was fully completed he never applied to the court to prevent the betterment of his land. We conclude therefore, that the city of Seaside had jurisdiction to assess upon the abutting land the cost of improving Broadway street west of the Necanicum river, and that this street is not a county road.

By resolution of the common council of the city of Seaside, it was determined to grade and improve Broadway street with "Gravel Bitulithic" pavement, making the necessary artificial stone curbs on each side, installing catch-basins and providing for surface drainage. Warren Bros. Company, a corporation, the owners of the patent right for mixing and using bitumen and crushed rock or gravel, according to a prescribed formula for road building and surfacing, and also the owner of the copyright name "Gravel Bitulithic," mailed to the proper officer of Seaside a "license agreement," permitting

It is argued that the entry of the assessment for the improvement of the street in the Docket of City Liens was insufficient to create an incumbrance upon the plaintiff's land, and, this being so, no authority existed for decreeing a foreclosure of the alleged claim. Section 42 of the organic law of Sea

"When a special assessment shall be confirmed, the auditor and police judge shall ining the date of confirmation. When any special dorse a certificate thereof upon the roll, showassessment shall be confirmed by the council, it shall be final and conclusive. All special assessments from the date of confirmation thereof constitute a lien upon the respective lots or parcels of land assessed, and shall also be a charge against the person to whom assessed until paid. Upon the confirmation of such assessment it shall be the duty of the auditor and police judge to enter a statement thereof in the Docket of City Liens."

Section 43 of the charter defines such dock

et and prescribes that there shall be entered therein

"the following matters in relation to assessments for the improvement of streets. 1. The name of the owner thereof, or that the owner is unknown. 2. The number or letter of the lot assessed and the number or letter of the block and the town or addition in which it is situated, or, if a tract of land, a description of the tract of land. 3. The sum assessed upon such lot or tract of land and the date of entry. 4. The time and manner in which the assessment is to be paid."

A copy of that record was received in evidence, and as far as material herein, reads:

*

"Lien Docket Town of Seaside. Assessment The trial court was thus clothed with amof Bitulithic Pavement on Broadway West ple authority to declare that the lien subsist1,716.6 ft. Street Assessment No. 15 due and ed, to order a foreclosure thereof, and to dipayable the 29th day of Sept. 1914, * * G. M. Grimes. Beginning at the intersection rect a sale of the land. It follows that the of the north line of Broadway with the east line decree should be affirmed; and it is so orof Third street; thence east 176.47 feet to the dered. west line of Fourth street; thence north 86.94 feet; thence west to the east line of Third street; thence south 86.84 feet to the place of beginning, $798.82."

Two other tracts of land are assessed to him in the same manner, describing the premises with equal particularity and imposing a charge on each parcel respectively of $867.35 and $20.60, amounting to $1,686.77. A certificate appended to the docket states:

"That the above and foregoing assessment roll No. 15 was accepted and confirmed by Ordinance No. 212, duly passed and approved on the 29th day of September, 1914.

"[Signed] J. L. Berry,

"Auditor and Police Judge."

[3] It is argued that this record does not state the name of the owner of any parcel of land therein described, nor the sum assessed upon any lot or tract, nor the time or manner in which the assessment was to be paid. The lien docket does not in express terms declare that the names of the persons appearing at the left of the pages thereon are severally the owners of the real property so described, nor state that the sums of money severally placed at the right of the pages after each description of land were the amounts imposed upon the premises. From the title of that part of the book, as hereinbefore set forth, and from the excerpts made therefrom, these facts are fairly inferable from such record. Though the undertaking to improve Broadway street was to create a lien upon the land benefited, and the proceeding was in invitum, all the requirements that could have been of any advantage to the persons to be charged with the assessment were sufficiently complied with. Hamilton, Special Assess. § 710; Schweisau v. Mahon, 110 Cal. 543, 42 Pac. 1065.

[4] It is insisted that the charter does not authorize a foreclosure of such lien. Section 45 of the municipal organic law contains clauses as follows:

MCBRIDE, C. J., and McCAMANT and BEAN, JJ., concur.

(89 Or. 53)

MARSHALL et al. v. GUSTIN. (Supreme Court of Oregon. Jan. 22, 1918.) 1. APPEAL AND ERROR 232(11⁄2)—MATTERS REVIEWABLE-DEMURRER-GROUNDS.

ning of limitations does not raise such quesA demurrer on grounds other than the runtion on appeal.

2. CANCELLATION OF INSTRUMENTS 37(1) — DEMURRER-EQUITABLE JURISDICTION.

Where it appears inferentially that defendant was holding land as a guardian when she her at an inadequate price, a complaint was not fraudulently prevailed upon plaintiffs to sell to demurrable as not calling for equitable jurisdiction, although the court might not be able to grant the specific relief prayed for. 3. GUARDIAN AND WARD 123 RECOVERY OF PROPERTY-EQUITY OR LAW-INCONSISTENT REMEDIES.

Where defendant was appointed guardian but not in Washington as to land there, and she of plaintiffs and of personal property in Oregon, purchased such land from them fraudulently at an inadequate price, equity had no jurisdiction of an action for the difference between the price received and the value of the land, it be affirm the transaction and sue for damages or ing necessary in such case that plaintiffs either repudiate the bargain and call upon equity to place them in statu quo, but both remedies cannot be had in one action. Bean, J., dissenting.

Department 1. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge.

Suit in equity by George Amos Marshall and Lavina A. Marshall against Nellie Gustin. Decree for plaintiffs, and defendant appeals. Reversed and dismissed, without prejudice.

This is a suit in equity. The substance of the complaint is that the plaintiffs were two of the eight children of C. A. Marshall, who died intestate, November 20, 1905, leaving to his heirs, among other property, 75 acres of land in Clarke county, Wash.; that the defendant, who is a sister of decedent, was the duly appointed guardian of the persons and estates of the minor heirs, including plaintiffs, and, taking advantage of their youth and inexperience, wrongfully and falsely represented to plaintiff George A. Marshall that his undivided one-eighth of the land was worth not to exceed $170, when in truth it was worth $1,000, and by reason of such false representation obtained from him a deed thereto for the consideration of $170; that in like manner she secured from Lavina

"The city of Seaside shall have power to bring suit in the circuit court of the state of Oregon for Clatsop county against the owner or owners of lot or lots, block or blocks, parcel or parcels of land upon which the cost of such improvements or repairs might or could have been charged or imposed, and which were benefited thereby. * In any such suit so instituted all persons whose property is, or would be, so liable for the payment of any such proportion of the assessment aforesaid, shall be joined as parties defendant in one action, and the judgment rendered therein shall be a several judgment in rem against each of said lots or parcels of land owned by each of the several defendants for its proportion of the cost of the improvement and costs and disbursements, and the lien therefor shall be decreed upon the premises. The general laws of the state of Oregon governing suits in equity, service of summons, and other process, shall apply to any such suit." A. Marshall a deed for his undivided one