her husband, Northern Life Insurance Company, | "And we find that remainder of said lot not damaged by reason of the taking of said described real property." fected, the act of the Legislature of 1915 relating to the abstracts has gone into effect. Laws 1915, p. 300. It provides that in all cases where no testimony is sent up with the record, or in which the statement of facts does not exceed 100 pages of double space typewritten evidence, no abstract of record shall be required. The present case falls within the exception, and the failure to file an abstract, or the filing of one defective in form, is in such cases no longer a ground for dismissing an appeal. This provision of the statute we think is applicable to the present appeal. The Legislature may not of The verdict was returned on July 10, 1913, and on the same day a judgment in condemnation was entered in accordance with course pass retroactive laws, prescribing penthe verdict to become operative on the payment to the appellants, or into the registry of the court, of the sum awarded by the jury. The appellants accepted the award of the jury without further contest, and later on the sum awarded was paid. In July, 1914, nearly one year after the verdict had been rendered, the corporation counsel filed a petition with the trial court seeking a modification of the verdict and judgment. In the petition it is alleged that in the verdict and judgment certain language was used by inadvertence and mistake; that the verdict instead of finding that the sum awarded included "the cost of readjusting or moving the building, standing in whole or in part upon said land, to or upon the part of the land remaining, together with the depreciation in the market value of said building by reason of said readjustment or moving," should have found that it included the cost of taking the buildings, trees, and shrubbery, standing in whole or in part upon said land, and that the remainder of said lots is not damaged by reason of the taking of said described real property." On the presentation of the petition the court granted the same ex parte, modifying the judgment as requested. Later on, however, on the motion of the appellants, it set aside the ex parte order, and set the matter down for a further hearing. On the subsequent hearing it again granted the prayer of the petition, and modified the judgment accordingly. This appeal is from the order so entered. ** laties for acts and omissions which were lawful when committed or omitted, but it may excuse delinquencies in matters of practice in pending proceedings past as well as future. When the statute relates purely to remedies and will not work hardship or injustice, but will, on the other hand, better protect and preserve the rights of the parties, it will be given effect, even though the statute existing when the act of delinquency was committed might call for a different remedy. The delinquency complained of in the case at bar in no way affects the merits of the controversy, it was a mere incident of procedure, and since the legislature has said in effect that it is no longer a cause for denying to a party the right to have his cause heard on its merits, the court will give effect to the act, even as to causes pending when the act took effect. [2] The fourth ground of the motion is also without merit. The appellant contends that the order appealed from is void on its face, being one beyond the power of the court to make. This will appear, if it appears at all, from a transcript of the record. No bill of exceptions or statement of facts is necessary to show it. We conclude, therefore, that the motion to dismiss is not well taken. [3] On the merits of the controversy we are clear that the court was in error. The fact that the verdict does not conform to the evidence, or is rendered through mistake and inadvertence, is a cause for setting aside the verdict, or, if not discovered until after judg ment is entered, is a cause for setting aside The city moves to dismiss the appeal, bas- both the verdict and judgment, but it does ing its motion upon the grounds: (1) That not give the court power to correct the verthe appellants' abstract was not served at dict. The verdict is the jury's, not the the time of the serving of their opening brief, court's, and the court's power in such cases is nor within the time they were required to limited to seeing that the jury return a verfile and serve such a brief; (2) that the ab- dict correct in form and substance. It may stract filed does not comply with the statute not, after the verdict has been returned and nor the rules of the court; (3) that the state- the jury discharged, change it, over the obment of the case in the appellants' brief does jection of either of the parties, in matters of not refer to the abstract; and (4) that there substance. The change here made by the has been no bill of exceptions or statement court was such a change. Under the verdict of facts, filed and certified in the cause by of the jury the appellants remained the ownthe appellants, nor has any attempt beeners of the building standing on the land conmade to comply with the requirements of the demned. They were at liberty to remove it statute in regard thereto. and readjust it on the remaining portion of [1] Since the appeal in this cause was per- their property, or to dispose of it in any other manner they should deem fit so long as they removed it from the property condemned. The change made by the court takes the building away from the appellants and vests title to it in the city. This is as much of a change in substance as it would have been had the court, under the same circumstances, ordered a reduction in the amount of the award made by the jury. 3. CARRIERS 218-CARRIAGE OF LIVE STOCK -LIMITATION OF LIABILITY-CONSTRUCTION. A contract of shipment of live stock, agreeing that the value of the live stock should not exceed $30 per head, and that in no event should the carrier's liability exceed $1,000, permits the shipper to recover actual damage up to the amount named, and not merely the proportion of the amount named which the damage bears to the actual value of the stock. Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. [Ed. Note.-For other cases, see Carriers, Dig.218.] The city in its brief makes the statement that the condemnation proceedings involved numerous separate tracts of property, in some of which it was necessary to take the buildings thereon and in others to permit their removal and readjustment; that forms of verdicts were printed and prepared for the use of the jury suitable for each condi- Department 2. Appeal from Superior tion, and that in the appellants' case a wrong Court, King County; A. W. Fraser, Judge. verdict was by mistake given the jury. But Action by Bertrand P. Castner against the if the record showed these facts, we cannot | Oregon-Washington Railroad & Navigation think the case would be altered. It is not Company. From a judgment for plaintiff, claimed that the jury knew that such a mis- defendant appeals. Affirmed. take had been committed, and it is not to be presumed that they did not measure the value of the property taken in accordance with the form of the verdict submitted to them. At most the error would amount to a mistrial of the issues between the city and the appellants, requiring them to submit the question to another jury. It could not give the court authority to direct that a verdict be recorded as the verdict of the jury, different in substance from that which the jury returned. The order appealed from is reversed, and the cause remanded, with instructions to deny the city's petition to annul the judgment in so far as it affects the property of the appellants. MOUNT, HOLCOMB, BAUSMAN, CHADWICK, and PARKER, JJ., concur. Bogle, Graves, Merritt & Bogle, of Seattle, and Carroll A. Gordon, of Tacoma, for appellant. Sherwood & Mansfield, of Everett, for respondent. MAIN, J. This action was brought to recover damages for injuries to cattle which on December 17, 1913, were shipped from Gilberts, Ill., to Monroe, Wash. The cattle thus shipped consisted of one carload of cows, which in transit passed over the lines of three forwarding carriers, and came into the possession of the Oregon-Washington Railroad & Navigation Company at Huntington, Or. From there the car was moved by that company to Spokane, Wash., where it was delivered to the Great Northern Railway Company for transportation to Monroe. The injury complained of is said to have occurred as a result of the careless and negligent switching of the car in the defendant's yards at Spokane. After the drover who accom CASTNER v. OREGON-WASHINGTON R. panied the shipment claimed that the cows & NAV. CO. (No. 12910.) (Supreme Court of Washington. Feb. 21, 1916.) were injured during the switching at Spokane, they were unloaded there. After the unloading, at the instance of the railroad company, two veterinary surgeons examined them as to the nature and extent of their injuries. They were subsequently reloaded and conveyed to Monroe. The contract under which the shipment was made contained a provision that unless claims for loss or damage were presented within 10 days from the date of the unloading of the stock at destination, and before such stock had been mingled with other stock, all claims would be waived, and also a provision which limited the liability of the carrier for loss or damage. The cause was tried to the court and a jury, and a verdict was returned in favor of the plaintiff in the sum of $240. Motion for judgment notwithstanding the verdict being overruled, judg ment was entered upon the verdict. The defendant appeals. The record presents two material questions: First, can the respondent recover notwithstanding the fact that he failed to give the notice required by the contract? and, second, what was the extent of the carrier's liability? [1, 2] I. It is not claimed in this case that the notice provided for in the contract was given in substance or at all. A carrier may by stipulation in the contract of shipment provide that notice of any claim for loss or damage be given the shipper within a reasonable and prescribed time, and in a certain manner, as a condition precedent to liability for loss. Henry v. C., M. & P. S. R. Co., 84 Wash. 633, 147 Pac. 425. The purpose of such notice is to enable the carrier, when a claim of loss for damage is presented, to investigate the nature and extent of the injury to the article which is the subject of the contract of carriage. Where the carrier has made an examination of the nature and extent of the injury claimed, the purpose of requiring notice has been accomplished, and the same protection has been afforded as though the notice had been given. Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132. In this case, when complaint was made that the cattle had been injured, the railroad company caused two veterinary surgeons to examine them, and thus determine the nature and extent of the injuries, if any. Having availed itself of the opportunity thus afforded to make an examination, it has received the protection which was the purpose of the notice, to the same extent as though notice had been in fact given. The case of Henry v. C., M. & P. S. R. Co., supra, is easily distinguishable from this, so far as the question of notice may be involved. In that case no notice was given. Neither did the carrier have any opportunity to make an investigation as to the nature and extent of the injury which it was claimed the stock had received. Here, while notice was not given, the carrier had the same opportunity to make the investigation as it would have had if the notice had been given, and made an investigation as to the nature and extent of the injuries claimed. The case of Kidwell v. Oregon Short Line R. Co., 208 Fed. 1, 125 C. C. A. 313, is not controlling. There the person in charge of the stock told a number of agents along the line that he intended to put in a claim for damages because the cattle had been handled badly. No claim was presented as required by the contract. Neither did the carrier have opportunity to examine the cattle as to the nature and extent of the injuries claimed, as in this case. [3] II. Shipment in this case was made under what is known as a limited liability live stock contract. This contract provided that it was expressly agreed that the value of the live stock to be transported should not exceed $30 per head, and that "in no event shall the carrier's liability exceed $1,000." The appellant construes the contract as fixing absolutely the value of the cows at $30 per head, and that if any cow in the shipment was injured or damaged, but the injury or damage did not entirely destroy the value of such cow, then the amount of recovery would be such proportion of the agreed value of $30 as the actual damage bears to the actual value. The effect of this construction would be that if the actual value of a particular cow were $100, and the extent of the damage were $50, the amount of recovery would be limited to $15. The respondent construes the contract as fixing the measure or extent of the carrier's liability. According to this view, if the cow were worth $100, and the damage were $50, the amount of recovery would be $30. Contracts containing provisions similar to this one have been before the courts for construction, and the view is generally entertained that such stipulations are to be construed as permitting recovery for damage actually done, the amount recoverable not to exceed the sum stated in the contract. Nelson v. Great Nor. Ry. Co., 28 Mont. 297, 72 Pac. 642; U. S. Express Co. v. Joyce (Ind. Sup.) 72 N. E. 865; Ill. Cent. R. Co. v. Wilson & Co. (Tenn.) 176 S. W. 1036; Huguelet v. Warfield, 84 S. C. 87, 65 S. E. 985. In 4 R. C. L. p. 793, the rule upon this question is stated thus: "Where it is provided in the bill of lading that the amount recoverable in case of loss or damage' shall not exceed a specified sum, the question arises as to the amount recoverable where the article is not lost, but merely injured. The parties may, of course, by express provision to that effect, stipulate that in case of partial loss the damages shall be proportioned on the basis of the sum named as the maximum limit, and effect will be given to such a stipulation. But, where this is not done, the question becomes one of construction, and very generally the view is entertained that such stipulations are to be construed as permitting recovery for the damage actually done, the amount recoverable however, not to exceed that agreed upon as compensation for a total loss." Some other questions are raised by the appellant's brief; and, while they have all been considered, they do not possess that degree of merit which would call for their detailed discussion. The judgment will be affirmed. MORRIS, C. J., and PARKER, HOLCOMB, and FULLERTON, JJ., concur. SPADY V. SPADY. (Supreme Court of Oregon. Feb. 15, 1916.) DIVORCE 34-ACTIONS-RIGHT TO. Where plaintiff married defendant merely to obtain some one to care for his children by a former marriage, and plaintiff married to obtain a home and a share in plaintiff's property, and the two disagreed, defendant being unable to reside amicably with the children, neither is entitled to divorce. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 104, 105; Dec. Dig. 34.] Department 1. Appeal from Circuit Court, Multnomah County; George N. Davis, Judge. Suit by John Spady against Kathrine Spady, who filed a cross-bill. From a decree for defendant, plaintiff appeals. Modified, and suit dismissed. Harold V. Newlin and W. A. Burke, both of Portland, for appellant. J. B. Ofner, of Portland, for respondent. PER CURIAM. The plaintiff's former wife died, leaving to his care seven children, ranging in age from 2 to 16 years. About 7 months after her death he married the defendant in this suit July 17, 1907. She herself was a widow, whose husband had died in Russia. She had come to America to live with her son and his family in Portland, Or. She states that the plaintiff told her about his children, but although they all lived in his home in Portland, she never went there nor saw any of them before her marriage. It appears in evidence that as an inducement to the marriage the plaintiff paid the defendant's son $100 to cover her fare from Europe to this country. The plaintiff testifies that he married the defendant so he could have some one to take care of his children. Both freely admit that if it were not for the children they could get along pleasantly as husband and wife. The plaintiff is a scavenger by occupation and is away from home most of every day. The defendant did not get along well with the children. It appears in testimony, although it is not pleaded, that after a few years' living with him she sued him for a divorce and was unsuccessful, her suit being dismissed. It is disclosed that about 10 days after that disposition of the former case she went back to her husband's home, from which she had been absent for some months, and professed a willingness to resume her marriage duties, but demanded that he go and bring back the personal belongings she had taken away. He expressed his willingness to receive her again as his wife, but refused to go after her things, saying in substance that she took them away and could return them. The overtures ended at this point and she went away again. After she had been absent from his home all told about 2 years, the plaintiff instituted this suit, stating in general terms that the defendant had continually treated him in a cruel and inhuman manner, and scolded, cursed, and abused the plaintiff, and more particularly his children by his former marriage, all of which has rendered his life burdensome. He also alleges in substance that the defendant had deserted him for a period of 2 years prior to the commencement of this suit. The defendant returned to the charge, denying all the plaintiff's statements, except the marriage, the allegation about his children by his former marriage, and the ownership of his property. She charges him with inflicting personal indignities rendering her life a burden in that he threatened to kill her, in consequence of which she was compelled to seek shelter at the home of her son; and that although she returned to his home about January 14, 1913, he set upon her and summarily ejected her, all the while cursing and reviling her and telling her that if she ever dared return he would surely kill her, whereupon she returned to her son, upon whose charity she has even since then subsisted. What seems to be the most important part of her crosspersonal property and her demand for alibill is her allegation about his realty and trial resulted in a decree in favor of the demony. Issue is joined by the reply, and a fendant, from which the plaintiff appeals. Nei timony, although it has been carefully read. The decree of the circuit court will be thus modified. One owning land abutting on a stream conveyed portions by metes and bounds, but giving calls for the bank of the stream. The property had been previously surveyed, and iron pipes had been driven into the ground to mark the survey some distance from the stream bank. er the conveyance the land lying between the pipes and the bank of the stream was quitclaimed to defendants. L. O. L. § 878, declares that, when permanent and visible or ascertained For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Aft boundaries or monuments are inconsistent with measurements, the boundaries or monuments are paramount. Held, that though, if the lines were run to the pipes planted by the grantor, the number of acres purporting to have been conveyed would be included, nevertheless the stream was a monument which will govern the grant; the grantor's undisclosed intent to convey in title to the bank of the stream not affecting the rights of the parties. [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. 3.] Department No. 1. Appeal from Circuit Court, Lane County; L. T. Harris, Judge. Action by David W. Hennigan against A. C. Mathews and wife. From a decree for plaintiff, defendants appeal. Affirmed. R. S. Hamilton, of Eugene (Foster & Hamilton, of Eugene, on the brief), for appellants. Jay L. Lewis, of Corvallis (G. F. Skipworth, of Eugene, on the brief), for respondent. BURNETT, J. The common grantor under whom both parties claim was Maud L. Hannum. It is conceded that she owned land described in her deed as follows: "Beginning at the southwest corner of lot one (1), county survey No. 609, in center of county road in south line of the L. Davis donation land claim No. 42, in Tp. 17 S., R. 4 W., Willamette meridian; thence running N. 8 degrees and 40 minutes west 3.95 chains; thence east 10.47 chains to the Willamette river; thence up said river south 33 degrees E. 4.73 chains to the south line of said claim; thence N. 89 degrees 40 minutes W. 12.44 chains, to the place of beginningcontaining 4% acres of land, more or less, in Lane county, Oregon." "Beginning at a point in the center of county road, 3.95 chains N. 8 degrees and 40 minutes west from the S. W. corner of lot one (1) of county survey No. 609 on south boundary of donation land claim No. 42, Tp. 17 S., R. four (4) west, Willamette meridian; thence N. 8 degrees and 40 minutes W. 3.08 chains; thence east 10.52 chains to Willamette river; thence S. 7 degrees and 45 minutes east 3.062 chains along said river; thence west 10.47 chains to the place of beginning-containing 3.19 acres of land, more or less, in Lane county, Oregon.' the ground were intended by the parties at that time to designate and mark the eastern boundary of the premises conveyed, and that they should control in the present instance. It appears without dispute in the testimony that the plaintiff bought without any notice of the survey or of the pipes, and that he gave a vacant city lot and $5,000 in cash for the premises. The essence of the contention for the defendants is that the pipes constituted monuments, that the north and south boundaries of the plaintiff's land are controlled by them, and that his holding must end with the measured distances as stated in chains and running east from the western boundary of the original tract. It is said in section 878, L. O. L., giving rules for the construction of the descriptive part of conveyances that: "When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount." It is conceded that the common grantor owned to the actual bank of the Willamette river, and not merely to the bluff or upland. The fallacy of the contention for the defendants is that in conveying the two tracts the grantor did not make monuments of the iron pipes. No mention whatever is made of them in her deeds. On the contrary, the monument to which reference is made, and which must control, is the permanent and visible This must object, the Willamette river. prevail over the distance in chains describing the boundaries. The rule cannot be otherwise, for it is well known that the banks of rivers constantly and gradually change by either accretion or avulsion, continually altering the distance from fixed objects on the upland to the river bank. Much is said in argument about making the deed conform to the intent of the parties, and this is true, if it can be done without doing violence to the language used. It appears without dispute that the intent of Hennigan and his immediate grantor was to convey to the bank of the river, and this purpose is consistent with the language of the deed. It is not shown that either of them had any knowledge of the survey, or of the alleged design of Mrs. Hannum to convey only to the bluff. It would create great confusion in titles if some subsequent innocent purchaser for value could be de prived of a considerable portion of his domain by parol proof of an intent existing in the minds of his predecessors in title of which he had no knowledge. The common grantor, seised as she was of the land running to the bank of the river, placed upon record a conveyance which, when fairly construed by the rule of the Code, passed title to realty abutting upon that stream, although the distance she gives does not go to the water. At least, in favor of one who It is said that the iron pipes driven in had no knowledge of her intention, her deed By mesne conveyances the plaintiff succeeded to the fee simple title of the two tracts by the two descriptions last above quoted. Much evidence is given on the part of the defendants that, at the time the common grantor sold the two pieces, a survey was made, and that at the east end of each of the lines running towards the Willamette river a pipe was planted at some distance west of the bank of the stream, but far enough from the western boundary to include the number of acres mentioned. After she had executed the conveyances already noted, Mrs. Hannum quitclaimed to the defendants' predecessor in title the lands lying east of the east end of the boundary lines mentioned in her former deeds down to the bank of the Willamette river. It is through this quitclaim deed that the defendants deraign title, and by it they claim a strip of land lying between the upland and the bank of the river in front of the remainder of the original holding. |