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carry the trade until closed out by the mutual consent of both parties, which plaintiff promised and agreed to do; that thereafter and on February 1, 1904, defendant, on the advice of the plaintiff and for the purpose of protecting such sale, instructed plaintiff to purchase for him 100 bales of July cotton at the market price, placing a stop loss thereon of $1 per bale; that on February 18, 1904, cotton had advanced to $0.1387, and defendant directed plaintiff to close the deal of January 15th, but plaintiff claimed to have closed such deal on February 1st at $0.1399, whereby defendant lost the sum of $60 as profits, less $20 commission; that defendant had demanded of the plaintiff the sum of $40, but it had refused and still refuses to pay the same. For a further and separate defense, and by way of counterclaim to the second cause of action, it is alleged that defendant had advanced to the plaintiff from time to time various sums of money, and there is now a balance due defendant from plaintiff over and above the sum of $55.45, due plain tiff, of $89.30. A reply put in issue the new matter alleged in the answer and a trial was had by the consent of both parties before the court without the intervention of a jury. After hearing the evidence the court made findings of fact and conclusions of law in favor of the plaintiff and entered judgment accordingly. From this judgment the defendant appeals, contending (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in admitting in evidence certain telegrams which passed between the plaintiff and its correspondent in Chicago, concerning the transactions referred to in the complaint; (3) that the court erred in overruling a motion for nonsuit; and (4) that the findings of fact and conclusions of law are not supported by the testimony, and are not separately stated.

H. M. Cake, for appellant. John M. Gearin, for respondent.

BEAN, C. J. (after stating the facts). The contention that the complaint does not state facts sufficient to constitute a cause of action, because the number of pounds of cotton in a bale, or the aggregate number of pounds bought or sold by the plaintiff on defendant's account, or the price per bale, is not stated, comes too late after verdict. The pleadings are framed, and the trial evidently proceeded, on the assumption that a bale of cotton on the exchange and in the market contains 500 pounds. The complaint avers that 100 bales at so much per pound amounted to a certain sum and the answer contains substantially a similar averment. It is alleged in the answer that by plaintiff's closing out the transaction on February 1, 1904, instead of on the 18th of that month, the defendant lost the difference between $0.1399 and $0.1387 per pound on 100 bales, to

wit, $60-a result which could be obtained only by assuming that a bale of cotton contains 500 pounds. In addition to this, a statement of account was rendered to the defendant by the plaintiff in which the transaction between the parties was set out in a similar

manner.

The telegrams offered and admitted in evidence were competent as tending to show that the transaction between plaintiff and defendant contemplated an actual and bona fide sale and purchase of cotton and was not a mere dealing in differences. The plaintiff had a leased wire from Chicago to its office in Portland, by means of which the telegrams were sent direct to its agent and memoranda made of them. When the plaintiff received the order of January 15, 1904, from defendant, to sell 100 bales of July cotton, it immediately wired to its agents, Logan & Bryan, who had offices in Chicago and New York: "Sell 100 July cotton," and when it received the order to buy on February 1st, it wired them: "Buy 100 July cotton market." The telegrams offered were the original memɔranda made at the time, and were competent evidence for the purpose stated.

A contention is made that the pleadings and evidence show that the transactions between plaintiff and defendant were merely dealings in futures or a gambling in differences, and that no actual purchase or sale of a commodity was contemplated, but the understanding was that a settlement was to be made on the differences in the market quotations from day to day until the deal was closed, and therefore the transaction was illegal and void, and will not be enforced by the courts. No such facts are pleaded in the answer, nor was any request made for findings to that effect. The answer and requested findings assume and state that a sale of cotton was made by plaintiff on defendant's account "on the New York Cotton Exchange," and the evidence is all to the effect that the transaction was actual and bona fide. The witnesses for the plaintiff, and there was no contradiction of them, testify that the transactions between plaintiff and defendant were actual and bona fide sales of cotton on the New York Cotton Exchange; that plaintiff had a private wire from its office in Portland to its agents in Chicago, and, when an order was given it to sell or buy, it telegraphed the order to them and they executed it on the exchange, and the price of the execution was wired back to the plaintiff. It therefore appears that the purchase and sale made by the plaintiff on defendant's account was an actual and bona fide transaction on the New York Cotton Exchange and presumably in accordance with its rules and regulations. Such transactions have been uniformly held valid and legal on their face, and not mere wagering contracts or dealing in differences, and the burden of proving that they are invalid, as a

mere cover for differences, is on the party who makes the assertion, and defendant offered no evidence on that subject. Board of Trade v. Christie Grain & Stock Co., 198 U. 8. 236, 25 Sup. 637, 49 L. Ed. 1031; Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed. 1183; Bangs v. Hornick (C. C.) 30 Fed. 97; Henning v. Boyle (C. C.) 112 Fed. 397. We are of the opinion that, under the facts of this case, the court could not declare the transaction to be illegal and void.

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

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

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

(48 Or. 462)

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

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

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Parties, §§ 167, 168.]

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

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Depositions, §§ 72-80.1

3. CANCELLATION OF INSTRUMENTS-FRAUDEVIDENCE-BURDEN OF PROOF.

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

4. SAME-EVIDENCE-SUFFICIENCY.

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

5. SAME-RELIEF-SUFFICIENCY.

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

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, §§ 3338.]

6. SAME CONDITIONS PRECEDENT - RESTORATION OF STATUS OF PARTIES-TENDER.

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

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

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

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

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

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

having been made in pursuance of such agreement, the testimony, as taken and certified to by Holden, was entitled to be read in evidence.

Considering the case on its merits, the testimony shows that, on August 20, 1904, the plaintiff was the owner of 10 acres of land in Marion county, near Chemawa, which on that day he conveyed to the defendant, receiving a deed for 30 acres of land in Lane county which he had never seen, and $125 in money, of which sum the defendant paid Chris Boss, a real estate broker, $25, as his commission for negotiating the sale of plaintiff's land. A few days thereafter the defendant paid the plaintiff $5 for his household goods, tools, hay, etc., taking a receipt therefor. The plaintiff examined the land in Lane county, which had been conveyed to him, and, being dissatisfied therewith, he so informed the defendant, who executed to him' a deed for 7.31 acres of land near the Reform School, on which the plaintiff erected a small cabin, and made other permanent improvements. This suit was thereafter instituted for the purpose indicated, and also to recover the value of the personal property specified, which is alleged to have been reasonably worth the sum of $153.40. Dr. W. A. Cusick, a reputable physician, who has made a study of mental diseases, and treated persons afflicted therewith, testified that he had examined Owings, who is about 48 years old and unmarried, and found him lacking in discretion and understanding; that, in his opinion, the plaintiff had been more or less defective all his life, and, as he grows older, his infirmity will probably become aggravat

a decree rendered as prayed for in the complaint, from which the defendant appeals; his counsel contending that, if the plaintiff was unable to transact business by reason of his alleged infirmity, he should have been represented by a general guardian, or by some person specially appointed for that purpose, and that Wilson was unauthorized to appear for him in the capacity stated or to institute the suit in his behalf, and hence error was committed in overruling the demurrer to the complaint. The complaint was challenged on the ground that it did not state facts sufficient to constitute a cause of suit. The statute permits a defendant to demur to a complaint "when it appears on the face thereof, either-** (2) that the plaintiff has not legal capacity to sue; or * * * (4) that there is a defect of parties plaintiff." B. & C. Comp. § 6S. "The demurrer must specify the grounds of objection to the complaint." Id. § 69. If no objection be taken, the defendant shall be deemed to have waived the same, except only to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of suit or action. Id., § 72. "Ordinarily," says Mr. Justice Wolverton, in Osborn v. Logus, 28 Or. 302, 37 Pac. 456, 38 Pac. 799: "The objection arising from a defect of parties should be taken by demurrer, if it appears from the face of the complaint, otherwise by answer, and if by neither, it is deemed waived." The incapacity of a plaintiff to sue where, as in the case at bar, he is represented by a next friend, who is regarded as a party, within the meaning of the statute relating to the conduct of suits (14 Enc. Pl. & Pr. 1000), is an imperfectioned, resulting in a total breakdown, so that which, if it exists, is apparent on the face of the complaint, and as the demurrer interposed was not based on that ground, the objection now insisted upon was waived. It is maintained by defendant's counsel that an error was committed in overruling their motion to suppress certain depositions. The court, on plaintiff's motion and by consent of the defendant, appointed C. H. Holden, who is stated in the order to be a notary public, as special referee to take, on, behalf of the plaintiff, the testimony of James Young and M. D. Scott. Holden took the testimony, and in the certificate attached to their depositions he wrote after his name the phrase: "Special Referee and U. S. Commissioner for Oregon." It is argued that he was not a notary public, and, for this reason, the evidence should have been excluded. A special referee may be appointed in suits in equity to take the testimony of witnesses, who, as in the case at bar, reside more than 20 miles from the place of holding court. B. & C. Comp. § 827. The parties hereto having stipulated that Holden should be appointed, his selection as special referee was evidently based on his well-known qualification to discharge the duty intrusted to him, and not because he was supposed to have been commissioned a notary public. The selection 87 P.-11

he will ultimately have to be taken care of. In referring to the plaintiff's condition at the time he made the examination, the witness further said: "His appearance was a telltale appearance. There was a progressive emaciation, or at least a wasting away of the physical powers which proclaimed broadcast his imperfect physical health." The plaintiff's counsel,, complying with the statutory permission (B. & C. Comp. § 718, subd. 10). called nonexpert witnesses, who were intimately acquainted with Owings, and who severally expressed an opinion as to his mental condition at the time he executed his deed, giving the reason for the belief so entertained. An examination of the testimony on this branch of the case convinces us that Owings is not non compos mentis, but is and was, August 20, 1904, afflicted with mental weakness which his conversation, general appearance, and conduct betray. He posseses, however, sufficient mental capacity fully to appreciate and understand the nature and effect of all his transactions, and was and is competent to make a binding contract, and to execute a valid deed. Carnagie v. Diven, 31 Or. 366, 49 Pac. 891; Swank v. Swank, 37 Or. 439, 61 Pac. 846; Dean v. Dean, 42 Or. 290, 70 Pac. 1039.

This brings us to a consideration of the

question whether or not Owings, in consequence of his intellectual impairment, was induced by the defendant to enter into a contract, whereby the latter secured an improper advantage by unfair means, which amounts to fraud, deceit, or imposition. Owings, as a witness in his own behalf, testified in effect: That his health having failed while living on the 10 acres referred to, he concluded to sell or trade the premises and go South, thinking the change of climate would be beneficial to him. That, with this idea in view, he came to Salem, August 20, 1904, where he met Chris Boss, a real estate broker, who took him to Turner's office, where the defendant informed him that he owned 30 acres of well-watered garden land in Lane county, which he would exchange for the plaintiff's tract. That a trade was finally consummated by an exchange of deeds, though the witness had never seen the land offered; the defendant paying him the further consideration of $105, and taking a bill of sale of certain personal property. That the plaintiff thereafter went to Lane county, examined the land referred to, and found it rocky, without water, and situated on the side of a mountain. That he immediately returned and notified the defendant of his dissatisfaction, who informed him, for the first time, that he owned 7.31 acres of land near the Reform School which he would exchange for the 30 acres, and threatened that, if he commenced a suit to set aside his deed, he would. prolong the litigation until the expenses of the trial would leave nothing for him. That the witness, hiring a horse and carriage, took the defendant to the land which he offered to trade, and they perfected a bargain in relation thereto, whereby the plaintiff paid on account of the land the sum of $12, and gave the defendant $10 for drawing the deed therefor. That he erected a small house, and made other improvements on the premises. The defendant, as a witness in his own behalf, testified that: The agreement entered into required him to execute deeds for the lands mentioned in Lane and Marion counties, and to pay the further consideration of $130, in exchange for the plaintiff's deed. That, in examining the title to the plaintiff's land, he discovered a defect therein which could only be corrected by securing quitclaim deeds from former owners of the premises, whereupon it was stipulated that the land in Lan county only county only should be conveyed, and that the legal title to the land near the Reform School should be retained until such defect was remedied. The defendant denied that he made any representations to the plaintiff concerning the location or kind of land mentioned in Lane county, telling Owings that he had never seen it, and advising him to examine the premises before he executed his deed; but he declined to do so. He also denied that the plaintiff paid him any sum as a

consideration for the land near the Reform School, or gave him $10 for executing a deed therefor; but admits that Owings paid the livery bill for the horse and carriage used in going to the land. Boss, as the defendant's witness, corroborates Turner's testimony in every particular, relating to the terms of the contract entered into when the exchange of lands was effected. Notwithstanding such confirmatory testimony, we think the inadequacy of the consideration. hereinafter referred to, when considered in connection with the plaintiff's mental weakness, which his physical condition denoted, together with certain facts and circumstances associated with the whole transaction, sufficient to create an inference that the defendant exerted an undue influence over the plaintiff in securing his deed, which prevented him from judging accurately and acting independently in the matter. Archer v. Lapp, 12 Or. 196, 6 Pac. 672. This deduction, which the law directs in such cases, imposed on the defendant the burden of showing that the plaintiff acted knowingly, intentionally, and deliberately, with full knowledge of the nature and effects of his acts, and that his consent to the execution of his deed was not obtained by any advantage taken of his condition (2 Pomeroy, Equity [2 Ed.] § 928), which inference has not, in our opinion, been overcome by the corroborating testimony mentioned.

It conclusively appears that the land conveyed by the plaintiff was, at the time the deed was executed, reasonably worth the sum of $1,200. The court found that the value of the personal property transferred by him to defendant was $50, which conclusion of fact we adopt. The depositions of the witnesses who live near the land in Lane county conveyed to the plaintiff, and who know the character thereof, are to the effect that the premises have been burned over, destroying the timber; that the soil is rocky, the surface too steep to be plowed; and that the land is wholly valueless. A witness for the defendant, however, who had hunted deer on this land, estimated it to be worth from $6 to $10 an acre. In attempting to harmonize this testimony, if it be assumed that this land is worth $6 an acre, the lowest estimate placed thereon by the defendant's witness, the value thereof is $180, though the trial court found it to be reasonably worth only $75. The witnesses who have recently seen the land near the Reform School testified that it is gravelly, subject to overflow, and that about three acres thereof having been plowed, the alluvial soil thereon had been washed away, so that the whole tract was of no greater value than from $15 to $25 an acre, at which latter sum the premises are worth $182.75, though about six years prior to the trial the land had been sold for $60 an acre. The answer admits that the value

of the permanent improvements which the plaintiff placed on the land near the Reform School is $25, so that the entire consideration which he received for his real and personal property and improvements, valued at $1,275, was the land in Lane and Marion counties, of the reasonable value of $180 and $182.75, respectively, and $130 in money, or $495.75. On account of the sum of money so received, the plaintiff transferred personal property worth $50, and made improvements admitted to be of the value of $25, and was required, as a condition precedent to the granting of the relief sought, to pay the further sum of $50, which accounting we approve. When this suit was Instituted the plaintiff's counsel understood from their client that he had executed to the defendant a deed to the land in Lane county when he had only left the deed with him. Based on such misconception, a deed to the land near the Reform School only was tendered before the suit was commenced. At the trial, however, when the fact was ascertained, a deed to the land in Lane county was executed by the plaintiff and tendered. In view of Owings' mental condition and of the reasonable misunderstanding of his counsel resulting from his infirmity, the tender was sufficient.

Believing that the plaintiff is competent to execute to the defendant valid deeds of the real property which he received, and that a reconveyance of the premises will place him in statu quo upon the payment of $50, the decree is affirmed.

(31 Utah, 168)

STATE v. HOWS et al. (Supreme Court of Utah. Oct. 20, 1906.) 1. BURGLARY-INFORMATION-SUFFICIENCY.

Under Rev. St. 1898, § 4334, as amended by Sess. Laws 1905, p. 16, c. 19, making it burglary for any person to break and enter a building with intent to commit a larceny or any other felony, an information charging the breaking and entering a building at night with intent to steal goods, without stating their value, sufficiently charges a burglary in the first degree, as larceny within such section includes both a misdemeanor and a felony, and the words "or any other felony" are equivalent to "or any felony other than that embraced within the larceny." [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Burglary, §§ 64, 65.]

2. CRIMINAL LAW-JEOPARDY.

Where a jury was impaneled and sworn to try accused, and the cause was dismissed after the evidence was all introduced, he was thereby placed in jeopardy, and cannot be tried again for the crime charged in the information, or any other offense included therein.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 316, 328.]

Appeal from District Court, Utah County; J. E. Booth, Judge.

Clyde Hows and William Watson were acquitted of a charge of burglary, and the state appeals. Reversed.

D. D. Houtz, Dist. Atty., for the State.

MCCARTY, C. J. This is an appeal by the state from a judgment rendered by the Fourth Judicial district court in Utah county. It appears from the record that an information was filed in said court charging the defendants jointly with the crime of burglary in the first degree. the first degree. The information, in substance, charged that the defendants, on the 30th day of March, 1906, at the county of Utah, unlawfully, feloniously, during the nighttime of said day, did break and enter into a certain building (describing it), then and there being the property of A. B. Adams, with intent the goods and chattels of said A. B. Adams therein being unlawfully, willfully and feloniously to steal, take, and carry away. The defendants were duly arraigned on the information, and pleaded not guilty. They demanded separate trials, which was granted, and the case against Watson was set for trial for May 21, 1906. The case came on regularly for trial on said date, and, after the evidence was all in, the court refused to submit the case to the jury, and, over the district attorney's objection, discharged the jury sworn to try the case, and dismissed the action. The regularity of the proceedings was not challenged, nor was there any question raised respecting the sufficiency of the evidence. The only question presented by the appeal involves the construction of the statute under which the action was prosecuted.

Section 4334, Rev. St. 1898, so far as material in this case, provides that "every person who, in the nighttime, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, with in

tent to commit larceny or any felony, is guilty of burglary." In 1905 the Legislature amended the sections of the statute defining burglary and housebreaking (Sess. Laws 1905, p. 16, c. 19), and, under the law as amended, we have burglary in the first and second degrees instead of burglary and housebreaking. Before amended, section 4334 made it burglary for a person to break and enter, etc., "with intent to commit larceny or any felony." As amended, the section reads "with intent to commit larceny or any other felony." The only difference in the language of section 4334 as it formerly stood and as it is now amended is the word "other." The trial court held, under the law defining burglary as it exists since the amendment, that the intent in burglary in the first degree must be to commit a felony. And, as the information in this case does not charge an intent to steal goods of the value of $50 or more, it fails to charge a public offense. This was error. The statute uses the general term "larceny," which includes both a misdemeanor and a felony. It implies felony in larceny without limiting or restricting in anywise the general scope of the term "larceny." The words "or any other felony," as used in this statute, are equivalent to the words "or any felony other than that embraced within the larceny." We

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