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ALL MATTERS WITHIN AN ISSUE PASSED UPON BY THE JURY.-In an action upon a note, where the issue was joined as to the reasonableness of attorney's fees, and the verdict was for the amount of the note only, it is presumed that the jury refused to allow any attorney fees: Cox v. Alexander, 30 Or. 444, 46 Pac. 794.

Under a general verdict for one party or the other, every material allegation of the pleading of that party will be presumed to be true: Shmit v. Day, 27 Or. 116, 39 Pac. 870.

In an action for the price or dresses, where the defense was the statute of frauds, and the court left it to the jury to determine whether or not there had been such a receipt and acceptance of the dresses as would take it out of the statute, on a general verdict for the plaintiff, it will be presumed that there was a receipt and acceptance of the dresses under the contract, upon the evidence admitted: Galvin v. McKenzie, 21 Or. 185, 27 Pac. 1039.

Where the quantity of lumber which defendants had on hand and which had been sawed from timber delivered by the plaintiff under a written contract, was one of the issues. a verdict and judgment thereon is decisive of those questions, and the party against whom it is rendered is precluded in a subsequent action from alleging anything different: Hall v. Zeller, 17 Or. 388, 21 Pac. 192.

FAIRNESS AND LEGALITY IN PRIVATE TRANSACTIONS is presumed until a contrary showing is made: Barger v. Taylor. 30 Or. 236, 47 Pac. 618.

ORDINARY COURSE OF BUSINESS FOLLOWED: Portland v. Besser, 10 Or.

249.

In the absence of evidence to the contrary. a deposit of money in a bank will be regarded as a general deposit: Shute v. Hinman, 34 Or. 583, 58 Pac. 882, 47 L. R. A. 265.

A PROMISSORY NOTE OR BILL OF EXCHANGE imports prima facie a consideration, and there is no proof required of such consideration until it has been challenged in some proper manner: McManus v. Smith, 37 Or. 226, 61 Pac. 844; Owens v. Snell. 29 Or. 488, 44 Pac. 827; Kenny V. Walker, 29 Or. 45. 44 Pac. 501; State v. Hanscom. 28 Or. 430, 43 Pac. 167; Flint v. Phipps, 16 Or. 448, 19 Pac. 543. A promissory note is presumed to have been given or transferred at the place and date stated therein: Kenny v. Walker, 29 Or. 45, 44 Pac. 501; Owens v. Snell, 29 Or. 489, 44 Pac. 827.

ACQUIESCENCE FROM BELIEF OF RIGHT. A silence for twenty years in regard to the property transferred by a deed is prima facie evidence that the party failing to object believed that the deed transferred the property supposed: Lovejoy v. Willamette Elec. Co. 31 Or. 193, 51 Pac. 197. A MAN AND WOMAN are presumed to

have entered into a lawful contract of marriage when it is shown by evidence that they are living together and cohabiting as man and wife, and are reputed in the community and received in society as such: Murray v. Murray, 6 Or. 29; McBean v. McBean, 37 Or. 205, 61 Pac. 418. This presumption does not obtain where the proof indicates that the relations were entirely meretricious from their inception: McBean v. McBean, supra.

THE CONTINUED EXISTENCE OF THINGS ONCE PROVED TO EXIST.From the proof of the execution of a note it is presumed that it is still in force until the expiration of six years: Mayes V. Stephens, 38 Or. 521, 64 Pac. 319.

Where a contract is once proved to have been executed it will be presumed to be in force until its completion: Shmit v. Day, 27 Or. 115, 39 Pac. 870.

GENUINENESS OF A DOCUMENT

FROM CONTINUED RECOGNITION BY THOSE INTERESTED THEREIN.-Where the constitution of a church has been observed and acted upon by those interested therein as the true organic law of the church for more than twenty years, it will be presumed to be genuine: Philomath College v. Wyatt, 27 Or. 444, 31 Pac. 206, 36 L. R. A. 68.

SALE OR MORTGAGE OF PERSONAL PROPERTY.-The laws of 1901 make a chattel mortgage that is unaccompanied by immediate delivery and continued change of possession void against subsequent purchasers and mortgagees in good faith. unless the mortgage is recorded in the proper office: See § 5633. Vol. II.

Where the vendee or mortgagee goes into possession, there is no presumption of fraud: Wyatt v. Wyatt, 31 Or. 539, 49 Pac. 855; Rule v. Bolles, 27 Or. 368, 41 Pac. 691. A certified copy of the record of a brand adopted by the owner of certain stock upon purchasing it, is competent for showing the change of possession of such animal: Rule v. Bolles, supra.

A mortgage on a stock of goods was filed as soon as made, and the mortgagee's agent, who occupied the other side of the same building as the mortgagor, took possession, and put in charge a man who hired the mortgagor to help him as clerk; new books were opened and all moneys received, after payment of running expenses, were applied on the mortgage debt. The mortgagor's name on the window was not erased, and it was held that there was a change of possession: Re Fisher's Estate, 25 Or. 64, 34 Pac. 1024.

A change of possession must be actual as distinguished from constructive or legal, and it must be accompanied by such outward acts of ownership as will indicate to the public that the property has changed hands. Possession of the mortgagee should also be exclusive, and not jointly or concurrently with the mortgagor: Pierce v. Kelly, 25 Or. 95, 34 Pac. 963.

CHAPTER IX.

OF INDISPENSABLE EVIDENCE.

§ 789. Indispensable Evidence.

Certain evidence is necessary to the validity of particular acts or the proof of particular facts. [L. 1862; D. Cd. § 767; H. C. § 777.]

§ 790. Evidence to Prove Usage, Perjury, or Treason.

Usage, perjury, and treason shall be proved by the testimony of more

than one witness; usage by the testimony of at least two witnesses; treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances. [L. 1862; D. Cd. § 768; H. C. § 778.]

What is meant by "corroborating circumstances" is evidence aliunde, which tends to prove the prisoner's guilt independent of his declaration. A conviction for the crime of perjury can not be sustained where there was no other evidence except proof of the taking of the oath, the giving of the evidence upon which the perjury is as signed, followed by proof that at other times the prisoner, when not under oath, made statements the legal effect of which to contradict his declaration under

was

$ 791.

Evidence to Prove Will.

oath: State v. Buckley, 18 Or. 231, 22 Pac. 838.

The evidence of only one witness in proving usage is not incompetent so as to make its admission reversible error, where no request that the evidence be withdrawn or that the jury be instructed to disregard it has been made and refused: Aldrich V. Columbia Ry. Co. 39 Or. 263, 64 Pac. 455. TREASON: See Oregon Constitution, Art. I, § 24, ante, and note.

A last will and testament, except when made by a soldier in actual military service, or by a mariner at sea, is invalid, unless it be in writing, and executed with such formalities as are required by law. Evidence, therefore, of such will shall not be received, other than the written instrument itself, or secondary evidence of its contents, in the cases prescribed by law. [L. 1862; D. Cd. § 769; H. C. § 779.]

This section does not amount to an exception to the general rule in relation to the admissibility of certified copies of the records of proceedings in probating a will, and does not authorize the admission of an unprobated will as evidence of title in an action for the recovery of real property. It is simply a general principle of the law of evi

$ 792.

dence, furnishing a rule for the guidance of the probate court in ascertaining whether a will has been executed with the formalities required by law, and authorizes the admission of secondary evidence of the contents of a lost will, or of one improperly destroyed and the like: Jones v. Dove, 6 Or. 191.

Evidence to Prove Alteration or Revocation of Will.

A written will can not be revoked or altered otherwise than by another written will, or another writing of the testator, declaring such revocation. or alteration, and executed with the same formalities required by law for the will itself; or unless the will be burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person, in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. [L. 1862; D. Cd. § 770; H. C. § 780.]

This section does not impliedly repeal the section providing that the will of an unmarried woman shall be deemed revoked by her subsequent marriage; it having no ref

erence to revocation by inference of law
from one's acts: Booth's Will, 40 Or.
66 Pac. 710.

$ 793. Evidence of Sale or Transfer of Real Property.

No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law. [L. 1862; D. Cd. § 771; H. C. § 781.]

VERBAL CONTRACTS RESPECTING LAND.-As to leases not to be performed within a year, or for a period exceeding one year, see § 797, post.

A trust in real estate can not be created by parol: Cooper v. Thomason, 30 Or. 170, 45 Pac. 296; Barger v. Barger, 30 Or. 275, 47 Pac. 702; Dodson v. Dodson, 26 Or. 359, 37 Pac. 542; Parrish v. Parrish, 33 Or. 490, 54 Pac. 352; Richmond v. Bloch, 36 Or. 595, 60 Pac. 385.

If, however, a grantee sells land under a parol agreement to convert it into money and pay the grantor's debts, his subsequent acknowledgment of the trust will bind him, as an express trust in personal property may be enforced without evidence in writing: Cooper v. Thomason, 30 Or. 170, 45 Pac. 296.

In a suit to enforce such a trust in personal property, the original agreement under which the premises were held may be proven by parol evidence to show the consideration for the subsequent declaration of the trust by the trustee: Cooper v. Thomason, 30 Or. 162, 45 Pac. 296.

A deed deposited in escrow is insufficient to take an oral contract for the sale of land out of the statute of frauds, unless such deed contains a memorandum of the agreement; nor is payment of the purchase price such a part performance as to overcome the plea of the statute; but taking possession in pursuance of the terms of the contract, and making improvements is sufficient for that purpose: Cooper v. Thomason, 30 Or. 174, 45 Pac. 296.

When money is once impressed with the trust, it may be traced in equity into whatever form it may assume, whenever and wherever it is capable of being identified and distinguished; and this right ceases only when the means of ascertainment fail: Barger v. Barger, 30 Or. 275, 47 Pac. 702. Where the plaintiff erected on his ward's premises fish wheels and operated them for his own benefit, and upon the majority of the ward it was agreed by parol to operate the wheels in partnership, plaintiff to have half interest in the wheels and premises, but nothing was paid by plaintiff or the partnership for such property, it was held that the fish wheels were realty and the property of the son, and that, there being no written instrument conveying such interest, the fish wheels were not partnership property: Dodson v. Dodson, 26 Or. 358, 37 Pac. 542.

Where a person obtains the legal title to

property by representing that it will be managed and held in trust for the grantor, with the intent to eventually appropriate such property to his own use, a trust ex maleficio arises, and a memorandum in writing is not required to establish it; but where the grantee, at the time he received the title, honestly intended to carry out the trust, but afterwards forms the design of defrauding the grantor, the trust is within the statute, and must be in writing: Parrish v. Parrish, 33 Or. 490, 54 Pac. 352.

Where a husband conveyed land by absolute deed to his wife, on a parol trust that she should hold it in trust for their children, her conveyance of the land to the children will be upheld as against her creditors, though executed after their claims accrued. While the wife held the property. if she sold it or disposed of it, she could have passed a valid title, as no memorandum of the trust was in writing, but, having executed the parol trust, the creditors have no right to have the property of such other subjected to the payment of the debts of the trustee: Richmond v. Bloch, 36 Or. 590, 60 Pac. 385.

A parol license to divert a certain quantity of water for irrigating purposes is not revocable by the licensor after the licensee has expended his money and labor in digging a ditch and preparing his land for the use of the water upon the faith of such parol license: McBroom v. Thompson, 25 Or. 565, 58 Pac. 524, 42 Am. St. Rep. 806. See. to same effect, Bowman v. Bowman, 35 Or. 279, 57 Pac. 546; but see Lavery v. Arnold, 36 Or. 84. 57 Pac. 906; and Ewing * v. Rhea, 37 Or. 583, 62 Pac. 790, 82 Am. St. Rep. 783.

An agreement to pay the debts of another in consideration of the conveyance of land does not come within the statute of frauds, where the contract as to the property is completely executed: Feldman v. McGuire, 34 Or. 314, 55 Pac. 872.

A valid contract of partnership for the purpose of speculating in real estate may be made by parol; the real estate or title to property is not the basis of such contract: Flower v. Barnekoff, 20 Or. 136, 25 Pac. 370, 11 L. R. A. 149. A subsequent written recognition of a parol agreement is sufficient to establish it under this section as an agreement in writing: Fisk v. Henarie, 13 Or. 156, 9 Pac. 322.

A verbal sale of an equitable interest in land is void: Chenoweth v. Lewis, 9 Or. 150.

$794. Last Section not to Affect Certain Cases.

The last section shall not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent a trust from arising or being extinguished by implication or operation of law, nor to affect the power of a court to compel specific performance of an agreement in relation to such property. [L. 1862; D. Cd. § 772; H. C. § 782.]

SPECIFIC PERFORMANCE. A party who claims a right to a conveyance of land upon a parol agreement on the ground of part performance must make out by clear and unsatisfactory proof the existence of the contract as alleged by him; and it is not enough that the acts of part performance proved are evidence of some agreement. but they must be unequivocal and satisfactory evidence of the particular agreement charged in the complaint or answer. Besides, the agreement must appear to be certain in its terms. and just and fair in all its parts: Plymale v. Comstock, 9 Or. 321.

A perfect contract in everything except that it is not written must be proved: Wagonblast v. Whitney, 12 Or. 83, 6 Pac. 399, 53 Am. Rep. 323. note; Richardson v. Orth, 40 Or. Ladd, 40 Or.

66 Pac. 926; Stone v. 67 Pac. 413; and the acts of part performance must be clearly proved: Kelly v. Ruble, 11 Or. 93. 4 Pac. 593. It must be certain and definite: Odell v. Morin, 5 Or. 96.

The boundaries of the land sold must be clearly defined, and if possession is relied on as part performance, such possession must be clear, visible, open, notorious, and exclusive: Brown v. Lord, 7 Or. 302.

Where one Covenants against incumbrances, specific performance will not be decreed at his instance until he removes all incumbrances: Sanford v. Wheelan, 12 Or. 301, 7 Pac. 324.

The amount of performance necessary to justify the enforcement of an oral contract to convey land must depend upon the condition and ability of the party claiming specific performance: Barrett v. Schleich, 37 Or. 613, 62 Pac. 792.

Where the complaint in a suit for specific performance alleged that complainant, in consideration of defendant's agreement to convey, agreed to reside on the land, to build a house and fences, and to cultivate the land, and no motion was made in the trial court to require the complainant to specify more definitely as to the term of residence, and the character and extent of the improvements required by the agreement, failure to require such specific allegations authorized the court to construe the character of the improvements and the length of time as qualified by the word "reasonable," and, the evidence showing reasonable compliance, a decree for complainant will not be disturbed: Barrett v. Schleich, 37 Or. 613, 62 Pac. 792.

Payment of the purchase price is not such part performance as to overcome the plea of the statute; but taking possession in pursuance of the terms of the contract and making improvements is sufficient for that purpose, and such contract may be specifically enforced: Cooper v. Thomason, 30 Or. 175, 45 Pac. 296; Wallace v. Scoggins,

18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 749, note; same case, 17 Or. 480, 21 Pac. 558.

A trust arising from the operation of law is not within the purview of the preceding section, and requires no memorandum in writing to be enforceable: Parrish v. Parrish, 33 Or. 490, 54 Pac. 352.

The marriage alone of parties to an agreement will not be a part performance sufficient to take out of the statute of frauds an agreement for the transfer of property; and a court of equity will not decree specific performance of an oral agreement to make a marriage settlement, unless the party to be charged has given countenance to the doing of acts by the adverse party upon the faith of the agreement, of such nature that the latter will be materially injured if the agreement were not carried out. In such a case the court, in order to avoid a fraudulent use being made of the statute, will enforce specific performance of the agreement: Adams v. Adams, 17 Or. 247, 20 Pac. 638. A parol agreement to convey to one's stepdaughter an estate, in consideration that the latter would live with decedent and her husband and care for the husband during his illness, was not supported by sufficient consideration to warrant specific performance, where it appeared that the daughter actually cared for her father only a month when she was relieved from her duty by his removal to other quarters, and where she continued her regular occupation during the entire period: Richardson v. Orth, 40 Or. 66 Pac. 926. "

$795. Evidence of Sale or Transfer of Vessel.

A sale or transfer of a vessel is not valid unless it be in writing and signed by the party making the transfer. [L. 1862; D. Cd. § 773; H. C. § 783.]

An incomplete portion of a boat, as the hull or other part, requiring the construction of an additional part before it can be used for the purpose intended, is not a

"vessel" within the meaning of this section: Yarnberg v. Watson, 13 Or. 11, 4 Pac. 296.

$ 796. Authority to Execute Sealed Instrument.

The authority to execute a sealed instrument for another shall be under seal, if the sealing of the instrument be essential to its validity. [L. 1862; D. Cd. § 774; H. C. § 784.]

A mortgage executed on behalf of a corporation by a duly authorized agent, purporting to be under its seal, is not invalid because the seal attached is only a scroll and not the regularly adopted corporate seal, since it is now settled that a corporate

contract does not require a seal, unless a similar contract, if made by an individual, would have to be sealed, and in such case any convenient seal will accomplish the purpose: Thayer v. Nehalem Mill Co. 31 Or. 444, 51 Pac 202.

§ 797. Agreement not in Writing, When Void.

In the following cases the agreement is void, unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence therefore of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law:

1. An agreement that, by its terms, is not to be performed within a year from the making thereof;

2. An agreement to answer for the debt, default, or miscarriage of another;

3. An agreement by an executor or administrator to pay the debts of his testator or intestate out of his own estate;

4. An agreement made upon consideration of marriage, other than a mutual promise to marry;

5. An agreement for the sale of personal property at a price not less than fifty dollars, unless the buyer accept and receive some part of such personal property, or pay at the time some part of the purchase money; but when the sale is made by auction, an entry by the auctioneer, in his sale book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum;

6. An agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein;

7. An agreement concerning real property, made by an agent of the party sought to be charged, unless the authority of the agent be in writing. [L. 1862 ; D. Cd. § 75; H. C. § 785.]

STATUTE OF FRAUDS, GENERALLY. -The consideration must be expressed in the writing in order to make the agreement valid: Corbett v. Salem Gas Co. 6 Or. 408, 25 Am. Rep. 541, note.

Defendant signed memorandum of agreement as to the sale of land: "Price $6,000. C. pays note for $200. Deed to be special warranty, and C. pays for cablegrams. Money to be paid on or before forty days. Possession when money paid and deed given to W.; farm 297 acres more or less as shown by deed. Abstract furnished." This memorandum was held insufficient for indefiniteness: Catterlin v. Bush, 39 Or. 496, 65 Pac. 1064.

A contract between cosureties, fixing the proportion and extent of their several or correlative liability as between themselves, is not within the statute of frauds: Rose v. Wollenberg, 31 Or. 274, 44 Pac. 382, 65 Am. St. Rep. 826, 39 L. R. A. 378.

The affixing of a seal to an instrument implies a consideration, which is a sufficient expression thereof to satisfy the statute of frauds: Johnston v. Wadsworth, 24 Or. 502, 34 Pac. 13.

AGREEMENT NOT то BE PERFORMED WITHIN A YEAR.-A promise to pay a sum of money "inside of a year from now," is not within this subdivision: Denn v. Peters, 36 Or. 491, 59 Pac. 1109.

Where the parties must have expected that a contract would not be performed within a year, yet by its terms it might have been so performed, it is not within the statute: Southwell v. Beezley, 5 Or. 458. It must appear that the contract is incapable of performance within a year: Hedges v. Strong, 3 Or. 18.

A lease to commence in futuro is an agreement not to be performed within a year within this section, and must be in writing: White v. Holland, 17 Or. 4, 3 Pac. 573.

While a verbal lease of land for a term longer than one year is void so that neither party can enforce its terms against the other, yet if the lessee go into possession under the lease and pay rent to the lessor, who accepts it, obligations may thereby be created in reference to the occupation of the property that would be legally binding upon the parties. The acts of the parties under such a lease may create in the lessee an estate from year to year: Rosenblat v. Perkins, 18 Or. 156, 22 Pac. 598.

In an action where a written contract has been modified by verbal agreement, which verbal agreement was not to be performed within one year, oral evidence was admissible in an action thereon in order to give an understanding of the surrounding circumstances: Keller v. Bley, 15 Or. 433, 15 Pac. 705.

DEBT, DEFAULT, OR MISCARRIAGE OF ANOTHER.-The verbal promise to pay the debt of another if the creditor will forbear to sue, or discontinue a suit already begun, or release a lien on personal property held in pledge, unless the promissor derives a benefit therefrom peculiar to himself, are all collaterial undertakings, and within the statute unless in writing: Gump

V.

Halberstadt, 15 Or. 358, 15 Pac. 467; Miller v. Lynch, 17 Or. 61, .19 Pac. 845.

Where plaintiffs perform work for one who contracted with defendants to do it, and after the work was completed derendants orally promise to pay therefor, plaintiff can not recover, though such promise was unconditional: Bixby v. Church, 28 Or. 243, 42 Pac. 613.

Where L. wrote to A. "I will accept C.'s order for $20 on December 12, 1892." and C. wrote his name on the back of such paper, he is not liable to A. thereon, because, if the promise is to pay C.'s debt, it does not express the consideration, and if it is only a promise to accept an order, the order was never drawn: Allen V. Leavens, 26 Or. 167, 37 Pac. 488, 46 Am. St. Rep. 613, 26 L. R. A. 620.

If a defendant agreed with the plaintiff to pay him a certain sum which another, S., owed him, and that in consideration of such agreement the plaintiff discharged S. from all liability upon said S.'s debt, and released property which had been held for such debt, the defendant's agreement to pay this certain sum to the plaintiff is a new and original agreement, and is not within the statute of frauds: Miller v. Lynch, 17 Or. 61, 19 Pac. 845.

But where one has a received a fund in consideration of which he promises to pay the debt of another, this promise is not within the statute of frauds, and may be recovered by the creditor of the person whose debt is to be paid, and may be proven by parol: Feldman v. McGuire, 34 Or. 312, 55 Pac. 872.

Where the credit is given entirely to one party and the sale of goods is in fact to

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