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subject of judicial discussion which exhibits | ant Box Factory, called at his office about such a contrariety of opinion as the question now before us for decision. In England the tendency of the courts is to treat all contracts for the purchase of articles not in existence, but to be afterwards manufactured, as a sale of chattels, and within the statute. In Lee v. Griffin, 1 B. & S. 272, it was even held that a contract by a dentist to make a set of artificial teeth was a contract for the sale of goods, and was void because not in writing. In New York the rule is that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put into a condition to be delivered, is not a contract for the sale of goods within the meaning of the statute. In Massachusetts a third rule is announced, to the effect that a contract for the sale of articles then existing, or such as the vendor in the ordinary course manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods to which the statute applies. But if the goods are to be manufactured upon a special order, and not for the general market, then the agreement does not amount to a contract for the sale of goods so as to come within the statute. The three rules of construction above noted, with a full citation of authorities supporting each, are discussed in the able opinion of Mr. Justice Bean in Hientz v. Burkhard, 29 Or. 55, 43 Pac. 866, 31 L. R. A. 508, 54 Am. St. Rep. 777, which has become a leading case on this subject. While the learned justice in that particular case did not indicate choice between the rules laid down by the New York and the Massachusetts courts, we are of the opinion that, while the application of the latter rule, or indeed of any fixed rule, is difficult in many cases, it affords a better and fairer test of the applicability of the statute, in the great majority of instances, than either of the others. Indeed the English rule is expressly repudiated in the case of Hientz v. Burkhard. We will now proceed to apply the rule that prevails in Massachusetts and in the majority of the United States jurisdictions to the facts found in this case, bearing in mind that this court has no power to weigh contradictory testimony, if in the record there is found any testimony upon which a particular finding might reasonably have been predicated. Hallock v. Portland, supra; Hicklin v. McClear, 18 Or. 137, 22 Pac. 1057; Hughes v. Holman, 23 Or. 481, 32 Pac. 298; Liebe v. Nicolai, 30 Or. 364, 48 Pac. 172.

The first assignment of error attacks finding No. 3, for the alleged reason that the testimony was insufficient to support a finding to the effect that a contract to manufacture and deliver to plaintiff 50,000 oil cases, of specified dimensions and construction, was entered into between plaintiff and defendant Box Factory. The plaintiff testified that one Aldrich, the general manager of the defend

the 21st day of January, 1907, and told him that he had been over to see the Standard Oil Company, and found that they did not want any oil cases, and asked plaintiff what was doing in oil cases, and if he could use any. They discussed prices, and as to whether the bottoms should be of one or two pieces, and whether the ends should be of fir, and plaintiff then told Aldrich that he could use fir ends, and that he wanted one piece tops and bottoms, but that he would accept some two piece bottoms. Aldrich then named a price of 12 cents each, delivered in Portland at Martin's Dock, and, when the other details had been settled, Aldrich agreed to ship plaintiff 50,000 cases. Plaintiff thereupon, in the presence of Aldrich, had his bookkeeper enter the order on the book under the title of "Order 161." The order, as it appeared upon the book, was as follows: "Portland, Oregon, January 21, 1907: 50,000 % gallon oil cases, $12.00 f. o. b. dock, Portland. Inside measure 194x9% x142. Ends " S. 2 S. Sides %", S. 1 S., 2 pieces. T. & B. ", S. 1 S. 1 piece tops, 1 piece bottoms. Some 2 piece bottoms allowed. Ends to be of fir." Plaintiff also testified that on the same day he wrote a letter to the defendant Box Factory embodying said order in the same terms as above, except that there was added to the terms the sentence, "Shipment to be made as soon as possible." Witness testified that the Standard Oil Company's case was 142x 95x21. 2 piece %x142x21 sides and 2 piece %x10%x21 tops and bottoms and one piece %xx21 bracing stick; that the Standard Oil people would not accept boxes with fir ends, but required them to be all pine or all spruce; that the factories did not usually carry oil cases in stock, but contracted each year for a certain number, and thereafter saved the stock to fill the orders; that the Standard Oil Company was the principal buyer of oil cases in the Oregon market; that the use of fir ends was contrary to the usual demands of trade in oil cases; that he bought these cases to supply an order from the Raymond Box Company of Raymond, and was unable to fill said order on account of the default of the defendant Box Factory. His bookkeeper corroborated his testimony as to the making of the original contract, which was denied by Aldrich, who testified that he took the order only tentatively and with the understanding that he would find out whether he could obtain the necessary lumber out of which to manufacture the boxes, and that if it could be obtained, the company would make them, but asserted that he never accepted the contract, and that a few days afterwards he called upon the plaintiff and informed him that it was impossible to get the lumber, and plaintiff told him that it was all right. Plaintiff denied the conversation. Plaintiff's books and evidence indicated a complete oral contract, and the testimony of Aldrich, supplemented

by the fact that no memorandum, contemporaneous with his first interview with plaintiff, appeared on defendant's books, would seem to indicate that Aldrich never considered that he had entered into a complete contract with plaintiff. It would seem hardly probable on the face of the transaction that Aldrich would make a contract to furnish several thousand dollars' worth of goods and utterly fail to enter the transaction in some form upon the books of his company; but, in view of the direct conflict in the testimony, that question was for the court below to decide, and we must assume the correctness of the finding. If there was a contract at all to furnish these boxes, it was a contract primarily to manufacture them. Aldrich admits that the conversation in regard to the matter which took place between him and the plaintiff related to the making of the boxes by his company, and gives, as a reason for his not closing up the contract at the time of the interview, that he wished first to ascertain whether his company could get the necessary lumber. So we cannot say that the finding is unsupported by evidence, and it must stand.

not at liberty to disregard said finding. Liebe v. Nicolai, supra. Accepting therefore, as we must, the finding of the lower court as correct, it must be held that the boxes called for in the contract did not exist in specie at the date thereof; that they were not such as the defendant Box Factory ordinarily produced in the regular course of its business, but that the contract for their manufacture was a special order for a special purpose, and that the goods were not such as were usually kept on hand or regularly manufactured by the said defendant for general sale in the market; that it was not possible for the plaintiff to have procured boxes of this character in any considerable quantity in the open market, and therefore could not have filled his order from other sources.

Counsel for defendants lay much stress upon the fact that no special skill was required in the manufacture of these boxes, and it is hardly probable that the plaintiff was contracting with defendant on account of such skill. Anybody with skill enough to saw, dress, and match boards could construct a box such as plaintiff ordered of defendant. The supposed facilities of defendant for producing these boxes in large quantities and within a short period, probably cut more figure in inducing plaintiff to give it an order than the question of special skill in the proposed work.

We have not discussed the various and conflicting decisions of other courts on the general subject here involved. They will be found cited in Smith on Fraud, supra, and are discussed in the very able opinion of Mr. Justice Bean in Hientz v. Burkhard, supra.

Applying what is termed the Massachusetts rule, which we adopt as the one applicable in this state, to the facts found by the court below, we conclude that the contract sued upon is not within the statute of frauds.

We are also of the opinion that the court adopted the correct measure of damages in this case, and the judgment is affirmed.

The eighth finding of fact is as follows: "That the contract entered into by said plaintiff with said Bridal Veil Box Factory was a contract concerning personal property which did not at the time exist in specie, and for work and labor to thereafter be performed, and that at the time said contract was entered into the said defendant Bridal Veil Box Factory did not have the material on hand, and did not own the material necessary to make up said oil boxes; that in order to fulfill said contract so entered into as aforesaid the said Bridal Veil Box Factory would have had to purchase the materials therefor from other parties, and that said contract was not a sale of personal property, and that said oil cases contracted for as aforesaid were not such as the said Bridal Veil Box Factory ordinarily produced in the course of its business, but that said contract above set out was a special order for a special purpose, and that said oil cases were not the standard regulation size of oil cases such ELMORE PACKING CO. v. TILLAMOOK as is ordinarily, generally, and usually manufactured by and kept on hand at the factory of the said Bridal Veil Box Factory, at Bridal Veil, Or., for sale in the general market." The testimony upon which this finding is made was conflicting. On behalf of the defendant there was testimony tending to show that the goods ordered were substantially identical with those used by several oil companies and firms, and that they were kept in stock in small quantities by several factories in and about the city of Portland, including the defendant Box Factory, and had at least a limited market. The plaintiff introduced testimony, however, from which the court had a right to find as it did, and we are

COUNTY.

(Supreme Court of Oregon. Dec. 28, 1909.) 1. TAXATION (§ 493*)-BOARD OF EQUALIZATION-WRIT OF REVIEW.

Under B. & C. Comp. § 596, the petition for a writ of review to the board of equalization must contain a statement of facts that, if true, will show prima facie that the lower court has acted without jurisdiction, or has exercised its functions erroneously.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 881; Dec. Dig. § 493.*] 2. TAXATION (§ 493*) - BOARD OF EQUALIZATION - WRIT OF REVIEW-EXISTENCE OF OTHER REMEDY.

writ concurrent with a right of appeal, a writ Under B. & C. Comp. § 597, making the of review to the board of equalization will lie, notwithstanding there is also a remedy of ap

peal under section 8, p. 451, Laws 1907, relating | 10. TAXATION (§ 263*)-PERSONALTY - PLACE to the duties of the board of equalization.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 876; Dec. Dig. § 493.*]

3. TAXATION (§ 493*)-BOARD OF EQUALIZATION-AFFIDAVITS-VALUE.

Where, on review of an assessor's valuation of property, before the board of equalization, petitioners make affidavit as to real value, the court, in reviewing the determination of the board, is not bound to accept that affidavit as true, though the board presents no evidence of the value, as the assessor's valuation is prima facie evidence of the value of the property.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 882; Dec. Dig. § 493.*]

4. TAXATION (§ 493*)-BOARD OF EQUALIZATION-WRIT OF REVIEW-QUESTION OF FACT. On a writ of review to the board of equalization, the reviewing court will not consider the evidence on which the inferior tribunal acted for the purpose of deciding a disputed question as to value.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 882; Dec. Dig. § 493.*]

5. TAXATION (§ 493*)-BOARD OF EQUALIZATION-WRIT OF REVIEW-WHEN LIES.

A writ of review to the board of equalization will only lie in two classes of cases: First, when the inferior court or tribunal has exceeded its jurisdiction; and, second, when it has exercised its judicial functions erroneously-that is, illegally and contrary to the course of procedure applicable to the matter before it.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 876; Dec. Dig. § 493.*]

6. TAXATION (§ 493*)-BOARD OF EQUALIZATION WRIT OF REVIEW SUFFICIENCY OF PETITION.

Under B. & C. Comp. § 3046, as amended by Laws 1907, p. 488, § 11, providing that personal property in one's possession as trustee shall be assessed to the person in possession, and section 3047, providing that goods, wares, and merchandise kept for sale in this state shall be taxable to the owner thereof, or to the corporation who shall have charge of or be in possession of them, a petition for writ of review to the board of equalization which alleges, without more, that the assessor wrongfully assessed 5,000 cases of salmon which plaintiff did not own, was insufficient.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 881; Dec. Dig. § 493.*]

7. TAXATION (§ 493*)-BOARD OF EQUALIZATION-WRIT OF REVIEW.

A petition for writ of review to the board of equalization must be taken most strongly against the pleader.

[Ed. Note. For other cases, see Taxation, see Taxation, Cent. Dig. § 881; Dec. Dig. § 493.*]

8. TAXATION (8 493*)-BOARD OF EQUALIZATION-WRIT OF REVIEW.

A recital in a petition for a writ of review to the board of equalization of independent facts cannot aid the record sought to be reviewed, as it must show the facts presented by the record from which the error appears.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 881; Dec. Dig. § 493.*] 9. TAXATION (§ 493*)-BOARD OF EQUALIZATION-WRIT OF REVIEW-ISSUES PRESENTED.

On a writ of review to the board of equalization, the reviewing court cannot notice questions not raised before the board of equalization. [Ed. Note. For other cases, see Taxation, Cent. Dig. $$ 876-883; Dec. Dig. § 493.*]

OF TAXATION.

Under B. & C. Comp. § 3047, providing that goods, wares, and merchandise for sale in this state shall be taxable in the county where the same shall be, cases of salmon in a cannery located in a county other than the county of the residence of the corporation owning the salmon is properly assessable where the salmon is situated.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 437; Dec. Dig. § 263.*]

Appeal from Circuit Court, Tillamook County; Wm. Galloway, Judge.

Writ of review by the Elmore Packing Company against Tillamook County to review the action of the board of equalization. From a judgment quashing the writ, plaintiff appeals. Affirmed.

Oak Nolan and G. C. Fulton (Claude Thayer, on the brief), for appellant. Chas. L. McNary (John H. McNary and W. H. Cooper, on the brief), for respondent.

EAKIN, J. The record in this case discloses that plaintiff was on March 1, 1907, a corporation, having its principal office at Clatsop county, Or., and at that time owned canning machinery at Nestucca and also at Garibaldi, both in Tillamook county; that there were on that date situated in plaintiff's said Nestucca cannery 5,000 cases of salmon; that on that date the county assessor of Tillamook county assessed plaintiff for the said Nestucca machinery at a valuation of $2,700, and the Garibaldi machinery at $3,000; that he also assessed to the plaintiff the 5,000 cases of salmon at $8,000; that on September 16, 1907, the assessment roll for that year, including the above assessments, was filed with the county clerk, and thereafter, on October 21st, after due notice thereof, the county judge, clerk, and assessor met as the board of equalization for Tillamook county, and on the 24th day of October plaintiff appeared before the said board. and presented a petition, supported by the affidavit of its secretary, asking for a reduction of the assessment, stating that said machinery was assessed above its cash value, and that plaintiff did not, on the 1st day of March own the said 5,000 cases of salmon. Plaintiff therefore asked that the assessment on the machinery be reduced and the assessment on the salmon be canceled. The board of equalization denied the plaintiff's application, whereupon, on February 29, 1908, plaintiff presented to the circuit court a petition for a writ of review, reciting the facts above stated, and further alleging that the value of the machinery was not more than $3,000. Based upon this petition, a writ of review was issued and the clerk of the county court returned the same to the circuit court, together with a certified copy of the record of the proceedings of the board of equalization. Thereafter the defendant moved the court to quash the writ of review for the reason

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that there were no facts set forth therein which warranted its issuance, and also for the reasons that the petition for the writ did not state facts sufficient to justify its issuance, and that the court had no jurisdiction of the parties therein nor of the subject-matter of the cause. This motion was allowed by the court on May 1, 1908, and the proceeding was dismissed. The plaintiff appeals.

As to the salmon, the petition alleges that the assessor wrongfully assessed to the plaintiff 5,000 cases of salmon, valued at $8,000, which plaintiff did not own. Section 3046, B. & C. Comp., as amended in 1907 (Laws 1907, p. 488, § 11), provides that personal property in one's possession as trustee shall be assessed to the person in possession of it. Also section 3047, B. & C. Comp., provides that goods, wares, and merchandise kept for sale in this state shall be taxable to the owner thereof or to the person or corporation who shall have charge of or be in possession of them. Therefore the salmon might have been assessable to plaintiff, even though plaintiff did not own the same. If the salmon was in plaintiff's Nestucca cannery, it was assessable to plaintiff, although it belonged to some other corporation or person. And the petition is insufficient, as, in stating what took place before the board of equalization, it must appear, not only that the salmon did not belong to plaintiff, but that it was not in plaintiff's charge or possession. The petition for the writ must be construed most strongly against the pleader, and it impliedly admits that the salmon on March 1, 1907, was in the possession of plaintiff. A recital in the petition of independent facts cannot aid the record sought to be reviewed. It must show the facts presented by the record from which the error appears. Therefore it does not appear from the petition that the salmon was improperly assessed to plaintiff, nor that the board exercised its functions erroneously in denying the plaintiff's application to cancel the assessment of the salmon to it.

There is but one question involved upon this appeal, and that is: Does the petition for the writ state facts sufficient to authorize its issuance? The petition must contain such a statement of facts that, if taken as true, will disclose prima facie that the lower court has acted without jurisdiction or has exercised its functions erroneously. B. & C. Comp. 596; Southern Oregon Company v. Coos Co., 30 Or. 250, 47 Pac. 852; Fisher v. Union County, 43 Or. 223, 72 Pac. 797; Holmes v. Cole, 51 Or. 483, 94 Pac. 964. If the cause is brought within this rule by the petition, then the writ will lie, notwithstanding there is also a remedy by appeal under section 8 of the act of 1907 (Laws 1907, p. 451), relating to the duties of the board of equalization. B. & C. Comp. § 597; McAnish v. Grant, 44 Or. 57, 74 Pac. 396. But the only facts disclosed by this petition upon which error of the board is predicated are, first, that the machinery, which is assessed at a valuation of $5,700, is worth no more than $3,000; and, second, that the plaintiff did not on the 1st day of March own the 5,000 cases of salmon. As to the valuation of the machinery, it is alleged that plaintiff's application to the board is supported by the affidavit of its secretary, and no evidence was presented by the board as to its value, and therefore the statements in the application should be accepted as undisputed facts. However, the assessor's valuation is prima facie sufficient evidence of the value of the property, both as against the county and the petitioner, and must be considered in weighing the effects of the plaintiff's affidavit. Oregon Coal Company v. Coos Bay, 30 Or. 308, 47 Pac. 851. Independent of the statements in the application, the question of value is purely one of fact, which the writ will not bring to the reviewing court. Smith v. City of Portland, 25 Or. 297, 35 Pac. 665; Oregon Coal Company v. Coos Bay, supra. As stated in Garnsey v. County Court, 33 Or. 206, 54 Pac. 539, 1089, the writ of review will only lie in two classes of cases: First, whenever the inferior court or tribunal has exceeded its jurisdiction; and, second, whenever it has exercised its judicial functions erroneously—that is, illegally and contrary to the course of procedure applicable to the matter before it. If the inferior court has jurisdicIn view of the act of 1907 (Laws 1907, p. tion of the matter brought before it and pro-ization, and which requires (sections 1, 2, and 3) 450), defining the duties of the board of equalceeds in the manner provided by law, its er- the board to increase or reduce the valuation rors cannot be reviewed by this writ. of property assessed so that the same shall be

It is contended by plaintiff that, even if it did own the salmon, the same should not have been assessed to it in Tillamook county, but in the county of its residence. This question does not appear to have been presented to the board of equalization, and, if not, it cannot be raised upon review. But under section 3047, B. & C. Comp., goods, wares and merchandise kept for sale in this state shall be taxable in the county where the same shall be either to the owner thereof or to the person or corporation who shall have charge of or be in possession of the same, and it does not appear that the salmon was not asvision of that section. The motion to quash the writ was properly allowed. sessable in Tillamook county within the proThe judgment is affirmed.

ELMORE v. TILLAMOOK COUNTY. (Supreme Court of Oregon. Dec. 28, 1909.) 1. TAXATION (§ 459*)—EQUALIZATION OF AS

SESSMENTS.

the full cash value thereof, it is not a ground | if the adjoining property is assessed under for reducing an assessment of land below its its actual value, it is the duty of the board true value that it is assessed higher than adjoining land, but, if the latter is assessed under its actual value, it is the duty of the board to increase its assessment, and not reduce the assessment of the land of a party complaining of the inequality.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 459.*]

2. CERTIORARI (§ 1*)- SCOPE OF REVIEW "WRIT OF REVIEW."

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The scope of the writ of review is to reI view the determination of the lower tribunal when it has exceeded its jurisdiction or exercised the same erroneously in making such determination, and original relief cannot be secured thereby.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 1; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 8, pp. 7537, 7538, 7838.]

Appeal from Circuit Court, Tillamook County; Wm. Galloway, Judge.

Petition for a writ of review by Samuel Elmore against Tillamook County, to review the action of the county board of equalization. The writ was quashed and the proceedings dismissed, and plaintiff appeals. Affirmed.

to increase its assessment, and not to reduce the assessment of plaintiff's property. Sections 1, 2, and 3 of the act of 1907, defining the duties of the board of equalization (Laws 1907, p. 450), require the board to increase or reduce the valuation of property assessed, so that the same shall be the full cash value thereof. There is nothing in this record indicating that plaintiff's property was assessed above its actual cash value. The petition does not seek to review any order or determination of the board of equalization, but asks the reviewing court to decree that said assessment be reduced to $3,835. The scope of the writ is to review

the decision or determination of the lower tribunal, when it has exceeded its jurisdiction or exercised the same erroneously in making such determination. Original relief cannot be secured upon review.

The petition is insufficient to authorize the writ of review, and the judgment is affirmed.

COUNTY.

Oak Nolan and G. C. Fulton (Claude Thay-NEHALEM PACKING CO. v. TILLAMOOK er, on the brief), for appellant. Chas. L. McNary (John H. McNary and W. H. Cooper, on the brief), for respondent.

EAKIN, J. This is a proceeding to review the action of the Tillamook county board of equalization. The circuit court upon motion quashed the writ, and dismissed the proceeding because the petition did not state facts

sufficient to authorize the writ. As to the sufficiency of the petition for a writ of review, what is said in Elmore Packing Company v. Tillamook County (just decided) 105 Pac. 898, applies equally to this case.

(Supreme Court of Oregon. Dec. 28, 1909.) Appeal from Circuit Court, Tillamook County; Wm. Galloway, Judge.

Proceedings by the Nehalem Packing Company against Tillamook County. From a judgment for the county, plaintiff appeals. Affirmed.

Oak Nolan and G. C. Fulton (Claude Thayer, on the brief), for appellant. Chas. L. McNary (John H. McNary and W. H. Cooper, on the brief), for respondent.

EAKIN, J. This is a proceeding to review the action of the Tillamook county board of equalization in refusing to reduce the valuation of certain canning machinery assessed to plaintiff, and to cancel the assessment to plaintiff of 5,100 cases of salmon which it alleged it did not with those in case of the Elmore Packing Comown. The questions involved here are identical pany v. Tillamook County (just decided) 105 Pac. 898, and the principles announced in that case apply equally here and determine this case adversely to the plaintiff. Judgment is affirmed.

SWANK v. ELWERT et al. (Supreme Court of Oregon.

Jan. 4, 1910.)

The petition states that plaintiff is the owner of lots 1, 2, 7, and 8, in section 26, township 1 S., range 10 W., in Tillamook county, which were assessed for the year 1907 in that county at a valuation of $9,500, and should not have been assessed for more than $3,835; that on October 24, 1907, plaintiff appeared before the board of equalization and made application to have the assessment valuation reduced to $3,835, but that the board did not hear or consider said application, or make any order in relation thereto. The petition does not disclose that the application to the board contained any statement as to what the actual value of the property was, or recited any fact that would require the board to reduce the valuation. Nor does the petition state that the property is assessed above its true value. On the contrary, the ground upon which relief is sought is that the property is assessed high-grounds stated for striking out a portion of the er than adjoining lands. This is not a ground for a reduction of plaintiff's assessment below the true value of the land; but,

1. PLEADING (§ 362*)-MOTION TO STRIKE OUT -STATUTORY PROVISIONS.

as sham, frivolous, and irrelevant is authorized A motion to strike out part of an answer by B. & C. Comp. § 86, which permits irrelevant or redundant matter to be stricken on mois not in conflict with section 76, providing that tion of the adverse party, and such a motion sham, frivolous, and irrelevant answers may be stricken on motion; for, where one of the

answer is irrelevancy, the motion may be directed to a part of the answer only.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 1152; Dec. Dig. § 362.*]

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