for the debt, but must bring his action of fore been received than was admitted by the closure." 11 C. J. 746, note 20.

[2] In the case at bar the cause of action set forth in the complaint was predicated upon the promissory note. The answer alleged inter alia a sale of the personal prop-in the law, sometimes in the excitement inerty under an exercise of power specified in cident to the importance of the issues involvthe chattel mortgage, thereby permitting the ed, overlook these elementary principles, and defendant to show, if he could, that the sale when this occurs it becomes the duty of the had not been seasonably made, or fairly con- court promptly to call attention to the de

so in this instance, the counsel's knowledge | contract and acts inconsistent with an intent of the law was not challenged, nor his mo- to disaffirm. tive impugned, and hence no error was committed in these particulars.

[5] One of plaintiffs' witnesses, on rebuttal, was directed:

"Tell the jury, Mr. Ashley, what reason there was, if any, for Mr. Lance and Mr. Rahskoff indorsing this note."

The petition is denied.

MCBRIDE, C. J., and BURNETT and HARRIS, JJ., concur.

(88 Or. 120)

CHURCHILL v. MEADE et al.

An objection to the command made by defendants' counsel was overruled and an ex-(Supreme Court of Oregon. March 19, 1918.)

ception taken, and it is maintained that an error was thereby committed. It was proper for the witness to explain to the jury the reasons given by the defendants for indorsing the promissory note sued upon, and in doing

so no error was committed.

Exceptions were taken by defendants' counsel to some of the instructions given, and to the court's refusal to charge as requested. Without setting forth any of these matters a careful examination thereof convinces us that no error was committed in any of these particulars. The judgment should therefore be affirmed; and it is so ordered.

1. MORTGAGES 400(1)-FORECLOSURE-DEFAULT-COVENANT-PRIOR INCUMBRANCE.

Where a mortgage provided that the mortgagors should reduce a prior incumbrance, and that failure to perform any agreement should of the mortgagors in procuring a receipt from authorize immediate foreclosure, the act of one the administrator of the estate which owned the prior incumbrance, but paying no money therefor, and without exhibiting the receipt to either the mortgagee or his assignee, was not such performance as to prevent foreclosure. 2. MORTGAGES 409 FORECLOSURE - DEFAULT-COVENANT-PRIOR INCUMBRANCE.

Where mortgagors covenanted with their mortgagee to pay principal and interest on a prior mortgage, in favor of the state land board, and to furnish the mortgagee evidence thereof, and agreed that any breach should give the right

MCBRIDE, C. J., and McCAMANT and of immediate foreclosure, the indulgence of the BEAN, JJ., concur.

(87 Or. 690)

HILLS v. CAMPBELL.
(Supreme Court of Oregon. March 19, 1918.)
Department 1. Appeal from Circuit Court,
Multnomah County; H. E. McGinn, Judge.
On petition for rehearing. Denied.
For former opinion, see 170 Pac. 298.

W. E. Richardson, of Portland, and S. T.
Richardson, of Salem (A. R. Mendenhall, of
Portland, on the brief), for appellant.
Frank Schlegal and Claude Strahan, both of
Portland (Waldamer Seton, of Portland, on
the brief), for respondent.

state land board in not foreclosing does not avoid the effect of their breach of covenant to pay such mortgage.

Department 1. Appeal from Circuit Court, Tillamook County; George R. Bagley, Judge.

Suit by Arthur M. Churchill against Minnie A. Meade and T. B. Meade. From decree for plaintiff, defendants appeal. Affirmed, with modification as to costs.

This is a suit to foreclose what is admitted to be a purchase-money mortgage, dated February 10, 1915, given by the defendants to the assignor of plaintiff and securing a note of that date for $17,000 upon land partly in Tillamook county and partly in Multnomah county. It is stated in the mortgage

that:

The realty in Tillamook county "is incumbered by a mortgage of one thousand dollars; said Meades agree to pay principal and interest thereon as provided therein and furnish Beals [original mortgagee] evidence thereof."

The realty in Multnomah county was incumbered by a mortgage calling for $1,750, concerning which the instrument here involved provided that:

BENSON, J. Plaintiff's petition for a rehearing contains a renewed and elaborate discussion of the evidence, but as to that feature presents nothing which had not already received our careful consideration, and therefore we have nothing to add to our former opinion. Counsel further urge that the case of Potter Realty Co. v. Breitling, "Said mortgagors do hereby agree to keep up 79 Or. 293, 155 Pac. 179, cited in the original the payments of interest on said seventeen hunopinion herein, is inconsistent with the hold-dred and fifty dollars and furnish said mortgagee evidence of said payments of interest;" and "said Meades agree to reduce said mortgage to $1,600 within one year from this date."

ing of this court in Jones v. McGinn, 70 Or. 236, 140 Pac. 994, McGowan v. W. V. I. L. Co., 79 Or. 454, 155 Pac. 705, and Jeffreys v. Weekly, 81 Or. 140, 158 Pac. 522. A careful examination of these cases fails to sustain counsel's contention. In each of these cases there was prompt effort at rescission immediately after discovery of the fraud, while in the case of Potter Realty Company v. Breitling, supra, as in the case at bar, there was lack of promptness in repudiating the

It was also stipulated therein:

"This indenture is further conditioned upon the faithful observance by the mortgagor of the foregoing conditions."

Lastly, there appears also the following condition:

"Now, therefore, if the said mortgagors shall pay said promissory note and shall fully satisfy and comply with the covenants hereinbefore set forth, then this conveyance shall be void, but

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

otherwise to remain in full force and virtue as a mortgage to secure the payment of said promissory note in accordance with the terms thereof, and the performance of the covenants and agreements herein contained; it being agreed that any failure to make any of the payments provided for in said note or this mortgage when the same shall become due or payable, or to perform any agreement herein contained, shall give to the mortgagee the option to declare the whole amount due on said note, or unpaid thereon or on this mortgage, at once due and payable and this mortgage by reason thereof may be foreclosed at any time thereafter."

The execution and delivery of the note and mortgage sued upon are admitted. The defendants deny the allegations imputing to them a breach of their covenants. They recite the history of their original purchase of the land involved; the giving of a former mortgage thereon; the institution by the then mortgagee of a suit to foreclose; the an

swer setting up their contention that they had been induced to purchase the realty by reason of fraudulent representations concerning the quantity of bottom land in the tract; and their compromise and settlement of that litigation, the terms of which included the

Minnie A. Meade testified that on August 5, 1916, being more than one year after the date of the mortgage in suit, she applied to John R. Turner, who signed himself "administrator, C. W. Miller Estate," and procured from him a receipt for "$290, Act. Interest due 1915, and $150 principal on $1,750 notes." The defendants do not pretend that she ever exhibited this receipt to either the mortgagee or the plaintiff. Besides this, the record shows that it appeared for the first time at the trial. Moreover, she testified that she did not pay any money, nor give any note or check for the amount represented in the receipt. She does not claim that either the plaintiff or the original mortgagee had any knowledge of such an arrangement, or con

sented that it should operate as a reduction of the mortgage. The defendants argue that

sidered

anything which parties agree to may be conwhile possibly true as to the immediate paras payments; but that principle, ties to such a scheme, does not affect those the ones who are interested in the observconcerned in the present litigation. They are consideration here. As against the plaintiff ance of the conditions of the mortgage under the first mortgage. They claim that the mort-vent the collection of the full amount of the nothing has been shown which would pregage for $1,000 on the Tillamook property is

giving of the present mortgage resulting in

the dismissal of the suit and cancellation of

one in favor of the state land board, and that neither the principal nor the interest thereof is due. They say they have reduced the mortgage on the Multnomah county property to $1,600 as they agreed. They further contend that the taxes for 1915 were not yet

due under the terms of their mortgage, and those of 1913 were already paid by Beals, as stated by him when the compromise agree ment was entered into. The material matters in the answer are traversed by the re

ply. The circuit court heard the testimony and entered a decree foreclosing the mortgage, and the defendants appeal.

Multnomah mortgage, for it is clear that nothing was actually paid thereon.

[2] The mortgage to the state land board 4, 1906, due one year after date, with interest was given to secure a note dated September at 6 per cent. per annum, payable semiannually on the 1st day of January and the 1st defendants have paid no more than the interday of July in each year thereafter. The est, and they seek to charge upon the plaintiff the indulgence of the state land board in the effect of their covenant to pay the same, not foreclosing the mortgage so as to avoid and they do not plead that any new agree

ment was made between themselves and the plaintiff or the original mortgagee to that end. The note and mortgage to the state

S. S. Johnson, of Tillamook, and S. C. Spencer, of Portland, for appellants. H. T. Botts, of Tillamook (Webster Holmes, of Mc-land board are clearly due according to their Minnville, on the brief), for respondent.

BURNETT, J. (after stating the facts as above). [1] The plaintiff assigns as violations of the mortgage upon which he bases his right to foreclose that the defendants have neither paid the mortgage of $1,000 to the state land board incumbering the land, nor the interest thereon, nor have they reduced the Multnomah county mortgage to $1,600, and, moreover, they have not furnished to the mortgagee or the plaintiff any evidence of doing either of those things they were required to do. The third and fourth assignments relate to the failure of the defendants to pay the taxes for the years 1913 and 1915. It is unnecessary to consider more of these assignments than the first two. The only showing made by the defendants about the reduction of the Multnomah county mortgage

terms, and in the absence of any further contract between the present parties it was incumbent upon the defendants at once to pay that debt. Confessedly they have not done this.

Each of these defaults constitutes a breach of the covenants of their mortgage, and by its terms the holder thereof is entitled to foreclose the same for the full amount due upon the note and their agreements set out therein. These are the cold terms of the mortgage which they admit they made, but which the court cannot unmake for them. A great deal of rancor is manifest in the pleadings, and a very large part of the testimony is taken up in the rehearsal of the altercations of the parties, but all that cannot affect the law of the case. It is unnecessary to consider other reasons urged in support of the foreclosure.

circuit court is affirmed with this modifica- I their officers, agents, and employés, and the said tion that neither party shall be allowed to recover costs or disbursements from the

other.

cars striking the said decedent and throwing him
under the said train, and then and there in-
flicting mortal wounds resulting in his death.
"Plaintiff alleges that the defendants were and
each of them was negligent in the following par

MCBRIDE, C. J., and BENSON and HAR- ticulars: RIS, JJ., concur.

(87 Or. 695)

"First. That defendants and each of them recklessly, carelessly, and negligently failed and refused to provide and maintain the deceased, Lewis York, with a safe and proper place YORK v. SOUTHERN PAC. CO. et al. along their railroad and roadbed to do and (Supreme Court of Oregon. March 19, 1918.) perform the work and labor he was commanded MASTER AND SERVANT 289(31)-INJURIES and required to do, and did then and there furTO SERVANT-SCOPE OF EMPLOYMENT-NE-nish and maintain an unsafe and dangerous place and places for the deceased to perform CESSITY OF SHOWING. said work, in that there were rocks, holes, and ditches alongside of said railroad track and roadbed and at the place and places for switching car and cars in the said rock quarry.

Although the complaint alleged that it was the deceased servant's duty to help the train crew in making up a train, and that while helping in switching he was killed, there was no error in taking case from jury in the absence of evidence that as a part of his duties he was required to board the moving train in switching, in doing which he missed the step and was kill ed, since in the absence of such showing it was entirely conjectural whether deceased was engaged in his employment or in his own affairs.

Department 2. Appeal from Circuit Court, Tillamook County; George R. Bagley, Judge. On petition for rehearing. Denied.

For former opinion, see 170 Pac. 927. J. C. Simmons, of Portland (S. S. Johnson, of Tillamook, on the brief), for appellant. Ben C. Dey, of Portland (Wm. D. Fenton and Ralph E. Moody, both of Portland, T. B. Handley, of Tillamook, and John F. Reilly, of Portland, on the brief), for respondents.

MOORE, J. In a petition for a rehearing it is contended that from the testimony received it might reasonably have been concluded that the deceased, immediately prior to and at the time he was injured, was performing a service and discharging a duty de manded of him by reason of his employment, and, such being the case, an error was committed in not reversing the judgment and remanding the cause for a new trial. All the material allegations of the complaint respecting his duties and the negligence charged will be set forth. That pleading states: "Plaintiff alleges that on or about the 17th day of March, 1915, the decedent, Lewis York, was employed as a laborer on the defendants' line of road, * with his duties to help the train crew to make up a train, to cut out cars, and to dump cars, hauling and transporting rocks and like material on, along, and upon defendants' said road and roadbed, and while said decedent was performing the work, labor, and duties as was required of him, he was ordered and commanded and required to assist in cutting out cars from the train in which there were other cars, and setting brakes at what is known and called 'Miami Rock Quarry.' And while thus commanded to assist the said crew in performing the work for his master, he was then and there, at and along the said train, and the cars thereof, performing those duties commanded of him, and as was required of him, all of which were well known and within the knowledge of the defendants and each of them, and before he had safely

*

boarded said cars, the train was suddenly, violently and recklessly started, and was put in motion with a jerk and a lurch by the defendants,

"Second. That defendants and each of them recklessly, carelessly, and negligently started and put in motion the said train before the deceased, Lewis York, had given any signal or notice to start the same, it being then and there the duty of the defendants, agents and employés to not start the said train until signaled so to do by the deceased, Lewis York.

"Third. That defendants and each of them and put in motion said train before the deceased recklessly, carelessly, and negligently started had boarded it or was given any opportunity to board the same, and that the said train was then and there started with a jerk and lurch, thereby preventing the said deceased, Lewis York, from boarding the said car or cars in safety.

"Fourth. That defendants and each of them ing and running said cars at a high and danwas careless, reckless, and negligent in operatgerous rate of speed before allowing the deceased, Lewis York, to board the same, and thereby preventing the said Lewis York from any reasonable chance he might have had to get on said car in safety.

"Fifth. That the defendants were negligent in attempting to perform and make a flying switch at the place, while the same was then and there curve and a grade at the said place, and that the being done, for the reason that there was a conditions and manner in performing the same was unsafe and dangerous, which was known or could have been known by the defendants or either of them, their officers, agents, and employés, and that said flying switch used was not a necessity and could have been avoided by the defendants and each of them in carrying out their said business."

The complaint, it will be seen, does not aver that Lewis York was, when he was hurt, or ever had been, employed by the defendants or either of them as a brakeman, and a careful re-examination of the entire testimony fails to show a statement by any witness that the deceased had ever performed or discharged any duty of that kind.

It will be remembered that the second ground of negligence charges that it was incumbent upon the defendants, their agents, etc., not to start the train until signaled so to do by the deceased, thereby impliedly averring that he supervised or controlled in some manner the movement of the cars. Not a word of testimony to that effect or tending in any manner to substantiate such allegation can be found in the transcript.

the record before us that it was incumbent It nowhere appears from an inspection of upon the deceased to board the train, or that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the performance of any duty whatever was required of him in preparing the cars to make a flying switch, except so far as such service might possibly be inferred from the testimony of George Krumlauf, who stated upon oath at the trial that he saw Mr. York, just prior to the time of the accident, releasing the air from a cylinder beneath a car near the engine.

No testimony was received tending to show that it was at all dangerous for a person to pass over the decks of the flat cars when they were in motion, or that Mr. York was directed or even expected to set or handle the brakes on the rear or any other car of that part of the train.

mediate vicinity of the strip of land in question, and that if defendant blocks the alleged roadway, they "will suffer peculiar and irreparable damage to their several properties, in addition to and exclusive of that suffered by the general public." These allegations are denied by defendant except that he admits the ownership by three of the plaintiffs of lands in the vicinity. It is alleged and admitted by the pleadings that in 1882 Van B. De Lashmutt and Harrison B. Oatman acquired a large tract of land including the strip in dispute. In 1885 they conveyed 10 acres of this land to Hattie Murtha, from whom defendant deraigns title. The grant was qualified by the following language contained in the deed:

"Reserving a strip of land off from the west side thirty (30) feet in width, which is dedicated for a public roadway."

The Murtha title passed through mesne conveyances to defendant, each deed containing the language above quoted. The property in dispute is the westerly 9 feet of the strip

The evidence shows that from the trestle upon which the caboose and two box cars were left when the train was uncoupled to the switch was about 400 feet, and from that point to the rock quarry about 600 feet further. Why Mr. York attempted to board the moving cars, which were to be taken only such a short distance and left, is a matter of conjecture so far as disclosed by any tes-30 feet wide mentioned in all these deeds. timony. In the absence of such showing tend- In 1889 De Lashmutt and Oatman platted the ing to prove any allegation of the complaint, property adjoining the defendant's tract on we are compelled to adhere to the former the west, and dedicated a street 20 feet wide opinion. on the east of the plat as Van Ness avenue. The petition for a rehearing is therefore While defendant does not admit it, the evidenied.

dence shows that this street encroaches 9 feet on the strip reserved at the west end of

MCBRIDE, C. J., and McCAMANT, J., con- defendant's land. Plaintiffs claim to be own

cur.

(88 Or. 125)

JOHNSON et al. v. CRAWFORD. (Supreme Court of Oregon. March 19, 1918.) 1. DEDICATION 19(5) PLATTING AND SALE. When the owner of land plats it and sells lots with reference to the plat, he thereby dedicates the streets marked on the plat.

2. DEDICATION31-PLATTING AND SALE

"ACCEPTANCE.'

Where the owner of land plats it and sells lots with reference to the plat, the purchase of lots with reference to the plat constitutes an "acceptance" of the grant made by the owner to the public.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Acceptance.]

3. HIGHWAYS 159(2) ENJOINING OBSTRUCTION-SPECIAL DAMAGE.

ers of portions of the tract platted in 1889. They allege that the use of the strip is necessary as a means of access to the county road, and that it is constantly used as a roadway. Defendant disputes these claims and asserts title by adverse possession. Defendant's immediate predecessor in interest was Blanch McN. Moore. In 1908 she brought an action of trespass against three of these plaintiffs and against other parties, charging that they had destroyed her fence on the strip 30 feet wide on the west side of her property. This litigation reached this court, and was disposed of by Mr. Justice Burnett in an opinion in Moore v. Fowler, 58 Or. 292, 114 Pac. 472. In the instant case the lower court enjoined defendant from erecting and maintaining a fence on the tract in dispute, and adjudged that this tract is a public high

To enjoin the blocking of a roadway, plain-way. Defendant appeals. tiffs must show special damage to themselves as the result of the acts complained of.

In Banc. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge.

Action by Henry Johnson and others against Walter Crawford. From decree for plaintiffs, defendant appeals. Reversed, and

suit dismissed.

This is a suit brought to enjoin defendant from blocking a strip of land 9 feet wide and approximately 660 feet long which plaintiffs claim to be a roadway. Plaintiffs allege that they are owners of real property in the im

E. B. Dufur, of Portland, for appellant. Beach, Simon & Nelson, of Portland, for respondents.

MCCAMANT, J. (after stating the facts as above). [1, 2] When the owner of land plats it and sells lots with reference to the plat, he thereby dedicates the streets marked on the plat. Carter v. Portland, 4 Or. 339, 345; Spencer v. Peterson, 41 Or. 257, 259, 68 Pac. 519, 1108; Christian v. Eugene, 49 Or. 170, 172, 89 Pac. 419; Silverton v. Brown, 63 Or. 418, 424, 128 Pac. 45; Nicholas v. Title &