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Effinger & Bourne, for appellants.

Geo. H. Williams and P. L. Willis, for respondents.

WATSON, C. J. A brief statement of the facts, without reference to the pleadings, will sufficiently disclose the important question to be passed upon by this court. On July 27, 1881, the respondents duly authorized the appellants, W. P. Watson & Son, real estate agents, to sell certain personal and real property, situated at The Dalles, for not less than $47,500 net cash to them; the said agents to have as commissions all beyond said sum. The time given was until August 25, 1881. This authority and the extension of time are both in writing. The other appellant, Clark, claims by assignment from W. P. Watson & Son. On the last day given by extension the appellants produced one Henry D. Green as a purchaser of the property upon the terms as to price specified in such written authority, at Portland, Oregon. Green professed to be both able to pay the price agreed upon, $50,000, and willing to do so if the respondents would allow him a reasonable time to examine the title to the property upon the county records of Wasco county, at The Dalles, so that he might be advised as to whether the respondents could convey a perfect title thereto. This the respondents refused to accede to, but tendered him a deed for the property, which he refused to accept for want of an opportunity to make such an examination without the allowance of the additional time asked for the purpose. The question is made here as to the sufficiency of the respondent's title at that time.

Upon this state of the facts, which is taken as true, for the purposes of a decision in the case, did the appellants become entitled to the stipulated commission? It seems plain to us that they did not. Granting that their contract only bound them to find a purchaser both able and willing to take the property and pay for it, and present him to the respondents within the time specified, did they perform such obligation on their part? They certainly did not. Their alleged purchaser, Green, was not willing to become bound finally as a purchaser within the time, and actually refused to so bind himself. He entered into no contract with the respondents, and made no offer to do so. Time, it seems to us, was the very essence of the engagement between the parties. A reasonable time for the examination of the title to property offered for sale cannot be implied in a case like the present, where the limit for acceptance is definitely fixed and settled by the terms of the offer itself. The appellants were bound to have produced a purchaser not only able, but willing to consummate the purchase within the stipulated time, to meet their own obligation and entitle themselves to the commission. It was for them to furnish the party desiring to make the purchase such opportunity for examining the title as he might require within the time allowed them by the owners for effecting a sale. Neither they nor the party

desiring to purchase could claim a further extension of time for the purpose, as a matter of legal right. The facts in the case show that they did not perform their part of the agreement with the respondents, and that there was no waiver on the part of the latter of their right to a strict and literal performance.

If the position which the appellants are compelled to take to sustain their action be tenable, then every proposition to sell real property by a specified day may be kept open, against the will of the party making it, after the day has passed, for an indefinite period, to enable parties desiring to purchase to examine the title and finally determine whether to purchase or not, and without being under any legal obligation to do so, no matter what the result of such examination may be.

The law decisive of the point, aud with it the entire case, must be regarded strictly elementary. The appellants never performed their agreement at all, and the respondents have nowhere waived their right to such performance, nor prevented the appellants from fully complying with their engagement. It would be idle to consider whether there could be any legal claim for commissions under such circumstances.

The judgment of the circuit court is clearly right, and should be affirmed.

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Under section 883 of the Civil Code, as amended, if either party to an action before a justice resides in the precinct where the action is commenced, and personal service is had upon the defendant in any precinct of that county, the court acquires jurisdiction.

In such an action service of summons by the constable of the court in which the action is commenced, is valid in any precinct of the county.

Appeal from Coos county.

Wm. R. Willis, for appellant.

S. II. Hazard, for respondent.

WATSON, C. J. This appeal is from a judgment of the circuit court annuling a judgment of the justice's court and directing restitution in a proceeding upon a writ of review. The action in which the vacated judgment was rendered was commenced in Coquelle City precinct, but the constable's return simply shows personal service of the summons in the county. There is nothing in the record showing the residence of either party to have been in the precinct where the action.

was begun. Judgment was rendered on default. The only important questions for this court to pass upon arise from these facts.

Applying the well-settled rule with regard to the records of inferior courts, and the questions presented are: (1) Whether a justice's court, without regard to the residence of the parties to an action commenced in it, acquires jurisdiction to render judgment by personal service of the summons on the defendant in any other precinct in the county than that in which the action is brought. (2) Whether service of the summons in such action by the constable of the precinct in which such court is holden, in any other precinct in the county, is valid.

The views expressed in the opinion of this court in Craig v. Mosier, 2 Or. 323, and Sloper v. Carey, 9 Or. 511, if adopted here, would require each of these questions to be answered in the affirmative. But in neither case were these points directly involved, and consequently neither has any binding force as a precedent. The views so expressed, however, appear to be entirely sound.

The decision of the questions presented by the record here must be determined by the construction of section 883 of the Civil Code and section 9 of the Justice's Code. Section 883 had been amended when this action was begun. The changes thus made in the section as originally enacted are extremely significant, and the intention of the legislature very clearly expressed. Under the original section the justice's court had jurisdiction where the defendants, or either of them, resided, in the precinct where the action was brought. Civil Code 1864. But under the section as amended jurisdiction exists where either party resides in the precinct where the action is commenced, or the defendant is a non-resident, or where personal service of the summons is obtained in any precinct in the county. Civil Code 1872. The general purpose to enlarge the jurisdiction is apparent throughout the amendment, and the language denoting the enlargement in the lastmentioned case is quite clear and explicit.

There is no rule of construction which would justify a restrictive interpretation of the general terms in which the jurisdiction is conferred, and no good reason is apparent for not allowing them a fair and full operation. Section 9 of the Justice's Code authorizes the service of a summons from a justice's court by the constable of the precinct in which the court is held. The foregoing observations equally apply here. The power conferred is general, and without any express limitations, and no ground for implying any can be perceived. But the power to serve generally must be construed as co-extensive with the jurisdiction acquired by the court by such service itself. Crocker, Sheriffs, 1019; Mills v. Kennedy, 1 Johns. 502; People v. Garey, & Cow. 644; Legg v. Stillman, 2 Cow. 418; Gurnsey v. Lovell, 9 Wend. 322.

The court holds, therefore, that the record of the justice's court showed jurisdiction and a valid judgment. The judgment of the circuit court should be reversed.

(11 Or. 286)

NORTHERN PACIFIC TERMINAL Co. v. LOWENBERG and others.

Filed March 18, 1884.

The undertaking for appeal must be filed with the clerk of the court from whose decision the appeal is taken, within ten days from the service of the notice of appeal. The failure in this instance to comply with this requirement is ground for dismissal of the appeal.

To assign as error "that the court erred in admitting certain testimony and excluding other testimony, as is fully stated in the bill of exceptions herein filed," is not sufficient; the particular error relied upon must be specified.

Appeal from Multnomah county.

Fechheimer & Ach, for appellant.

Joseph Simon, for respondent.

PER CURIAM. This is a motion to dismiss the appeal upon the grounds: (1) The notice of appeal was not served and filed in the lower court within the time allowed by the statute providing the mode of taking appeals to this court; (2) the undertaking for the appeal was not given within the period prescribed by such statute; (3) there is no assignment of error in the notice of appeal.

The transcript shows that the judgment attempted to be brought here for review was entered August 15, 1883, and that the notice of appeal was served on February 14, 1884, but not filed in the lower court until the day following. The notice of appeal, however, describes the judgment as having been made and entered August 14, 1883, but the description given in the notice is otherwise sufficient to fully identify the judgment, and demonstrate the mistake as to the date of its entry. The undertaking appears not to have been filed until February 25, 1884.

The only assignments of error in the notice of appeal are that the court below erred: "(1) In admitting certain testimony, as is fully stated in the bill of exceptions herein filed; (2) in excluding certain testimony, as is fully stated in said bill of exceptions."

The statute requires the undertaking for appeal to be filed with the clerk of the court, from whose decision the appeal is sought within 10 days from the service of the notice. Civil Code, 527. It is plain that this provision was not complied with in this instance. The 10 days expired on February 24, 1884, while the undertaking was not filed until the day after. And the objection to the sufficiency of the assignments of error is also well founded. The particular error relied upon must be specified. This has so often been ruled by this court that no further examination of the principle seems necessary. State v. McKinnon, 8 Or. 485.

It is clearly not sufficient to assign error generally in admitting or excluding testimony, as shown by the bill of exceptions. The first ground

stated in the motion to dismiss is obviated by an inspection of the record itself. From that the service and filing of the notice of appeal appear to have taken place within the time prescribed by the statute. Eut upon both the second and the third grounds the motion to dismiss must be sustained. The appeal is dismissed.

(11 Or. 282)

OREGON RY. Co. v. BRIDWELL and another.

Filed March 18, 1884.

Where the necessity of the right of way for a railroad, and the damages resulting therefrom, are the only issues presented to the jury, a verdict deter nining the amount of damages necessarily includes the determination of the issue as to the right of way being necessary, and is suflicient to support a judgment.

The proper form of judgment in such a case is one appropriating the right of way to the company upon payment of the damages assessed, and not a judgment in personam against the company for the amount.

An improper judgment may be reversed without disturbing the verdict, and the court instructed to issue one in proper form thereon.

Daly & Butler, for appellant.

Truitt & Johns and W. H. Holmes, for respondents.

WATSON, C. J. This is an action under the statute for condemning a right of way for a railroad. The necessity for the right of way and the damage resulting from its establishment were the only issues submitted to the jury. The jury found for the defendants in the sum of $2,700, and a judgment was entered thereon in their favor, in the common form, for the recovery of the sum found for them by the verdict. The plaintiff, the railroad company, appeals, and assigns for error (1) the insufficiency of the verdict to support any judgment; (2) the improper form of the judgment actually entered. The verdict finds, in effect, that the respondents are entitled to damages in the sum named therein. This finding necessarily includes the determination of the issue as to the right of way being necessary to the appellants, as well as the issue as to the amount of the respondents' damages.

The respondents were not entitled to any damages unless the appellant was entitled to have the right of way condemned to its use, and finding the former necessarily included a determination of the latter. White v. Bailey, 10 Mich. 155. The judgment entered upon. the verdict is not, however, in proper form. No judgment in personam against the appellant was permissible. The only judgment the court was authorized to render was one appropriating the right of way to the appellant's use after payment of the damages assessed by

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