made therefor, and that he had. by filing notice, perfected a lien on the lot. The defendant, after admitting his ownership of the lot, denied all other allegations of the complaint. The trial court found that the plaintiff, without authority, and against defendant's consent, entered upon the lot and removed dirt therefrom; that the defendant frequently warned him to keep off; that the defendant never entered into any contract for the removal of any dirt; and that plaintiff was a trespasser. From a judgment in favor of the defendant, the plaintiff has appealed.

The only question on this appeal is whether the findings are sustained by the evidence. Although some conflict exists. we are able to conclude from all the evidence that the findings are not sustained. As the preponderance of the evidence seems to be with the defendant, we cannot disturb the findings made by the trial judge, who saw the witnesses and was in a position to determine their credibility.

The appellant contends that even though it be conceded that the respondent did notify him to keep away from the lot, and cease work thereon, such notice was not given until after three-fourths of the grading had been done, that respondent had theretofore knowingly permitted him to almost complete the work, and that he should now be estopped from denying an implied contract for the work or his obligation to pay. Were appellant's statement in this regard clearly sustained by the preponderance of the evidence, his contention would not be without merit. While it is true that the respondent on two occasions in the presence of witnesses notified appellant to keep away from the lot and cease work, after a large percentage of the grading had been done, the testimony of the respondent shows that he himself at other and previous times had given like notices to appellant. There is evidence which, although rather indefinite, tends to show that appellant, who was doing large amounts of grading on the streets, and other property abutting respondent's lot. needed the dirt being removed, which he was selling to third parties. It also appears that, while it was his custom to obtain written contracts for grading done by him, he had failed to secure any

J. B. EHRSAM & SONS MFG. CO. v. JACKMAN.

(Supreme Court of Kansas. Jan. Term, 1906.) Petition for rehearing denied. For former opinion, see 85 l'ac. 559.

BURCHI, J. In a petition for a rehearing, it is suggested that the first paragraph of the syllabus is broad enough to indicate an approval of the third conclusion of law made by the trial court. The syllabus is, of course, based upon the situation of the parties disclosed by the record, and so considered can scarcely be misinterpreted; but, to relieve the apprehension of counsel, it may be said the court did not feel that it was called upon to determine the correctness of the conclusion referred to.

The parties have not acted under the contract. The contract provides for a test run of the mill, to be made with wheat of a specified quality. The plaintiff has not insisted that the defendant furnish wheat of contract quality for a test. The defendant has not arranged for a test with wheat of that quality. No test of the character prescribed by the contract has been made. The defendant has not waived a test according to the contract. Therefore the defendant's obligation has not been matured, as the contract requires.

The fourth conclusion of law made by the trial court is correct as applied to the test run which the contract contemplates.

Manifestly the court must here take leave of the controversy. Further discussion of the grading of wheat in the vicinity of the mill in 1903 would be bootless; and the petition for a rehearing is denied. All the Justices concurring.

(50 Or. 111)

SCOTT v. WHITE et al. (Supreme Court of Oregon. Aug. 20, 1907.) 1. TRUSTS-RESULTING TRUSTS-EVIDENCE.

In a suit to enforce an alleged resulting trust in certain land, evidence held insufficient to sustain a finding that plaintiff and defendant W. purchased the land jointly, under an agreement that the actual cost of the land was $7,000 and that plaintiff should be entitled to a certain portion of the entire tract on that basis, but to require a finding that defendants, acting as real estate brokers, sold so much of the land as plaintiff desired in a single tract on a basis of $7.000 for the entire tract, and themselves took the balance of the tract in detached portions under their option to purchase the entire tract for $5.000.

2. JOINT ADVENTURES-ACCOUNTING.

Plaintiff and defendant. W., who was a member of a firm of real estate brokers having an option to purchase a tract of land for $5,000, contracted to buy the land on a basis of $7,000, under an agreement providing that if plaintiff and defendant W., within 60 days after the payment of the earnest money, paid the balance of $6,850, the owner's agent agreed to convey the land, etc. Held, that such agreement bound W. and plaintiff to pay the owner $7.000 for the land, and hence the fact that W. thereafter avoided fulfilling is part of the obligation by exercising an option held by his firm did not create a liability on W.'s part to account to plaintiff for the amount saved.

547 of the 740 acres conveyed by him to White; that plaintiff be decreed the owner in fee of that amount of the land. and that defendant White be decreed plaintiff's trustee thereof; and that plaintiff have judgment against defendants for his share of the proceeds of any of the land sold by them since the making of the partition. The defendants by general denial traversed the complaint, except as thereinafter alleged. The further averments are, in substance, that defendants were and are partners engaged in a real estate business at Medford, Jackson county; that at and for a long time prior to March 15, 1903, they had an option for the purchase of the property described in the complaint at the price of $5,000; that on that date it was agreed between plaintiff and defendants that plaintiff should purchase, under defendants' option, as much of all of the property as he might thereafter desire and be able to pay for, upon a basis per acreage of $7,000 for the entire tract; that defendants would purchase the rest of the property at their own price, and pay all commissions and expenses necessary for the carrying out of the deal; that prior to the agreement plaintiff had examined the property, and at the time was willing to purchase as much of

Suit by William Scott against John F. White and another. From a decree in favor of plaintiff, defendants appeal. Reversed.

This is a suit to impress upon certain lands held by defendants a resulting trust, arising out of an alleged joint purchase by plaintiff and defendants of a larger tract, of which the land in question was a part. It is alleged, in substance, that about March 15. 1903, defendants proposed to plaintiff that they jointly purchase of A. L. Dickinson 2,105.82 acres of land in Jackson county and that defendants entered into such an agreement with plaintiff; that defendants concluded the negotiations for the purchase of the land, and falsely and fraudulently represented to plaintiff that the purchase price thereof was $7,000, whereas they paid but $5.000, of which amount plaintiff furnished $1,542 and defendants $458; that, after the purchase was made, plaintiff and defendants partitioned the land between themselves, the former receiving 1,365.82 and the latter 740 acres; that plaintiff, relying upon the representations of defendants that the purchase price of the premises was $7.000, conveyed to defendants 740 acres of land as their share, and lefendant White conveyed to plaintiff 1,365.82 acres as his share, defendants representing to plaintiff that such division was in proportion to the respective amounts which each had contributed to the purchase thereof; but it is alleged that defendants contributed only $458. The prayer is that defendants account to plaintiff for

upon a basis of $7,000 for the entire tract, and that defendants agreed that they would cause to be conveyed to plaintiff by the owner as much of the land, at the rate herein specified, as he would pay for, and that the defendants would take the balance under the terms of their option: that. in accordance with the terms of the contract, defendant caused the owner to convey all of the land to plaintiff and defendant White; that White assisted plaintiff to procure the amount of money necessary to pay for his portion of the land; and that, after the conveyance of the property to them jointly, they partitioned it in the proportion stated in the complaint. By his reply plaintiff denies each affirmative allegation in the answer, "except such thereof as are not in controversion of plaintiff's complaint herein, and except the allegation thereof that defendant White assisted plaintiff in obtaining money," etc. The cause having been tried before the court, findings were made in favor of plaintiff, on which a decree was entered, decreeing plaintiff to be the owner in fee of 547 of the 740 acres deeded by him to defendant White, and that the latter hold the same in trust for plaintiff. Judgment was also awarded plaintiff against the defendants for $1.182.72 as his share of the proceeds from the sale of 200 acres of the disputed land made by White before the commencement of this suit. From this decree and judgment, defendants appeal.

A. E. Reames. for appellauts. R. L. Mattingly, for respondent.

SLATER, C. (after stating the facts). It does not appear by any express averment of the complaint what were the terms of the agreement, if any, between plaintiff and defendants, under which plaintiff claims they jointly bought the property. Whether they were to contribute equally towards the purchase price, and share in the same proportion the advantages of the purchase, or whether one should contribute more than the other, and a different division of the fruits of the transaction be made, is not alleged; but there is the bare allegation that they agreed to jointly purchase a tract of land. But from his subsequent averments it seems to have been assumed by the pleader that the plaintiff was to have an equal advantage with defendants, and that there was to be a division in proportion to the amounts contributed by each toward the purchase price of the land. Hence it is alleged, in effect, that defendants, in making the partition, broke their agreement and by fraud and deceit have obtained an unfair advantage over plaintiff and deprived him of his proportionate share of the land. Assuming that such was the issue framed by the pleadings, we are of the opinion that the plaintiff has not sustained that issue by that preponderance of clear and satisfactory proof as a court of equity always requires to establish fraud upon another. Plaintiff not only has the burden of proof of the issue. but the charge must be proved by clear and satisfactory evidence. In such a case the degree of proof required is, perhaps, enhanced by the reason of the latitude allowed in admitting evidence to prove fraud. Freeman v. Topkis, 1 Marv. (Del.) 174. 40 Atl. 948. "A party, therefore, relying upon the establishment of a cause of action or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt in order to maintain his claim. When evidence is capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with that of his guilt, the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent." Morris v. Talcott, 96 N. Y. 100.

Plaintiff has endeavored to bring himself within the case of Kroll v. Coach, 45 Or. 459, 73 Pac. 397, 80 Pac. 900, where it was held that a person having exclusive information relative to a proposed purchase, offering others an opportunity to take an interest and share the anticipated advantages on equal terms with him, is bound to act with entire truthfulness and good faith toward them in the matter, and if he derives a personal gain by deceiving them he is accountable as a trustee ex maleficio, on the legal theory that such person thereby assumes a relation of

trust and confidence towards the intending purchasers. Opposed to this theory is the contention that the parties were dealing with each other at arm's length and as strangers to any fiduciary relation. In that case neither of the parties were in the business of real estate agents, but they were seeking to jointly buy from another for their own advantage. The facts of this case are that early in the year 1903 plaintiff came to the town of Medford, seeking a new home, and wishing to invest in timber lands. He there became acquainted with defendants, who were partners in a real estate business, and to whom he disclosed his intentions. They had shown him different pieces of property which they had for sale as agents for others; but, none of these suiting plaintiff, they suggested to him the Donegan tract, which they had for sale, comprising 2.105.82 acres, and consisting of four separate tracts situate in the same vicinity. This land belonged to one Dickinson, a nonresident of Oregon, who had come into the ownership of it by foreclosure of a mortgage, and thereafter had employed Geo. W. Hazen, of Portland, as his agent to sell the land, as well as A. E. Reams, an attorney, of Medford, who had foreclosed the mortgage, and, since bidding it in for plaintiff, had had immediate charge of the land, had been renting it, collecting rents, paying taxes thereon, and endeavoring to find a purchaser in conjunction with Hazen. In February, 1903, they had offered the place through defendants as agents for $6,000; but, failing to get a sale at that price, Reams gave to defendants the privilege of buying or selling the tract as an entirety at the price of $5,000. Plaintiff testifies that at the inception of his dealing with defendants they told him they could sell him this tract at $4 per acre and make a good commission, that defendant White took him to view the land with the object of making a sale, and that after having looked it over White asked him what he thought of it, to which he replied: "It looks cheap at $4 per acre, and if I had the money I believe I would buy it." And then White said: "That is our fix. If we had the money, we would buy it ourselves." Up to this point plaintiff confesses that he was dealing with defendants at arm's length, that he knew they were real estate agents, and were acting as agents for others, and that they were expecting a profit or commission out of this land by procuring a purchaser for the whole of it; and hence at that time no relationship of trust or confidence could have existed between them. But at this point plaintiff claims that defendants voluntarily abandoned the position they occupied of dealing with him at arm's length, and, surrendering all claims for commission or profits, they took him into their confidence. It is manifest that to establish such á case the evidence should be clear and convincing.

Plaintiff further testified: That White

then proposed to him: "What is the matter with our buying it together?" To which plaintiff replied: "My money is pretty well tied up back East. I don't know as I can." That White then said: "If you want to go in with us, we will let you in on the ground floor. We won't charge you any commission." That plaintiff then asked, "What will be the purchase price, then?" to which White replied, "$7.000 for the entire tract," and to which plaintiff said, "If I can have 60 days to get my money, I will go in with you." Plaintiff further testified: That White procured 60 days' time by paying to C. L. Reams, brother of A. E. Reams, as a forfeit, the sum of $150, of which plaintiff furnished one-half and defendants one-half. That White obtained from C. L. Reams, as Dickinson's agent, a receipt in the following form: "$150.00. Jacksonville, Oregon, Mar. 19, 1903. Received from John F. White and William Scott the sum of one hundred and fifty dollars, which sum of money is accepted under the following conditions: If the said White and Scott shall, within a period of sixty days from this date, time being the essence thereof, pay or cause to be paid to me the full sum of $6,850, I agree to make, execute, and deliver to them a good and sufficient deed for the 2,105-acre tracts of land, in Jackson county, Oregon, known as the 'Donegan Tracts,' and now owned by me. I agree that in case I am unable, within 60 days or at the time the said $6,850 is tendered to me, to have the title clear and free from incumbrances, that I will refund the said sum of $150 to the said White and Scott; but in case default should be made in the tendering of the sum of $6,850 within the said 60 days from this date, time being the essence thereof, then the said $150 shall belong to me and be my property, and shall be considered as liquidated damages to me. It is understood by the said White and Scott that the premises are under lease to S. F. Godfrey." That plaintiff then, through White's assistance, made arrangements to borrow from a local bank the amount of money he might need. Before the expiration of the 60 days plaintiff and defendants agreed to divide the land between them, the former to take 1,365.82 acres in one body, and the latter to take 740 acres, which was in three separate and detached parcels. When the time came to pay for the land, plaintiff handed White his check for $4,467, which, together with the $75 initial payment, made $4,542 for his share of the land, at the rate of $7,000 for the entire tract; but defendants in fact paid to Hazen at Portland no more than $5,000 for the entire tract. In preparation for the final conclusion of the sale C. L. Reams, through Hazen, had obtained from Dickinson a deed, which he executed on May 13, 1903, conveying the entire tract to N. E. Ross, a stenographer in Hazen's office, for the express consideration of $5,000, which deed was placed in escrow

and, on that amount being deposited for Dickinson, N. E. Ross conveyed the land to defendant White and plaintiff, for the express consideration of $7,000, when in fact nothing was paid to N. E. Ross. After receiving the title White and Scott exchanged deeds, dividing the property between them as had been previously agreed upon; but the latter contends that the division was made by him. under the belief on his part, induced by statements of defendants upon which he says he relied, that they were paying $7,000 for the entire tract. Opposed to this is the contention of defendants that they neither agreed with plaintiff "to take him in on the ground floor and charge him no commission," as testified to by plaintiff, nor represented to him that they were to pay $7,000 for the land, but that, they having an option to buy the land for $5,000 in the entire tract and learning from plaintiff that he would not be able to buy and pay for all of it at the price first named by them, they proposed to him to let him have as much of the land as he might wish and could pay for at the rate of $7,000 for the entire tract, and that they would take and pay for the remainder at their own terms, under their option; that plaintiff at first did not know how much of the land he might be able to pay for, and hence the amount that he did finally take was not ascertained by them at the time the agreement was made, but was ascertained later: that when the division was made plaintiff, having his choice, took what he wanted and all he wanted, leaving to them the most undesirable part of the land in three separate and detached pieces. Defendants admit that they concealed from plaintiff the fact that they paid no more than $5,000 for the entire tract, for they say they were not bound to make any disclosure to him on that matter, because they were not acting as his agents, but were in fact selling to him under their option.

It thus appears that the testimony of the parties to the suit is directly in conflict. Plaintiff relies for corroboration upon a series of letters which passed between Hazen and C. L. Reams relative to this transaction, which discloses no more than an attempt on their part to conceal the actual amount to be paid by defendants for the land; but it is not shown that what they did or said was done at the instance or request of defendants, and hence their statements are not binding upon defendants. They are not parties to this cause, nor privy to the contract with plaintiff on which this suit is based, and therefore their statements cannot be considered. The primary issue to be determined here is: What was the contract between plaintiff and defendants, on which their subsequent transactions were based? Did defendants agree to take plaintiff in "on the ground floor," as he says, and give him an equal chance or share in the profits of the purchase from Dickinson? Or did they sell him as much

of the land as he could pay for at the rate of $7,000 for the entire tract? When this issue is settled, the entire case is determined. We find the plaintiff's testimony, with slight, if any, corroboration, standing in support of his contention, as opposed to the testimony of both defendants; and while both Trowbridge and White on the witness stand deny plaintiff's statements as to the terms of the contract, and also affirmatively state their understanding of the same, the latter fails to deny the defendants' statements, although he was called as a witness in rebuttal. Trowbridge testified that he first made the arrangements with plaintiff for the sale to him of as much of the land as he might thereafter ascertain he could pay for at the rate of $7,000 for the entire tract, and that White concluded the transaction. White confirms this testimony; but plaintiff, while he details his conversation with White, fails to deny Trowbridge's testimony as to the contract made with him. It also appears to our satisfaction from the evidence that in making the division of the land the parties did not act in conformity with plaintiff's theory of the contract by sharing equally in the advantages of the purchase, but rather in conformity with defendants' theory. Plaintiff had his choice of selection, taking the larger and better part of the land, which lies in one compact body and bordering upon the river, distinct advantages for the surrender of which defendants would receive no equivalent if plaintiff's theory was to prevail, while there was left to defendants as their portion three detached tracts of upland of inferior quality, none of which bordered on the river. We must therefore conclude, under the law as hereinbefore announced, that he has failed to make out a preponderance of the testimony in his favor by clear and satisfactory proof. Moreover, it would appear that defendants were either acting as agents for Dickinson or as purchasers from him, and in either event, from the terms of the receipt taken by White from Dickinson's agent, they in fact made themselves liable to him for $7,000 for the entire tract; and if they in some manner have avoided the fulfillment of that liability it would not create any cause of complaint in favor of plaintiff against the defendants. The decree should be reversed, and one entered here dismissing the complaint.

(50 Or. 142)

STATE v. WALTON. (Supreme Court of Oregon. Aug. 27. 1907.) 1. CRIMINAL LAW-APPEAL-RECORD-ILEA. It being essential to a conviction of a felony that defendant be arraigned and plead or refuse to plead, the fact of his pleading or refusing to plead must affirmatively appear in the record.

[Ed. Note. For cases in point. see Cent. Dig. vol. 15. Criminal Law, § 2753.]

2. SAME-RT RDS-AMENDMENT.

While t. records of the court. as kept by the clerk, may be amended to conform to the

facts, it must be presumed that no record of the proceedings could be made other than as disclosed by the records as shown by the transcript on appeal. State v. Gilbert (Or., unreported) quoted with approval.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2901-2910.] 3. SAME-PROCEDURE.

The public has an interest in the trial of all persons accused of a crime, from which it follows that in proceedings involving the deprivation of the life or liberty of a person that which the law makes essential cannot be dispensed with or affected by either the express or implied consent of the accused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 614, 615.]

4. SAME-NECESSITY OF ARRAIGNMENT AND

PLEA.

Under B. & C. Comp. § 1328, providing that the arraignment must be made by the court or by the clerk or district attorney under its direction, and consists in reading the indictment to defendant, and delivering him a copy, and asking him whether he pleads guilty or not guilty, and section 1364, providing that, if the demurrer to the indictment be disallowed, the court must permit defendant, at his election, to plead, which he must do forthwith, or at such time as the court may allow; but, if he do not plead, the judgment must be given against him, it is essential to a conviction of a felony that defendant be arraigned and that he plead or refuse to plead.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 612.]

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Charles W. Walton was convicted under an indictment charging assault and robbery, and appeals. Reversed, and new trial ordered.

Henry St. Rayner, for appellant. G. C. Moser, Deputy Dist. Atty., for the State.

KING, C. On September 1, 1904, an information was filed by the district attorney against defendant, Chas. W. Walton, charging him with assault and robbery of one Emmanuel Johnson. It appears from the rec ord that on the following day the information was read to defendant and a copy thereof handed to him, after which, on his request, he was given two days in which to plead. On the day fixed to plead a demurrer was filed, which, on October 5th following, was overruled, succeeded three weeks later by defend-. ant's trial and conviction. After verdict, written objections to the sentence were filed, on the ground that defendant had not been fully arraigned, not having at any time answered, nor been given an opportunity to answer, as to whether he was guilty or not guilty, which were overruled, and defendant sentenced to 20 years' imprisonment.

It is immaterial whether the motion filed was intended as a motion in arrest of judgment, or an objection to further proceedings, as its contents are sufficient to call the court's attention to the alleged irregularity in the trial, and to constitute an objection to the imposition of the sentence pronounced. We are then confronted with the question as to whether the entry of a plea on behalf of the defendant is essential to the trial of one ac