state does not argue them in its printed | tin, and to partition real property. It is albrief. The judgment is affirmed. leged in the complaint, in effect, that the plaintiff is the owner in fee and in the possession of an undivided one-half of lots 1, MOORE, C. J., and BURNETT and Mc- 2, 3, and 4 in section 21, township 4 south, BRIDE, JJ., concur.. (82 Or. 58) range 1 west, of the Willamette Meridian; that the defendant Libbie E. Hendershott is the owner of the other moiety thereof; that the defendant William M. Hendershott is the husband of Libbie E., and has no interest in the land, except an inchoate right of curtesy; that the defendant Napoleon Legault holds a mortgage upon Mrs. Hendershott's By L. O. L. § 799, subd. 26, there is a pre-interest in the premises; that in a former sumption that a person, not heard from by his acquaintances or any members of his family for more than seven years, is dead. ST. MARTIN v. HENDERSHOTT et al. (Supreme Court of Oregon. Oct. 17, 1916.) 1. DEATH 2(1)—PRESUMPTION OF DEATH FROM ABSENCE-STATUTE. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 1, 2; Dec. Dig. ~2(1).] suit, wherein John Arquette, Michel Arquette, and Margaret St. Martin, the plaintiff herein, were plaintiffs and William M. Hendershott and Libbie E. Hendershott, the defend 2. TENANCY IN COMMON 15(10)—ADVERSE ants herein, were defendants, it was decreed POSSESSION-SUFFICIENCY OF EVIDENCE. In suit between cotenants, to set aside a decree and to partition real property, evidence held insufficient to substantiate defendants' allegation of title by adverse possession with the degree of certainty required between tenants in common. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 51; Dec. Dig. 15(10).] 3. TENANCY IN COMMON 13-POSSESSION OF COTENANT-PRESUMPTION. Possession by one tenant in common is presumed to have been in the interest of all others. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 28, 29; Dec. Dig. 13.] 4. LIMITATION OF ACTIONS 21(1)—STATUTE OF LIMITATIONS-SIX-YEAR CLAIM. In an action between cotenants to set aside a decree affecting plaintiff, and to partition real property, where defendants claimed for half the taxes admitted to have been paid by them, the allowance, as an offset to plaintiff, of half the sum of $250 expended by her in securing patent for the land more than six years before, was error; the statute of limitations as to such claims having run before suit was instituted. that those defendants were the owners in fee simple of the entire premises, hereinbefore described, and that their title thereto was quieted as against each of such plaintiffs; that the plaintiff herein never engaged an attorney to represent her in that suit, nor did she know that she had been made a party thereto; that the attorney, naming him, who instituted the suit fraudulently neglected to appear at the trial, and the decree referred to was permitted to be given, of which this plaintiff had no knowledge until after the time to take an appeal had elapsed. The answer admits that William M. Hendershott and Libbie E., are husband and wife; that the latter is the owner of an undivided onehalf of the premises; that Legault holds a mortgage upon the land; and that the decree referred to was entered. It is further substantially averred that the plaintiff ought to be estopped to controvert the validity of such decree. For another defense it is alleged that William M. and Libbie E. Hendershott are the owners in fee of the entire tract of land described in the complaint; that they have been in the actual, open, notorious, exclusive, and adverse possession of the whole of such premises for more than ten years prior to the commencement of this suit, holding the land adversely to the plaintiff and to all other persons; and such defendants have paid the entire taxes imposed upon the real property for the years 1911, 1912, and 1913, amounting to $256.36, no part of which has been repaid. The reply [Ed. Note. For other cases, see Partition, denied all the allegations of new matter in Cent. Dig. §§ 236-245; Dec. Dig. 85.] the answer, except that Mrs. Hendershott Department No. 2. Appeal from Circuit was the owner of an undivided half of the Court, Marion County; William Galloway, land and the payment of the taxes stated. Judge. For a further reply it is alleged that in perSuit by Margaret St. Martin against Wil- fecting the title to the real property the liam M. Hendershott and others. From a decree for plaintiff, defendants appeal. Decree modified and affirmed. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. 88 90, 94, 96, 98; Dec. Dig. 21(1).] 5. PARTITION 85-IMPROVEMENTS. In suit between cotenants to partition real property, plaintiff, who made improvements on the land, building an addition to the house, which was burned, could derive no benefit therefrom. [Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 236-245; Dec. Dig. 85.] 6. PARTITION 85-IMPROVEMENTS. In suit between cotenants to partition the land, no allowance will be made plaintiff for trivial improvements. See, also, 151 Pac. 706. plaintiff had paid out more than $250, whch sum should be offset against the taxes so paid. The cause was tried, and from the testimony received the court made findings This is a suit to set aside a decree so far of fact and of law, and, based thereon, grantas it affects the plaintiff, Margaret St. Mar-ed the relief prayed for in the complaint, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and appointed referees to partition the land. I were "tenants in common and in possession From this decree the defendants appeal. H. B. Nicholas and W. C. Nicholas, both of Portland (R. W. Nicholas, of Portland, on the brief), for appellants. John Bayne, of Salem, and O. R. Richards, of Portland, for respondent. of the following described tract of land in said Marion county, Oregon, viz.," specifying the lots, section, township, range and meridian, "each owning an undivided half there of." Mr. Hendershott testified that he lived on the land until September, 1896, when his tenants took and held possession for him until September, 1901, when the house on the premises was burned before the ten years' adverse possession had fully run, but that Mrs. Edna Carpenter, who was then occupying the building in his right, left in another which she did not remove until the following domicile on the land some household goods January, thereby completing the full meas ure of the statute of limitations. He explains his several ineffectual attempts to purchase Mrs. St. Martin's interest in the real property by stating upon oath that he did not then know Mrs. Carpenter's possession fully completed the prescribed limit, thereby defeating the plaintiff's right. MOORE, C. J. (after stating the facts as above). An examination of a transcript of the testimony convinces us that the former suit was instituted and tried, and the decree rendered therein, without the plaintiff's consent, and that she had no knowledge thereof until the time for taking an appeal had expired. [1-3] Considering the defendants' alleged title to the entire premises by adverse possession, the evidence discloses that on July 10, 1896, a patent was issued by the United States to the heirs of Margaret Arquette, successors in interest of Louis Forcier, granting to them the real property described in the complaint. It also appears that the heirs of Margaret Arquette are her sons John, It is argued by defendants' counsel that Michel, Amab, and Isaac, and her daughter, the deed, executed by John Arquette and his Margaret, the plaintiff herein. Isaac Arbrother Michel to Mr. Hendershott, purportquette, so far as known, had no lineal de- ing to convey the entire premises, having scendants, and since he has not been heard been duly recorded, thereby imparted to the from by his acquaintances or any members of plaintiff notice of the grantee's assertion of his family for more than seven years, he is a claim to the whole tract of land, and that therefore presumed to be dead. L. O. L. since the statute of limitations had fully run 799, subd. 26. Mrs. St. Martin, Mr. Hender-before he applied to purchase her interest in shott and his wife, indulging this presump- the real property, his mistake of fact does tion, conclude the land should be apportion- not prevent an enforcement of his right, and, ed to the known surviving heirs, thereby such being the case, an error was committed giving to each originally an undivided one- in granting the relief awarded. We do not fourth of the premises. John Arquette and deem it necessary to consider the legal prinhis brother Michel, in the year 1889 deliver- ciples thus asserted, for an examination of ed possession of the real property to Hender- the testimony leads to the conclusion that shott, to whom on October 19, 1891, they ex- until the suit was instituted by John Arecuted a special warranty deed, purporting toquette and others against Mr. and Mrs. convey all such land. This deed was record- Hendershott, they never intended to claim ed February 8, 1892. Notwithstanding the or assert a title by adverse possession. This patent from the United States, evidencing a grant of the lands, was not issued until July 10, 1896, a tax was attempted to be imposed on the premises the preceding year, and by reason of the nonpayment thereof the real property was sold to P. H. Marley, and, no redemption having been made, the sheriff, on December 12, 1898, executed to the purchaser a tax deed. Marley on December 30, 1902, conveyed whatever interest he so obtained to H. L. Sagsvold. Mrs. St. Martin commenced an action of ejectment against Sagsvold, and obtained a judgment against him January 16, 1909, wherein it was determined she was the owner in fee simple and entitled to the immediate possession of an undivided onefourth of the real property described herein. Amab Arquette, on August 4, 1909, executed to Mrs. St. Martin a deed, conveying to her all his interest in the premises. Mrs. Hendershott, having become vested with all the title her husband had in the land, commenced a suit, February 16, 1912, against Mrs. St. deduction is manifest from an examination of the averments of the complaint in the suit brought by Mrs. Hendershott against Mrs. St. Martin to partition the land. It is also apparent from the cross-examination of Mr. Hendershott, who was asked: "Now, you and Mrs. Hendershott don't want to claim more than that half" of the land "now do you?" He replied: "Yes. Q. Why? A. Because, when they started in to beat us out of our share, we were going to fight on adverse possession; never would have been any question if they hadn't attacked our rights there not one bit; there is absolutely no question." On redirect examination of this witness the defendants' counsel, referring to the period of limitation and to the land, inquired: "During the ten years did you claim to own it?" He answered: "Why, I had a deed to the whole thing. Q. Notwithstanding it might be inferred from, 2. CRIMINAL LAW 1134(6)—APPEAL-DE the last reply that such a claim had been 96, 25 Pac. 362, 11 L. R. A. 155, 23 Am. St. CISION. circuit court holding unconstitutional an ordiOn the city's appeal from judgment of the nance under which defendant had been_convicted in municipal court, the Supreme Court must affirm, though the ordinance was constiwas innocent, since a sound ruling of the cir tutional, if the facts disclose that defendant cuit court as to guilt or innocence must be sustained, notwithstanding the Supreme Court's dissent from the reasons upon which it was made. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2991; Dec. Dig. 1134(6).] Department 1. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge. [4] The plaintiff testified that in securing a patent for the land and thus obtaining a E. J. Grals was convicted in municipal legal title to the premises she was obliged court of the violation of an ordinance of the to expend the sum of $250, one-half of which city of Portland, and from judgment for him the defendants agreed to refund, but that they had not paid any part thereof. It will on appeal to the circuit court, the state apbe remembered the reply seeks to offset such peals. Judgment aflirmed. part against the claim for one-half the tax- In the municipal court for the city of Portes, which is admitted in that pleading to land the defendant was convicted of the viohave been paid by the defendants. The pat-lation of a certain ordinance relating to the ent was obtained in 1896, and more than six years, the limit of the statute in such claims, had run against the demand before this suit was instituted. That claim was therefore barred, and an error was committed in allowing any part of it as an offset. [5, 6] The testimony shows that the plaintiff made some improvements upon the land, the chief of which was an addition to the house; but, as this building was burned, the plaintiff can now derive no benefit therefrom. The other improvements were trivial, and no allowance will be made therefor. For the error committed in offsetting the plaintiff's claim against that of the defendants, the decree is modified so as to require her, as a condition precedent to partition of the premises, to pay to the defendants onehalf of $252.36, the sum laid out by them on account of taxes. In all other respects the decree is affirmed. BEAN, BENSON, and MCBRIDE, JJ., concur. (81 Or. 545) CITY OF PORTLAND v. GRAHS. (Supreme Court of Oregon. Oct. 17, 1916.) 1. CRIMINAL LAW 1179-APPEAL-INCOмPLETE RECORD. height of fences. He appealed to the circuit court. The result of the hearing in that tribunal was the following judgment: "Now at this time this matter coming on for hearing, upon appeal from the municipal court of the city of Portland, wherein the defendant was fined the sum of $25 for a violation of section 483 of Ordinance No. 29916, being entitled an ordinance amending section 483 of Ordinance No. 21455, as heretofore amended, and the facts having been stipulated herein, and the court having considered said ordinance and the facts, as stipulated, and being fully advised in the premises, finds that said section 483 of said ordinance is unconstitutional and void, and it is therefore, hereby considered, ordered and adjudged that the said complaint or action filed herein against the defendant be and the same is hereby dismissed, and it is further ordered and he is released from further liability herein." adjudged that the defendant's bondsman be and The city has appealed. Stanley Meyers, of Portland (W. P. La Roche, of Portland, on the brief), for appellant. O. A. Neal, of Portland (Wilson, Neal & Rossman, of Portland, on the brief), for respondent. BURNETT, J. (after stating the facts as above). [1, 2] There is no bill of exceptions. All we have before us is a copy of the original complaint in the municipal court; the judgment there; the notice of appeal to the circuit court and its attendant undertaking; the judgment of the latter tribunal already On appeal from judgment of the circuit court dismissing complaint against defendant quoted; and the notice of appeal on behalf for violation of a city ordinance after convic- of the city, with its undertaking. In such tion by the municipal court, where the only a condition of the record we cannot determine papers before the court were a copy of the orig- whether the decision was erroneous or not. inal complaint, judgment in the municipal court, notice of appeal to the circuit court and the It may have been that the facts stipulated undertaking, the judgment of the circuit court, did not disclose an offense against the muthe notice of appeal on behalf of the state and nicipal enactment. We are not concerned its undertaking, the Supreme Court cannot determine whether the decision of the circuit with the reason given by the court for its conclusion. If, indeed, the facts disclosed that the defendant was innocent we would be compelled to uphold the decision of the cir court was erroneous. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3001; Dec. Dig. 1179.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This was an action to recover money. The basis of the action is a contract, set out in the complaint, and reads: "Joseph Supple having entered into a subcontract with the Portland Iron Works for the building of steel hulls, trusses, ladders, etc., as furnishing of all labor and material and for the well as all carpenter and wood work, for the cuit court, although the judge put it on the ground that the defendant was baldheaded, and hence entitled to favorable consideration. In paraphrase upon the language of Mr. Justice Field in Pennoyer v. Neff, 95 U. S. 714, 722, 24 L. Ed. 565, if this position is sound the ruling of the circuit court as to the guilt or innocence of the defendant must be sus-two United States engineers' dredges Multno'tained, notwithstanding our dissent from the reasons upon which it was made. It is the duty of the appellant to put his finger on substantial error in the judgment as a result of the trial. It avails him nothing to quarrel with the argument of the court if the final determination may be right. Owing to the paucity of the record we cannot settle whether the ultimate conclusion of the court was erroneous or not, and hence the judgment must be affirmed. mah' and 'Wahkiakum,' hereby enters into an agreement with Robert Wakefield, whereby on consideration hereinafter mentioned: "Joseph Supple agrees to prepare the ways, false work and scaffolding, at the yards of the O.-W. R. R. & N., known as the 'Boneyard,' for the building and erection of the two dredg es above named, and deliver f. o. b. cars, all of the steel work for hull, fabricated and ready for erection, but not riveted, nor bolted up, and all of the steel work for trusses and ladder, fabricated and riveted, but not assembled. "Robert Wakefield agrees that he will receive this material from cars, and will furnish his own means and apparatus for unloading the MOORE, C. J., and McBRIDE and BEN- material, storing same until wanted, and erect SON, JJ., concur. (82 Or. 595) WAKEFIELD v. SUPPLE. (Supreme Court of Oregon. Oct. 17, 1916.) 1. APPEAL AND ERROR 1015(3)-REVIEWNEW TRIAL. The trial court having the power, within the time allowed, to set aside a final determination and order a new trial when it discovers a mistake of law has been made which would necessitate a reversal on review, the question to be considered on appeal from an order allowing a motion to set aside a verdict and judgment, and for a new trial, because of error committed by overruling a motion for nonsuit and a motion for a directed verdict for defendant because an alleged oral modification of an original written contract was not established, is whether the evidence received in respect to the alleged oral modification was sufficient to authorize a submission of the cause to the jury. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3866; Dec. Dig. 1015(3).] CIENCY. In an action to recover compensation for additional work done, not contemplated in an original written agreement, but alleged to have been authorized by a subsequent parol modification of the written contract, evidence of conversations and correspondence between the parties held insufficient to go to the jury as tending to establish that the alleged subsequent oral agreement modifying the written contract was made. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 1140; Dec. Dig. 248.] Department 2. Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge. Action by Robert Wakefield against Joseph Supple. Judgment for plaintiff, and, from an order allowing defendant's motion for a new trial, plaintiff appeals. Affirmed. and assemble same in place, in accordance with the plans and specifications, approved for this work, by the United States engineers. "That he will do all of the bolting up, riveting, caulking and testing, to the satisfaction of the inspector, and in accordance with these plans and specifications. "Joseph Supple will furnish all labor and material necessary for blocking, staging and all tools and all gears for handling and rigging launching. It being herewith reiterated, that of all steel work of whatever nature, will be wood work and material and labor for foundafurnished by Robert Wakefield, and that all tiors will be furnished by Joseph Supple, except that used for hoisting and hoisting gears. "In consideration of the above agreement, Joseph Supple agrees to pay Robert Wakefield, fifteen dollars ($15.00) for every ton of hull material erected and put together, and seven and one-half dollars ($7.50) per ton for the assembling of the trusses and ladders. weight on cars shall be ascertained from the R. "It is mutually agreed on, that the actual R. Co., and that these weights shall be taken as basis on which Robert Wakefield shall make his charges. "Joseph Supple agrees to make payments to Robert Wakefield, at the time and at the rate, as he receives his payments for work completed from the Portland Iron Works. "It is particularly understood between the two contracting parties, that the same condiferred to, as well as the conditions of the contions of the terms of the specifications above retract entered upon between Joseph Supple, and the Portland Iron Works, as far as they prevail, and that any dispute as to the interpretation of these specifications and contract, shall be subject to the decision of the inspector representing the contracting engineer of the U. S. government. "Inasmuch as Joseph Supple has entered into a subcontract with the Great Lakes Engineering Company, of Detroit, Michigan, to fabricate for him the steel hull material above mentioned, and inasmuch as this last-named company is responsible for the proper fabrication of the material, in accordance with the specifications and plans, and have agreed to have one of their men present while the work of erection and assembling is under way, it is hereby agreed that Robert Wakefield hereby accepts the guarantee furnished Joseph Supple by the said Great Lakes Engineering Works, and agrees to take up and settle with said representative, any discrepancies which may be discovered on the work and material, and make his own agreements for extra charges for the correction of any possible changes or mistakes "Portland, Ore., Feb. 11, 1913. "[Signed] Joseph Supple. before set forth. That when the delivery of the material was thus delayed, and the plaintiff discovered the extra amount of work required, and learned of Ballin's financial interest in the profits which he was to obtain, the plaintiff informed the defendant of the falsity of his agent's representations, called attention to the faulty condition of the material, and to the amount of work necessary to assemble and prepare the parts, and informed him of the resulting delay and damage which the plaintiff would sustain by reason thereof. "That thereupon the defendant orally requested plaintiff to enter upon and complete the work of erecting said materials in place, and thereupon agreed orally with plaintiff that he (defendant) would pay plaintiff whatever the work and labor was found to be reasonably worth at the conclusion of said work, taking into account all the facts and circumstances in connection with the work, including the delay, and agreed to pay plaintiff the reasonable worth and value of any materials furnished by plaintiff. That, in reliance upon said oral promise, this plaintiff did completely erect and assemble all materials in place for said two hulls upon the dredges 'Multnomah' and 'Wahkiakum' and furnished various materials therefor. the work, labors, and materials so furnished That the reasonable worth and value of by plaintiff to defendant upon said two hulls is the sum of $29,408.98, of which defendant has paid only $8,785, leaving a balance due plaintiff in the sum of $20,623.98, which balance and any part thereof defendant refuses to pay, and said defendant refuses to recognize that this plaintiff has any rights in the premises other than the rights fixed in the written contract hereinbefore referred to, and said defendant refuses to consider with plaintiff, plaintiff's rights in the premises, and defendant renounces and denies plaintiff's rights in the premises." The initiatory pleading charges, in effect: That when the plaintiff entered into that agreement he had been and was a bridge builder and was unacquainted with the construction of any part of a ship or the cost of doing such work. That the defendant for a long time had been engaged in shipbuilding and knew the plaintiff was not familiar therewith, and that he relied upon the representations made by the defendant and his agents in relation thereto. That, when informed of the plaintiff's want of knowledge in these particulars, the defendant advised him to consult with Fred Ballin, a shipbuilding engineer who had prepared the plans for the dredges and was to have charge of the construction thereof and upon whose word he could rely. That plaintiff thereupon conferred with Ballin, who informed him that the steel plates to be used in building the dredges would arrive in Portland, Or., with all the smaller parts riveted to the larger portions in such manner as to be conveniently shipped by rail and plaintiff would be required only to bolt and rivet the larger sections together on the job; that the material to be used would be free from rust, each piece plainly marked, all plates to be calked would be beveled-sheared; that all punched holes would be reamed so as to countersink the rivet heads; that all necessary bolts would be supplied by the defendant; that The answer denied most of the material plaintiff would be required to drive only averments of the complaint, and particularly about 150 rivets to the ton of material; and with respect to the alleged misrepresentathat all the plates would be painted before tions mentioned. For a separate defense, the delivery. That the plaintiff believed and re- answer sets forth the circumstances attendlied upon each of these representations. That ing the making of the contract and alleges at the time they were made Ballin was in- that the plaintiff received from the Great terested with the defendant in whatever Lakes Engineering Works, which corporation profits the latter might make under his con- furnished the material that was used in contract for constructing the dredges, of which structing the dredges, various sums of monpartnership the plaintiff had no knowledge. ey as compensation and settlement for changThat immediately upon signing the contract es necessitated in the material furnished, and the plaintiff engaged mechanics and laborers, assembled his machinery, and notified the defendant of his readiness to commence work on the dredges, but no material therefor was delivered until June 15, 1913, when that which arrived was not connected in any manner. That no bolts were furnished. That it was necessary for the plaintiff to drive 240 rivets to the ton of material. That the members thereof were not marked for identification. That the punched holes did not fit one with another and were not reamed, and that material was rusty and unpainted. That at the time Ballin made such representations he knew they were false and uttered them with intent to defraud the plaintiff and to induce him to enter into the contract herein Judgment was demanded for the sum of $20,623.98. for the mistakes in the fabrication thereof, and thereupon he agreed to withdraw his claim for extra compensation on account of reaming and countersinking, and by reason thereof he is now estopped to assert or claim that any sum is due him therefor. Other matters are set forth in the answer as further defenses. The reply put in issue the allegations of new matter in the answer, and based on these issues the cause was tried, resulting in a verdict and judgment for the plaintiff in the sum of $4,500. Upon application therefor, it was determined in part as follows: respective counsel, being fully advised, and be"The court, after hearing arguments of the ing of the opinion that error was committed during the trial by overruling the motion for |