nonsuit and overruling the motion for a direct-ing details and descriptions of the work, I deed verdict for defendant and that a new trial should be granted, it is therefore ordered that the motion to set aside the verdict and judgment, and for a new trial, be and the same is hereby allowed." From this order the plaintiff appeals. rived my information for the work required from Fred A. Ballin. At the time our contract was signed it was expected that the steel would arrive in a few days. The last four cars of this steel arrived yesterday, being about two months later than expected and the other cars having been strung along one at a time made it necessary to keep a force of men on hand in readiAr-ness to unload this material and adding additional expense to the cost of the work. It was Coy Burnett, of Portland (McKinley Kane, of Madras, on the brief), for appellant. thur Langguth and Henry L. Lyons, both of Portland, for respondent. MOORE, C. J. (after stating the facts as above). [1, 2] In Smith Typewriter Co. v. McGeorge, 72 Or. 523, 143 Pac. 905, it was held that when the trial court, within the time allowed, discovers that such a mistake of law has been made at the hearing of a cause as would necessitate a reversal of the judgment if brought up for review, such final determination may be set aside and a new trial ordered. To the same effect, see, also, Rudolph v. Portland Ry., L. & P. Co., 72 Or. 560, 144 Pac. 93; Frederick & Nelson v. Bard, 74 Or. 457, 145 Pac. 669; McGinnis v. Studebaker, 75 Or. 519, 146 Pac. 825, 147 Pac. 525, L. R. A. 1916B, 868; Delovage v. Old Oregon Creamery Co., 76 Or. 430, 147 expected that erection bolts would be furnished Supple July 12, 1913, an excerpt is taken as follows: Pac. 392, 149 Pac. 317; Pullen v. Eugene, 77 Or. 320, 146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474. Predicated upon this rule, difference between the job we are doing and the "I have written to you repeatedly stating the the question to be considered is whether or job we contracted to do. The contract expressnot the evidence received in respect to the ly states that the material is to be fabricated, alleged oral modification of the original con- which I understand, means ready to put togethtract was sufficient to authorize a submissioning the thing entirely all over, or in other words er, while the actual work we are doing is reamof the cause to the jury. The rule is settled there has been no work done except merely that the terms of a written contract may be punching and a very poor job at that. The maaltered by a subsequent parol agreement of terial is badly marked so that it is very difficult the parties. Pippy v. Winslow, 62 Or. 219, of the material that should be put together unto find the pieces that belong together and lots 125 Pac. 298; City Messenger Co. v. Postal der the clause 'Fabrication' is shipped loose, Tel. Co., 74 Or. 433, 145 Pac. 657. The plain- little pieces of angle 2x2, 4 to 6 ft. in length. I tiff's testimony tends to support the aver- differences but do not seem to get any direct have written you a great many times about these ments of the complaint in respect to the de- results from them other than, 'will make it all lay occasioned by failing to deliver the mate- right in the end' but there is so much to be made rial within the time expected, and also as to right that I think we ought to have an underthe extra amount of labor necessitated by we agreed in our contract to leave our differstanding now. I am perfectly willing to do as reaming the punched holes in the plates. In ences to the inspector for the government, Mr. a letter which he wrote to the defendant Baxter. The clause in the contract referring to May 28, 1913, in referring to these matters, your having an agreement with the Great Lakes Engineering Company for the fabrication in which they are responsible for the proper execution of the same, their representative disclaims any responsibility for mistakes and says that the reaming is especially excluded from their contract." he says: "Of course, this long wait has caused me considerable expense, as I have had to keep men within call and keep a plant down there ready at all times to unload the material. I think I am entitled to some compensation for all this delay and should be pleased to hear from you in the matter, as I do not wish to be unreasonable or make any unreasonable demands. Further, when I took the work it was expected that the erection bolts would be furnished with the material. I have had to furnish these bolts and think it would be no more than right that you should pay for them, as I took the work at a very low figure. As there is considerable of the material on hand now, we have started to get it together and think we should have some understanding about the lost time that has passed before going any further." Plaintiff on June 11, 1913, again wrote the defendant as follows: "I am assembling and riveting hulls for the two government dredges, the work having been undertaken, as per my contract of February 11, Replying to this communication, the defendant on July 14, 1913, wrote the plaintiff a letter from which extracts are taken, viz.: "Dear Sir: Your favor of the 12th inst. duly noted. You state that you have written a number of letters regarding our contract for the building of the two government dredges, and that I have failed to answer them in writing. Permit me to state that as far as differences are concerned, there is no need to take up any generalities. inasmuch as the contract itself, states *** very definitely and positively what part of the lection for the correction of any possible changes The complaint charges: or mistakes discovered, due to faulty fabrication "That upon the discovery by plaintiff of the on the part of the Great Lakes Engineering delay in delivery of said materials and members Works. * ** *You further state, that I made and its condition, and the amount of work reyou understand that I would 'Make it all right quired to erect and assemble said materials in in the end,' implying that I acknowledged that place and upon discovery by plaintiff that said there was something to make all right. I wish Ballin was financially interested with said deto dispel this impression emphatically, as so fendant in the profits to be made from said confar nothing has appeared on which you could tract, this plaintiff informed defendant" therebase any claims against me under our contract. of; and "that thereupon the defendant orally reI did say and meant to say, that where you quested plaintiff to enter upon and complete the could show that I owed you any money in the work of erecting said materials in place, and end, I would pay you, provided you could make thereupon agreed orally with plaintiff that he the right kind of a showing. I under- (defendant) would pay plaintiff whatever the stand from Capt. Haight, representing the G. work and labor was found to be reasonably L. E. W., that he is willing to correct any mis-worth at the conclusion of said work." takes made in fabrication.' The testimony shows that it required about three weeks to transport a carload of the material used in the construction of the dredges from Detroit, Mich., where it was 'fabricated,' to Portland, Or. William Wakefield, the plaintiff's son, testified that the first carload was sent out from the factory March 18, 1913, and the last carload on May 21st of that year. The first carload should have arrived about April 10, 1913, when the The quotations from these letters partly express the dispute existing between the parties. It appears from the testimony that the plaintiff sustained a financial loss by reason of the delay in delivering the material; that he was hindered in the performance of his work in assembling the parts because the numbers placed thereon were worn off by transportation; and that he was hindered in attempting to find, or in procuring, sub-plaintiff evidently discovered that the smaller stituted parts. The evidence shows that Mr. Wakefield settled with C. M. Haight, the representative of the Great Lakes Engineering Works, from whom he received a credit for extra work. What sum was thus accounted for is uncertain. Mr. Haight stated upon oath that $135 was so credited, while S. R. Booth, who as bookkeeper had charge of the plaintiff's office, testified the plaintiff "received something like $300 for these extras that cost him about $20,000." It will be taken for granted that the plaintiff's testimony was sufficient to be submitted to the jury as tending to substantiate the averments of the complaint with respect to the existence of a partnership between the defendant and F. A. Ballin, whereby the latter was to have received a consideration for personally supervising the work of construcing the dredges. It will also be assumed that Wakefield's testimony was adequate to go to the jury as tending to establish the allegations of the primary pleading as to Ballin's asserted representations, though such imputed declarations are denied by him. His financial interest in the contract and his alleged falsification of material facts to the plaintiff might show an inducement to modify the written contract. While such incentive could afford a valid reason for altering the original agreement, it is insufficient by itself to sanction a change in any of the terms of the writing. In Barber v. Toomey, 67 Or. 452, 463, 136 Pac. 343, 346, Mr. Justice Ramsey says: "In order to establish a contract, the evidence should show when, where, and with whom the contract was made, and the terms thereof." A transcript of the testimony given at the trial of this cause, consisting of 812 pages, has been carefully read and considered; but from such research we have been unable to find any witness who testified to a modification of the original agreement. parts of the material had not been bolted or riveted to the larger members, and that the marks that had been placed on the plates had been worn off in transit. An examination of the letter from Wakefield to Supple, July 12, 1913, wherein it is stated, "I have written you a great many times about these differences, but do not seem to get any direct results from them other than, 'will make it all right in the end,' but there is so much to be made right that I think we ought to have an understanding now," will show that on that date no definite oral agreement had been made. On his direct examination the plaintiff's attention was called to the language thus employed, and he was asked by his counsel: "Now, I wish you would tell the jury what conversations you had with Mr. Supple wherein he told you he would make it all right in the end, if any." The witness replied: ing to differences in the way the material was A. 160 PACIFIC REPORTER longation of the delivery was working a serious The testimony shows, however, that the only exact promise made by the defendant was to the effect that if he made any money by building the dredges, and the plaintiff lost any, in performing his part of the agree ment, Supple would aid Wakefield. Thus Mr. Supple, as a witness, was directed by his counsel: "Tell the jury what conversation you had with Mr. Wakefield over extras or over this contract in which he said something about suing you, and when was that?" The defendant replied: "Well, that was along, as near as I can remember, about four weeks or so before I paid him the last payment. would have to sue me. He says, 'Well, Joe, you He said he guessed he are going to make a whole lot of money off of this.' We were both standing out there, and I think Mr. Clark was standing there, and he (the plaintiff) says, 'I am losing money on it, and I think I will have to sue you.' He had told me that before. I said, 'Well, Mr. Wakefield, if you will push this thing along, and I make any money off this job, and you don't, I will help you out.' Now, that is what I said to him. Q. What did he say then? A. He said, 'All right, we will let it go at that.'" This testimony is corroborated by that of C. M. Haight, who quoted Mr. Wakefield when the latter on September 24, 1913, referring to the adjustment of what he considered unusual amounts with respect to constructing the hulls of the dredges, said: "But, Joe, you don't think for a moment that I ought to pay for all these extra bills? Whom did he mean by Joe'? A. Mr. Supple. Q. Mr. Supple sat right across the table from Mr. Wakefield, and Mr. Supple says, 'Well, you go ahead and rush this work through, and I don't know but what I am going to be at a loss the way the work is dragging on; and when the work is finished, if I have made any money and you show you have lost money, I will make it right with you.' Assuming, without deciding, that such a promise is enforceable, the testimony as to the avails received by the defendant under the terms of his contract with the Portland Iron Works to build and finish the dredges, except to furnish and install the machinery, shows that he lost money in complying with the terms of his agreement. The defendant, speaking of this matter and of Mr. Wakefield, testified as follows: "Now, I didn't suppose I had to help him out, or I didn't owe him anything; but I would divide up with him; I would help him out if I made anything and he didn't. Q. Did you make anything, or did you lose? A. I I am out over $13,000 in hard-earned money. I didn't get it out of any extras there either; and all through their fault with dilly-dallying along with the work. Q. What was the reason? A. Because they (the plaintiff and his employés) did not push the work ahead. They misrepresented the thing to me; said they had tools and men and everything and they would push this thing right along, and they only had a few tools and nothing like men enough to build a boat (Or. one-quarter the size of either one of those in A. F. Tarilton, the defendant's bookkeeper, was asked: made or lost money on this contract, yes or no? to have received compensation for supervis- Mr. Ballin also testified that he made no misrepresentation to the plaintiff, but informed him generally of the nature and extent of the work required to be performed, and delivered to Mr. Wakefield a set of the completed plans before the contract was consummated. [3] An examination of the testimony conmodified by any subsequent oral agreement; vinces us that the written contract was never that the evidence received on this branch of the case was insufficient to be submitted to the jury as tending to establish the averment of the complaint in this particular; and that no error was committed in setting aside the verdict and judgment. It follows that the order of the court complained of is affirmed. cur. (82 Or. 108) CORMACK v. CORMACK et al. (No. 118.) (Supreme Court of Oregon. Oct. 17, 1916.) MUNICIPAL CORPORATIONS 484(1)—STREET IMPROVEMENTS ASSESSMENTS PRESUMP assessment for street improvement, and everyThe charter of Portland, declaring that an thing connected therewith, shall be presumed executive board shall fix the time in which an regular till the contrary is shown, and that the improvement shall be completed and may extend it if the circumstances warrant, an assessment cannot be held void, merely because the work there being no evidence that the executive board, which accepted the improvement, did not seawas completed four days after the time limited, sonably extend the time, which it could do on its attempted to extend the time after completion motion, though it appears that the city council of the work. Corporations, Cent. Dig. § 1137; Dec. Dig. Multnomah County; J. P. Kavanaugh, Judge. plaintiff, defendant City of Portland appeals. | completing its undertaking. Declaring the Reversed and rendered. This is a suit to determine an adverse claim to real property. The allegation of the complaint concerning the realty is as follows: "That plaintiff now is and for a long time past has been the owner of the following described real property, situated in Multnomah county, state of Oregon: Lot 14 in block 40, Rosemere, an addition to the city of Portland." This averment is denied by the answer, but the defendant Ordemann admits that he has an adverse claim to the premises. Affirmatively he alleges matter through which he became the owner and holder of a certificate issued by the city treasurer in pursuance of a sale to satisfy a delinquent assessment for a street improvement. The reply denies the transfer to the defendant Ordemann of the certificate and controverts the regularity of the action of the treasurer, but otherwise admits the allegations of the answer. The reply further gives a history of the street improvement, in which it is said that: certificate null and void, the circuit court entered a decree in favor of plaintiff according to her prayer, and the defendants appeal. L. E. Latourette, of Portland (Frederick De Neffe, of Portland, on the brief), for appellant. Fred L. Everson, of Portland, for respondent. BURNETT, J. (after stating the facts as above). Certain excerpts from the charter of the city of Portland are here set down: "Sec. 404. In any action, suit or proceeding in any court concerning any assessment of propor the collection of such tax or proceeding conseerty or levy of taxes authorized by this charter, quent thereon, such assessment, levy, consequent proceeding, and all proceedings connected therehave been duly done or taken until the contrary with shall be presumed to be regular and to is shown." After the council passes an ordinance for making any improvement, the control of the proceeding according to the charter passes to a body called the executive board to advertise for proposals for making the improvement and to make contracts for the faithful completion of the work. In section 379, we find the following: to fix the time in which every such improvement "It shall be the duty of the executive board shall be completed and it may extend such time should the circumstances warrant. The said board shall have power and authority to make all written contracts, * * to provide for the proper inspection and supervision of all work do any other act to secure the faithful carrying done under the provisions of this article, and to out of all contracts, and the making of improvements in strict compliance with the ordinances and specifications thereof." "The contract, among other things, provided that the said work should be fully completed within six months from the time the said contract was entered into; that the said work was not completed within six months of the time the contract was entered into and was not completed until the 4th day of November, 1913; and that no application was made by the said Oregon Independent Paving Company for an extension of time within which to complete the said work." From the admissions in the pleadings and the stipulation of facts we derive the following résumé of the situation: Late in 1912, the council of the city of Portland regularly passed an ordinance providing for the improvement of certain streets, designat- Section 380 provides, in substance, that, ing the same as district improvement No. upon consummation of any improvement to 251; plaintiff's property being within the his satisfaction, the city engineer shall certiassessment district and liable to taxation fy his approval thereof to the auditor. The to pay for the betterment. On April 30, 1913, | latter officer in turn publishes a notice of the city contracted with the Oregon Inde- the completion, stating when the acceptance pendent Paving Company for making the of the improvement will be considered by improvement, and thereafter, in pursuance the executive board, at which time or prior thereof, the company completed the work, thereto any property owner may file objecwhich was subsequently approved and ac- tions to the same. If upon consideration cepted by the council. The contract, "among of the grounds of opposition it appears to other things, provided that the said work the board that the job has not been finished should be fully completed within six months in accordance with the specifications and from the time the said contract was entered contract, "the board shall require the same into." In fact, it was not finished until to be so completed before accepting it." November 4, 1913, and the contractor made After the executive board accepts an imno application for an extension of time; provement, thenceforward the proceedings but on the date last mentioned the city are ministerial, consisting of the entry by council granted the contractor an extension the auditor of the assessment upon the dockto that day to complete the work. There- et of the city liens, his certification to the after the city authorities took regular pro- treasurer after a certain time of delinquent ceedings to enforce the assessment as by assessments, and the sale by that officer of the charter provided, resulting in the sale the property for the satisfaction of the lien. already mentioned, and it is the outstanding certificate of sale which is the basis of the adverse claim to plaintiff's property. It is agreed that the certificate was finally transferred to the city. The only defect in the whole procedure of which complaint is made is that the contractor was four days late in From the record it appears that the plaintiff made no protest whatever against the proceeding ripening into the assessment until she commenced this suit. She did not embrace her opportunity to appear before the executive board as she might to object to the acceptance of the work. Under the require ments of section 404, already quoted, the bur-ment for an improvement, the only objection den is upon her to point out a fatal defect to which is that it was not completed until in the procedure. The presumption of its four days after the time provided therefor regularity attends the action of the munici- seems to have elapsed, when we are able pal authorities until the contrary is shown. to presume that the executive board extended In this respect the charter is a restatement the time, and that, too, while the term of the of the general rule that, where jurisdiction contract was yet unexpired. is shown to have attended the inauguration of a proceeding, it is safe from collateral attack except for defects which make it absolutely void on its face. If therefore the procedure under consideration appears to be consistent with what rightfully might have been done, it is immune from the attack aimed by this suit. The decree of the circuit court is reversed, and one here entered dismissing the plaintiff's suit. MOORE, C. J., and MCBRIDE and BENSON, JJ., concur. In Duniway v. Portland, 47 Or. 103, 112, 81 Pac. 945, 948, Mr. Chief Justice Wolverton, treating of objections to a city improve-1. ment, said: "But, however this may be, the council, as we shall see presently, presumably passed upon the objections, and the plaintiffs are now precluded from again raising the issue in this collateral way, except it be shown that the council has itself proceeded fraudulently"-citing authorities. In Hendry v. City of Salem, 64 Or. 152, 129 Pac. 531, Mr. Chief Justice McBride said: "The proceedings for making this improvement seem to have been entirely regular, and the council had jurisdiction to order the improvement and to enter into the contract. This being the case, mere irregularities in the method of carrying on the work will not be sufficient to re The council lease the property owners from the obligation of (81 Or. 548) STATE v. MISHLER. An indictment charging that defendant, being trustee of certain money for benefit of M., did, with intent to defraud, unlawfully, convert it to his own use and benefit, being in the language of L. O. L. § 1962, denouncing the crime of wrongful conversion of property by a trustee, is sufficient. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 291-294; Dec. Dig. 110(13).] 2. EMBEZZLEMENT 28 · INDICTMENT — DeSCRIPTION OF MONEY-CONVERSION BY TRUSTEE. It is enough for an indictment under L. O. L. § 1962, for conversion by a trustee to charge the conversion of "$10,000," without alleging what kind of money it was; section 1448, subd. 6, declaring an indictment sufficient if the act charged as a crime is stated with such a degree of certainty as to enable a person of common understanding to know what is intended. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 41, 42; Dec. Dig. 28; Indictment and Information, Cent. Dig. § 279.1 In Banc. Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge. Demurrer was sustained to indictment against Adam J. Mishler, and the State appeals. Reversed, and remanded for trial. The defendant was indicted under section 1962, L. O. L., for the crime of wrongful conversion of property by trustee. Said section is as follows: No reference is made by the plaintiff to any act of the executive board. The prerogative of that body to fix the time for the completion of the work was invaded by the council when it put into the ordinance the provision on that point. In that respect the ordinance is not controlling in the issue here. For aught that appears, as it might properly have done, the executive board may have extended the time for the completion of the undertaking. It matters not that the contractor made no application for such an indulgence. In its capacity as general director "If any person, being the trustee of any property for the benefit of another, or for any public of the undertaking the executive board could or charitable use, shall, with intent to defraud, have extended the time on its own motion so by any means convert the same or any portion as to bind the city and ultimately the tax- thereof to his own use or benefit, or to the use payer. It was the contract, and not the and benefit of another not entitled thereto, such person, upon conviction thereof, shall be punishordinance, that controlled the parties on thated by imprisonment in the county jail not less feature. Like all other contracts, the parties than three months nor more than one year, or by to the same by their lawfully authorized fine not less than $50 nor more than $1,000." agents could waive or modify any of its requirements or make a new contract within the scope of the authority of the representa"Adam J. Mishler is accused by the grand jury tive. Until the contrary is made to appear of the county of Marion and state of Oregon, by this indictment, of the crime of conversion by by the complaining party, under the prece-trustee committed as follows: The said Adam dents and charter cited, we must presume in J. Mishler on the 25th day of July, A. D. 1914, aid of the proceeding that all this was done. in the county of Marion and state of Oregon, The complaint does not disclose any injury the benefit of Henry J. Miller, did then and then and there being the trustee of $10.000 for to the rights of the plaintiff. It would be there with the intent to defraud unlawfully coninequitable to grant her exemption from pay-vert said $10,000 to his own use and benefit." The material part of the indictment is as follows: |