to the interpretation above indicated; and received, but never credited on the defend. such is the effect of the principles in that ants' account, and for that reason the claim respect enunciated in the former proceed- did not contain a true statement of the plaining. tiff's demand, after deducting all offsets, thereupon dismissing the suit, and it appeals. John A. Buchanan, for appellant. There is some evidence to the effect that defendants dammed one of the outlets of Round Lake, the object of which is not clear, but evidently for the purpose of keeping out the carp, or to prevent the diminution of the lake. In either event their right to do so cannot be upheld. The lakes and other waters must, so far as consistent with the right to hunt thereon, be left in their natural state. The decree of the court below will therefore be reversed, and one entered in conformity with these views. The costs in the trial court will not be disturbed; plaintiff to have her costs on appeal. MCBRIDE, J., having tried the cause in the court below, took no part in this decision. (55 Or. 271) MOORE, C. J. (after stating the facts as above). The testimony shows that M. L. Buley, having contracted with the defendants to build for them a house, secured from the plaintiff the material therefor. The defendants made payments to Buley on account of the contract, and from the money so received he delivered to the plaintiff, at the times alleged in the answer, the sums specified therein, but it gave him credit therefor on his own personal account. The original check executed to the plaintiff December 28, 1906, by Buley, has been brought up, and it appears therefrom that the phrase "Snell Job" is written on the face thereof. The agents of the plaintiff who received the order drawn on the bank and gave Buley credit therefor on his personal account severally testified that when the check was handed to them it did EUGENE PLANING MILL CO. v. SNELL not contain the memorandum referred to and et ux. (Supreme Court of Oregon. Jan. 11, 1910.) MECHANICS' LIENS (§ 281*)-ENFORCEMENTSUFFICIENCY OF EVIDENCE. Evidence held to show that the amount demanded had been paid by defendants' contractor to plaintiff and that plaintiff had credited the amount to the contractor's account instead of to defendants' account. [Ed. Note. For other cases, see Mechanics' Liens, Dec. Dig. § 281.*] Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge. Action by the Eugene Planing Mill Company against Edward Snell and Laura A. Snell, his wife. Defendants had judgment, and plaintiff appeals. Affirmed. This is a suit by the Eugene Planing Mill Company, a corporation, against Edward and Laura A. Snell to foreclose an alleged lien for material furnished by the plaintiff to a contractor who used it in the construction of a house for the defendants. The sum demanded in the complaint, aside from attorney's fee and expense, is $204.75, no part of which, it is alleged, has been paid. The answer denies the material averments of the complaint, and states that the following payments were made on account of the material received, to wit, December 28, 1906, $75; and January 19, 1907, $80; and that no credits had been given therefor. The defendants deposited with the clerk of the lower court at the disposal of the plaintiff $84, which sum, it is asserted in the answer, was tendered to it prior to instituting this suit. The reply put in issue the allegations of new matter in the answer, whereupon the cause was referred, and, from the testimony taken, the court found that the alleged payments were which now appears thereon.. Buley, as a witness, was unable to say whether or not the words "Snell Job" were written by him. He testified that he gave the plaintiff's agent a check for $75 and also $80 in money. He was thereupon asked, in referring to such sums and to the defendants' indebtedness to the plaintiff: "Was that paid on this account?" To which he replied: "That is what I told him it was for. I don't know whether it was credited on that or not. Q. But you say you told him it was for that? A. Yes, sir." C. F. Somars, plaintiff's agent, as its witness, testified he was positive that when Buley's check was delivered to him it did not have written thereon the words "Snell Job." Referring to the payment of the sum of $80, this witness said: "There was no understanding with me that it was to be applied on that," meaning the Snell account. "Q. Was the word 'Snell' used? A. We may have talked about the Snell job but I don't remember it. But as far as telling me to apply it on the Snell job, I think that is a mistake." This witness, in other parts of his testimony, denies that Buley ordered the money so paid to be credited on any particular account. Somars' declaration, however, that there was no "understanding" with him that the payment was to have been credited on the Snell account, seems to be an implied admission that the contractor directed how the money should be applied, but that he did not agree thereto. So, too, Somars' statement, that he thought Buley's sworn declaration that he had directed how the credits should have been made was a mistake, is so mild in its contradiction as to leave an infer For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes ence that the plaintiff's agent hesitated ex- | received from said Jas. Higgins Co. the sum pressly to deny the testimony of the con- of One Hundred (100) Dollars in part paytractor. ment of above agreement; Balance to be paid on receipt of said goods received in good condition as per agreement above. L. T. Torvick, We feel satisfied the trial court properly found that the lien contained a false statement of the plaintiff's claim, and, this being | Seller, Jas. Higgins Co., Buyers, Per O. Brorso, the decree is affirmed. (55 Or. 274) JAMES HIGGINS CO. v. TORVICK. (Supreme Court of Oregon. Jan. 11, 1910.) 1. SALES (§ 185*)-PERFORMANCE-TENDER of PAYMENT-SUFFICIENCY. sen, March 20, 1907. Paid on account of $100.00. Draft on account of $." Plaintiff's evidence showed that it had agreed to furnish sacks for the potatoes and a car upon which to load them. There was also evidence which tended to show that the defendant lived about four miles from Mt. Angel, and that the roads were in such a condition that only about 20 sacks could be hauled at a load. Defendant was paid $100 at the time the contract was signed, and sacks were forwarded to him a short time thereafter. On March 28th defendant wrote plaintiff's agent in Portland that he would have all his pota2. EVIDENCE (§ 20*)—JUDICIAL NOTICE-MAN-toes ready by April 4th, and requested plain Where the delivery by the seller and payment by the buyer were by the contract to be concurrent acts, an offer by the buyer to go with the seller to a bank and pay him the money on delivery is a sufficient tender of payment. [Ed. Note. For other cases, see Sales, Cent. Dig. § 498; Dec. Dig. § 185.*] AGEMENT OF OCCUPATIONS. Courts may take judicial notice that potatoes are subject to decay, and that so late as the latter part of April it would not be good business policy for a farmer to hold a large quantity of them on hand on uncertainty as to when a car would be furnished by a buyer to take them away. Under a contract made on March 20th for the sale of potatoes to be delivered on a car to be furnished by the buyer in about five weeks, on the failure to furnish the car within five weeks the seller was justified in selling the potatoes to another, as the phrase "about five weeks" was, considering the nature of potatoes to decay at that season, intended not to limit the time within which the buyer should furnish the car, but to limit the time within which the seller should complete the delivery. [Ed. Note.-For other cases, see Sales, Dec. Dig. § 81.* For other definitions, see Words and Phrases, vol. 1, pp. 21-28.] Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge. tiff to have a car ready at Mt. Angel at that date to receive them. To this plaintiff's agent answered by letter, stating that the car situation was in bad shape, and that they had been unable to procure a car for delivery at that date and asking a few days' indulgence, stating that, if defendant's work was such that it would not be convenient to make delivery a few days later than the 6th of April, plaintiff would try to have Mr. Brorsen, its purchasing agent, rent a place somewhere, and take delivery and store the potatoes until cars could be obtained. Some time between the 11th and 13th of April Brorsen called on defendant, and gave him a card authorizing him to get a car of the agent at Mt. Angel. Brorsen also gave the agent at Mt. Angel a card, showing where the car should be shipped, but there was no evidence that there were any cars available at Mt. Angel at any time before April 26th, or that defendant had anybody there to import and receive the potatoes until the latter date. A car was sent on the evening of April 25th, and was there avail able on the 26th. On the last date mentioned plaintiff's agent met defendant coming from his ranch with a load of potatoes, and said to Action by the James Higgins Company, a corporation, against L. T. Torvick. Defend ant had judgment, and plaintiff appeals. Af-him, "You are hauling my potatoes?" to which firmed. This was an action brought to recover damages for breach of a contract of sale of potatoes. That part of the contract which is in writing is as follows: "Jas. Higgins Co.. 317 and 319 Drum Street, Corner Oregon, San Francisco, Cal. L. T. Torvick has this day sold to Jas. Higgins Co. the following goods, viz.: Mt. Angel, at 80c per bushel about 500 sks. Burbanks, about 150 sks, seed Burbanks, 85c per 100; all goods to be sound and merchantable of best quality on arrival in to be delivered F. O. B. railroad car Mt. Angel in about five weeks, and sacks must be full open mouthed, put up with tule top in first-class marketable condition. Sacks to average full lbs. In consideration check have defendant answered, "No; I sold my potatoes to Schwab at Mt. Angel." Defendant also said that he had waited long enough.. The agent said, "Now, you can go up to Mt. Angel and get your money." Defendant refused, saying that plaintiff did not owe him anything. On the 27th of April plaintiff's agent asked defendant to go with him to the bank and get his money, but defendant refused. The agent testified that he did not have the money with him, but that he could have obtained it at the Mt. Angel bank, and that he was ready and willing and able to pay for the potatoes. Defendant on the latter date returned the $100 advanced to him by plaintiff, and also paid $49, the value of the sacks which plaintiff had furnished him. At the conclusion of plaintiff's testimony, the court, on motion of defendant, granted a judgment on nonsuit, and from such judgment plaintiff appeals. C. L. McNary (Frank F. Freeman, on the brief), for appellant. Geo. G. Bingham (L. J. Adams, on the brief), for respondent. MCBRIDE, J. (after stating the facts as above). We think the court below erred in holding that there was not sufficient tender made by plaintiff. The evidence tended to show that defendant had already sold his potatoes to another party, and had thereby placed it beyond his power to perform in any event. Moreover, the delivery and payment were by the terms of the contract concurrent acts. Plaintiff was to pay when the produce was delivered, not before. Under such circumstances, an offer to pay upon delivery, coupled with a willingness and present ability to do so, are all the law requires. This question is settled in this state by the decision of this court in Catlin v. Jones, 52 Or. 337, 97 Pac. 546, which was decided since the trial of the case at bar in the circuit court. The nonsuit, however, was correctly allowed upon the second ground stated. The term "about" has a somewhat flexible meaning. Thus in a contract to convey 140 acres of land it was held that the term "about" meant an approximation to that number of acres and that 13474/100 acres was too great a variation. Stevens v. McKnight, 40 Ohio St. 341. The term "about" used in a finding that a car load of lumber is about so many feet means "not far from." Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462, 34 N. E. 579. A contract for a sale of about 300 quarters of rye did not oblige the buyer to accept so large an excess as 50 quarters over the 300, but the excess should bear a very small proportion to the amount named. Cross v. Eglin, 2 Barn. & Adolp. 106. In a contract to furnish 5,000 tons of railroad iron, it was stipulated that they were to be shipped at the rate of "about" 1,000 tons per month, beginning in February, but the whole to be shipped before August 1st of the same year. It was held that the contract required a shipment of 1,000 tons each month from February to June, and that a shipment of 400 tons in February and 885 tons in March justified a rescission of the contract. Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. In other cases the term "about" has been held as equivalent to the phrase "not to exceed." Thus in People v. City of Riverside, 70 Cal. 461, 11 Pac. 759, where an act of the Legislature declared that a city of the sixth class must be one containing "not exceeding" 3,000 inhabitants, and the notice of an election to decide on incorporation stated that the number of inhabitants therein was "about 3,000," it was held that this was a sufficient notice to designate the city as one of the sixth class, since, if it contained "about 3,000" inhabitants, it could not exceed 3,000, pro hibited by the statute. In Simpson v. N. Y., N. H. & H. R. R. Co., 16 Misc. Rep. 613, 38 N. Y. Supp. 341, the plaintiff in an action for damages for loss of goods alleged the value of the baggage lost to be "about" a certain sum, and it was held that the term used meant "nearly," "approximately," "almost," and that his recovery must be limited to the sum named. In estimating time it was held in The Alert (D. C.) 61 Fed. 504, that, where the charter of a steamer provided that the vessel should be delivered for the use of the charterer at a port in the West Indies "about" April 10th, the word "about" gave the owner only such additional time as might be made necessary by accidents of navigation arising on the voyage after a reasonable start, and such delay in starting as would prevent the ship from arriving at her destination before the 27th of April was a breach of the charter. In the case last cited the court lays stress upon the fact that the vessel was intended for the shipment of fruit, and that the season for such shipment was short and the cargo perishable, and therefore that time was of the essence of the contract. While the humble, but useful, potato, could hardly be classed as a fruit by even the most Hibernian of judges, yet we may go so far as to take notice that it is a vegetable, that like all things earthly, is subject to decay, and that so late in the year as the latter part of April it would not be good business policy for a farmer to hold a large quantity on hand upon uncertainty as to when a car would be furnished to take them away. The phrase "about five weeks" was confessedly put into the contract not to limit the time within which plaintiff should furnish defendant a car, but to limit the time within which defendant should complete a delivery of the goods. He had a right to begin delivery at any time and to call for a car in which to place his produce. On the 28th of March he did call for a car, and plaintiff' failed to furnish it. About the 15th of April he saw plaintiff's agent and still received no car. We are of the opinion that, under the circumstances, he was not required to wait longer and allow his produce to deteriorate on his hands, as it naturally does and would have done at that season of the year. Plaintiff should have furnished him a car in such reasonable time that he could have completed his delivery approximately on April 24th. Had defendant waited until the 26th, when the car finally came, it is evident that under the conditions shown in plaintiff's testimony the delivery could not have been completed until some time early in May. The fact, if it is a fact, that the delay in furnishing a car was the fault of the railroad company, can make no difference so far as defendant's liability is concerned. If, by the neglect of the railroad company to provide adequate equipment to carry on its business, the plaintiff has been prevented from carrying out its contract and has been damaged in consequence, its remedy is against the railroad company, | 8. CRIMINAL LAW (§ 1172*)-REVIEW-HARMand not against the defendant. LESS ERROR-INSTRUCTIONS. The judgment of the circuit court is af- plained possession by defendant of recently firmed. (18 Wyo. 216) ROBINSON v. STATE. (Supreme Court of Wyoming. Jan. 10, 1910.) 1. CRIMINAL LAW (§ 598*)-CONTINUANCEABSENCE OF WITNESS-DILIGENCE. Defendant is not entitled to a continuance for the absence of a witness, where the witness resides in another state, and no subpoena has been issued, nor any attempt made to obtain the evidence by deposition. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.*] 2. CRIMINAL LAW (8 598*)-CONTINUANCEFAILURE OF COUNSEL TO OBTAIN EVIDENCE. Defendant is not entitled to a continuance for the absence of a witness on the ground that her counsel, whom she discharged during the impaneling of the jury, had failed to procure a subpoena, or obtain a deposition, in the absence of a showing that defendant had fully stated to counsel what she expected to show by such witness, and that his failure to attempt to obtain the evidence was after knowledge of the facts. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. 8 598.*] The error of an instruction that the unexstolen property is evidence of larceny by him is harmless, where there is no dispute that the property was stolen, and there is sufficient evidence, independent of such recent possession, to sustain a conviction of defendant. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3154, 3155, 3161; Dec. Dig. § 1172.*] * 9. LARCENY (§ 77*)-TRIAL-INSTRUCTIONS. 10. CRIMINAL LAW (§ 789*)-TRIAL-INSTRUC TIONS REASONABLE DOUBT. An instruction on reasonable doubt that: "You are not at liberty to disbelieve as jurors if you believe as men; your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered" 3. CRIMINAL LAW (§ 1151*) - REVIEW DISCRETION OF COURT DENYING CONTINU--is erroneous, as it omits the essential element ANCE. In the absence of an abuse of discretion, a conviction will not be disturbed for the denial of a continuance for the absence of a witness. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3046; Dec. Dig. § 1151.*] 4. CRIMINAL LAW (8 590*)-CONTINUANCECHANGE OF COUNSEL. In the absence of a showing that she was misled or prejudiced by unprofessional conduct of her counsel, defendant, who changed counsel after the calling of the case, is not entitled as of right to a continuance to allow her new counsel to familiarize himself with the case and prepare for a defense. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1316, 1317; Dec. Dig. § 590.*] 5. LARCENY (§ 55*) - PROSECUTION CIENCY OF EVIDENCE. SUFFI of the necessity for evidence on which to base a verdict, as a lack of evidence to prove guilt cannot be supplied by what the juror knows or believes, regardless of his oath. [Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 1916, 1921; Dec. Dig. § 789.*1 Error to District Court, Natrona County; M. C. Brown, for plaintiff in error. W. E. SCOTT, J. Elizabeth Robinson was charged, tried, and found guilty of the crime of Evidence held sufficient to sustain a con- grand larceny, and sentenced to serve a term viction of the larceny of a coat. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 149-178; Dec. Dig. § 55.*] 6. LARCENY (§ 51*)-EVIDENCE- POSSESSION OF STOLEN PROPERTY. Evidence of possession by defendant of property recently stolen is not admissible for the purpose of showing the fact that the property was stolen. [Ed. Note.-For other cases, see Larceny, Cent. Dig. § 144; Dec. Dig. § 51.*] of years in the penitentiary, and brings the case here on error. The subject of the larceny is alleged to be a seal skin coat. 1. When the case was called for trial, defendant, through her attorney, C. O. Brown, announced herself ready for trial. The impaneling of the jury was proceeded with, and Brown, Esq., attorney for plaintiff in error after the jury was partially called, M. C. here, appeared in that court, and moved the An instruction that "the unexplained pos- court for a continuance, saying to the court session of recently stolen property is a circum- that he had just been retained in the case stance to be considered by the jury in for the defense; that he was not familiar with arriving at your verdict, as tending to show the the facts in the case; that he desired a little larceny of the property, and that it was stolen time within which to prepare the case for by defendant," is erroneous. the defense; and that he would prepare a motion for continuance on the ground of an ab 7. LARCENY (§ 77*)—TRIAL-INSTRUCTIONS. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.*] sent witness. At the same time, in open | been stolen. Gardner, the prosecuting witcourt, the defendant informed C. O. Brown ness, was one of the inmates of a house of that his services were no longer needed. As soon as prepared, the affidavit in support of the motion on the ground of an absent witness was submitted to the court. The court thereupon overruled the motion. From the affidavit it appears that the witness whose testimony was sought was then, and for some time prior thereto had been, living out of the state, but had verbally promised to return at the time of the trial, and that defendant had relied upon such promise, and that the witness had failed to report at that time. It is conceded that no subpoena had been issued, nor was any attempt made to obtain the evidence of this witness by deposition. Upon this statement standing alone the authority in support of the ruling is found in Keffer v. State, 12 Wyo. 49, 73 Pac. 556, where it is stated that a party cannot complain of such a ruling who shows a lack or want of diligence in preparing for his or her defense. ill fame conducted by the defendant. The evidence tended to show that defendant was ill and confined to her room in the same house on the afternoon and evening of March 10, 1907, the time when the prosecuting witness testified that her coat must have been taken from her room. No one saw the defendant go into or come out of the Gardner room on that day. The only identifying or criminating evidence aside from defendant's occupancy, together with others, of the house, and who together with the frequenters had equal opportunity to steal the coat, is that of Sheffner, the sheriff, and his deputy as to defendant's conduct, what she said, and what occurred when he made a final search of the house. Indeed, up to this time the evidence does not point to her as the thief any more than it does to any other occupant or frequenter of the house. She knew, in common with the other inmates of the house, from the time when such claim was first made on It is further urged that by neglect and March 11th preceding, that the prosecuting fault of her attorney it was necessary for her witness then, and had since, claimed that her to change attorneys at the time she did. It coat had been stolen. The evidence tends to nowhere appears in the record that defendant show that the sheriff had made a partial had fully and fairly stated what she expected search of the house on March 12th, and a to prove by, nor the name of, the alleged more thorough search on April 7th following. absent witness to C. O. Brown, the attorney On the latter date he first searched the beerwhom she discharged, or that he knew of room, and then the linen closet, and failed such absent witness, or that with such knowl- to find the coat. Shortly thereafter, upon a edge he neglected and failed to issue a sub- further search of the beerroom, he found the pœna or procure her deposition. At least coat in a bundle inclosed in a sack or pillowwithout such a showing, after a party has case under the ice box, and when he anconsented to the case being set for trial, and nounced to the defendant that he had found, upon the arrival of that time announced her- and where he had found, the coat, she immeself as ready, and the jury is being called, diately exclaimed: "Why, some of the girls we doubt the wisdom of granting such a mo- must have placed it there." The beerroom tion. If such a practice be encouraged, there and linen closet had a common partition, but would be no end to delays in this class of no door connecting them. Both opened into cases, where a continuance without merit is a sitting room, so that in going from the often a very great advantage to, and eagerly beerroom to the linen closet one would have sought by, the defendant in a criminal case. to pass out into the sitting room, and thence The question was one for the court, and if it into the linen closet, and vice versa. The did not abuse its discretion, error could not sheriff's deputy, who testified as a witness, be predicated upon the ruling, and it does sat in the sitting room so he could see any not affirmatively appear that the court abused one going in or coming out of either of these its discretion in this matter. Nor was it a rooms from the time he and the sheriff went denial of her constitutional right of benefit into the house for the purpose of serving the of counsel. The record shows that she was warrant until the coat was found. We think at all times represented by counsel of her this evidence, in connection with other eviown choosing; and, unless misled or prej-dence referred to in paragraph 3 of this opinudiced in her right by unprofessional conduct ion, was sufficient to support the verdict. of her counsel, which fact should clearly ap- 3. The following instructions were given to pear, she is not entitled as of right, at such the jury over the objection of the defendant, a stage of the proceedings, to delay the court | viz.: by allowing time to a new attorney to familiarize himself with the case and prepare for a defense. Upon the record the court did not abuse its discretion nor deny her any constitutional right in overruling her motion. 2. It is assigned as error that the evidence is insufficient to support the verdict. There is no direct evidence of asportation by the defendant of the property alleged to have "(102) The court instructs the jury that, if they find from the evidence that the defendant was in the possession of the property in question, and that the same was stolen, the unexplained possession of recently stolen property is a circumstance to be considered by the jury, * and such circumstances may be considered by you, in arriving at your verdict, as tending to show the larceny |