through whom it was hoped a purchaser might be found, was taken into the arrangement. Mr. Larrabee would give only short 'options' and they expired and were renewed several times. The only relations that existed between them were such as arose by virtue of their taking the 'options' or contracts jointly from the Oregon Real Estate Company with the understanding that Keady and Swensson would try to find a purchaser, and if they closed the sale and earned the stipulated commission, the net proceeds, after deducting the expenses and the commissions paid to other agents, would be divided between the three, to wit, Coopey, Keady and Swensson. Matters continued on this basis until November, 1912. The parties held an option' which expired on the 18th of November. About that time, through the efforts of brokers in Victoria whom Mr. Keady had enlisted, prospective purchasers were found in London, who cabled $100,000 to Portland as evidence of good faith. In order to go on with the deal it was necessary to get a new 'option.' Coopey, Keady, and Swensson had been having disagreements and disputes as to their relations with the deal. The 'option' which had just expired provided for a gross commission of $469,570.43, in case of a sale at $2,500,000, which was the price the London syndicate was considering. To get a new 'option' and to settle their disputes with each other, the parties met in the office of Martin L. Pipes, Esq., on the 4th day of December, 1912. Mr. Larrabee had been told of the prospect that the English syndicate would buy, and that they had remitted the $100,000. Mr. Coopey also knew these facts. Mr. Larrabee was unwilling to do more than execute a renewal of the option for ten days-to wit until December 14, 1912.

"At the same time that the new 'option' was given to run ten days, two written contracts respecting the commission were executed by the Oregon Real Estate Company; one a contract with Mr. Coopey agreeing to pay him $70,000 in case the sale should be closed in the ten days; and the other with Keady and Swensson agreeing to pay them $430,000 (less a deduction for taxes) on like terms. As part of the same transaction, a mutual release was executed between Coopey, on the one part, and Keady and Swensson, on the other, of which the following is a copy:

"A dispute having existed between myself and L. Y. Keady and A. F. Swensson about my share of the commissions to be paid us by the Oregon Real Estate Company upon a sale proposed to be made by it of certain real property, and the said dispute having been satisfactorily settled, now, in consideration thereof, and of the assumption by the Oregon Real Estate Company of the payment to me of the sum of seventy thousand dollars ($70,000) in full for my share of said commission, if the sale shall be completed, and the commission earned, I hereby release the said L. Y. Keady and A. F. Swensson from all obligations to me for any part or share in the commissions they may receive from the said Oregon Real Estate Company, as well as all other obligations that might arise or be claimed by me arising out of said transaction or otherwise prior to this date. "December 4, 1912.

"[Signed] Chas. Coopey. "And on the same premises and for the same consideration, we release Charles Coopey from all obligations prior to this date.

66

[Signed] L. Y. Keady,
"A. F. Swensson.""

At the time said release was executed the Oregon Real Estate Company executed to the plaintiff its agreement to pay him his part of the commission in the following words:

"The Oregon Real Estate Company, having proposed to sell certain of its real property by a proposal of even date herewith made to L. Y. Keady, and L. Y. Keady, A. F. Swensson, and Charles Coopey having interests in the commission to be paid on the proposed sale if completed according to the terms of said proposal, about which commissions a dispute arose between said parties, and the said dispute having been satisfactorily settled by them: Now, therefore, as a part of said settlement, the Oregon Real Estate Company agrees with Charles Coopey to pay to him the sum of seventy thousand dollars ($70,000) as commission for said sale (the said sum having been deducted from the commissions to be paid to L. Y. Keady and A. F. Swensson), subject, however, to the same terms as to payment as provided in the contract of the said company with said L. Y. Keady and A. F. Swensson of even date herewith, the payment of $70,000 to be made as follows: $8,333.33 out of the first payment of $500,000 to be paid by the purchaser, when paid according to the said proposal; $12,500 out of the second payment; $12,500 out of the third payment; $36,666.67 out of the last payment. Each payment to be made at the time of the payments by the purchaser as aforesaid. "December 4, 1912.

"The Oregon Real Estate Company,

"By C. X. Larrabee, President."

At the same time that the foregoing instruments were executed, the Oregon Real Estate Company gave an "option" for the sale of said real property to L. Y. Keady for the period of ten days from December 4, 1912, upon certain terms specified therein. The purchase price was to be $2,500,000. Said "option" provided that time should be of the essence of the offer.

At the same time the Oregon Real Estate Company made a contract with L. Y. Keady and A. F. Swensson that upon the sale of said real property according to the terms of said "option" it would pay to them, as commissions for making said sale, $430,000. Said company agreed to pay the plaintiff, as stated supra, $70,000, if said real property should be sold in accordance with the terms of said "option"; the total commissions agreed to be paid being $500,000. There was to be some deduction made from the amount payable to Keady and Swensson for taxes. The release, the "option," and the contract referred to supra were executed at the same time and place and constituted one transaction.

[1] 1. The first question for consideration is as to the meaning and effect of said mutual release set out supra. The plaintiff in his brief admits that no sale was made under said "option" obtained on December 4, 1912. A release is a relinquishment, concession, or giving up of a right, claim, or privilege, by the person in whom it exists or to whom it accrued, to the person against whom it might have been demanded or enforced. Black's Law Dictionary (2d Ed.) p. 1011; 34 Cyc. 1042.

[2] At common law a seal was necessary to constitute a release; but where a contract in the form of a release is based on a valuable consideration, it will constitute a release in effect, although not under seal. 34 Cyc.

manager thereof, and to obtain from him an extension, or a renewal, of said contract, if possible, and the evidence shows that neither the plaintiff nor the defendants could induce said company to extend or renew said contract or "option." The company, after the expiration of the ten days, refused to sell said property for the price agreed upon in the contract of December 4, 1912. That contract expired by limitation on December 14, 1912. Several months later the land was sold for $2,225,000, practically

"No sale of property was made under these agreements, and no commission was earned by Keady or Swensson thereunder, and consequently the conditions under which the Oregon Real Estate Company was to pay Mr. Coopey $70,000 commission were never fulfilled and no commission was paid him. It was the contention of appellant that, 'taken by their four corners,' and considered in a court of equity where the intention of the parties governs, these agreements show that they were only intended to apply to the sale then in contemplation, and it was not the intention of the parties that if the sale then in contemplation should not be consummated, that Keady and Swensson were to be entitled to appropriate to themselves the fruits of the combined efforts of the three parties for upwards of two years, and leave Mr. Coopey, who had inaugurated the enterprise, without any thing. He also claims that the subsequent action of the parties, which we shall point out later, also shows that this was not the understanding."

[5] The rule for construing documents of this kind is the same in equity as it is at law.

[6] The mutual release executed by the parties, and set out supra, was a settlement of all claims that the plaintiff might make on account of the "fruits of the combined efforts of the three parties for upwards of two years," relating to commissions for attempts to sell said real estate prior to December 4, 1912, and he cannot be heard now to make any claim therefor. Furthermore, the evidence shows that the efforts of the plaintiff and the defendants to sell said real property prior to the execution of said release were fruitless. No sales were made and no commissions were earned. All their All their contracts or "options" for the sale of the property had expired. The evidence shows that the contract or "option" for the sale of said property that was given by said company on December 4, 1912, expired in ten days from that date, and that it was never renewed or extended. When the release was executed, the plaintiff and the defendants had prospective purchasers in view, to whom they believed the property could be sold within the ten days allowed for making a sale, but the prospective sale failed. Negotiations continued after the time allowed by the contract for making the sale expired. The defendants were unable to induce the Oregon Real Estate Company to extend the time for selling the property, and they re

tract of December 4th the company was to receive $2,500,000; but it was bound to pay of that amount $70,000 to the plaintiff, and $430,000 to the defendants, as commissions. Under the contract by which the property was finally sold, the company paid no commissions to any one. Under the contract of December 4th, the vendor was to pay all commissions. Under the final contract of sale, the vendee paid all the commissions.

Brokers from England and British Columbia figured largely in making the sale, and shared in the commissions paid by the corporation that purchased the property. The defendants received from the vendees as commissions $25,000 in cash and $125,000 in the corporate stock of the vendee. A part of said commissions they paid to others for assistance.

We are unable to find any facts upon which to base a decree for the plaintiff. The defendants never agreed to pay the plaintiff any part of these commissions. They agreed to divide commissions with him under the contracts made prior to December 4th, but no sales were made or commissions earned under those contracts, and hence there was nothing to divide. The last contract that was made for the payment of commissions to the plaintiff was made by the Oregon Real Estate Company on December 4th, and it was conditional on the property's being sold in ten days from that date. evidence fails utterly to show that the defendants agreed to pay the plaintiff any part of the commissions that they should receive for their services in assisting in making the sale that was finally made. There is no evidence that would justify a decree in favor of the plaintiff.

The

We are sorry that we can find no facts that would authorize us to render a decree that would enable the plaintiff to obtain a good portion of the large amount of money that the vendee so liberally distributed among the brokers as commissions.

We approve the findings of the court below.

The decree of the court below is affirmed

BEAN, BURNETT, and MOORE, JJ., con

cur.

(73 Or. 283) MARTINI v. OREGON-WASHINGTON R. & NAV. CO.

(Supreme Court of Oregon. Oct. 20, 1914.) 1. NEW TRIAL (§ 163*)-PROCEEDINGS TO PROCURE-ORDER.

Since an order granting a new trial is appealable, the court, in granting a new trial, should state upon what grounds it was granted. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 330-332; Dec. Dig. § 163.*] 2. NEW TRIAL (§ 70*)-GROUNDS-WANT OF EVIDENCE.

Under Const. art. 7, § 3, providing that no fact tried by a jury shall be otherwise re-examined in any court, unless the court can affirmatively say there is no evidence to support the verdict, a verdict can be set aside for want of evidence only when the court can affirmatively say that there is no evidence to support it.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. § 70.*] 3. EVIDENCE (8 597*)-WEIGHT AND SUFFI

CIENCY.

In order that a verdict may be supported by the evidence, there must be some legal evidence tending to prove every material fact in issue, as to which the prevailing party has the burden of proof.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2449; Dec. Dig. § 597.*]

4. NEGLIGENCE (§ 111*) — ACTIONS-PLEADING.

In actions for negligence, the complaint must state the negligent acts or omissions constituting the cause of the action.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 182-184; Dec. Dig. § 111.*] 5. APPEAL AND ERROR (§ 989*) - REVIEW QUESTIONS OF FACT.

In determining whether there was legal evidence to support a verdict, where the complaint alleged, as the negligent acts of defendant, the high and dangerous speed of its train, the failure of employés to give plaintiff warning of its approach, and the failure to ring the bell or blow the whistle as it approached plaintiff, the Supreme Court can consider no other negligent acts or omissions.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3897; Dec. Dig. § 989.*] 6. RAILROADS (§ 395*)-OPERATION-INJURIES TO PERSONS ON TRACK-ISSUES AND PROOF. Under L. O. L. § 725, providing that the evidence shall correspond with the substance of the material allegations and be relevant to the questions in dispute, and collateral questions shall be avoided, where a complaint for injuries to a track walker alleged, as the negligent acts and omissions of the railroad, the high and dangerous speed of its train, the failure to give warning, and the failure to ring a bell or blow a whistle, evidence of failure to keep a lookout, to see plaintiff on the track, or to stop the train before it reached him was irrelevant.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1339, 1340; Dec. Dig. § 395.*] 7. RAILROADS (§ 372*)-OPERATION-INJURIES TO PERSON ON TRACK-EVIDENCE.

Evidence that a train was run at 20 miles an hour in a rural district, not near a sharp curve or crossing, where the rules of the railroad permitted a speed not exceeding 60 miles an hour, in the absence of any law or rules of the state regulating the speed of trains in the locality, is insufficient to show negligence.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1267-1269, 1271-1274; Dec. Dig. § 372.*]

8. RAILROADS (§ 370*)-OPERATION-INJURIES TO PERSON ON TRACK-CARE REQUIRED.

In the absence of any law, rule, or custom in the state where an accident occurred requiring it, a railroad is under no duty to a track walker in a rural district, not near a crossing or sharp curve, who heard the approach of the train, to ring a bell or blow a whistle.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1263-1265; Dec. Dig. § 370.*] 9. RAILROADS (§ 396*)—OPERATION-INJURIES TO PERSON ON TRACK-BURDEN OF PROOF.

In an action for injuries to a track walker, the burden is on plaintiff to make out a prima facie case of negligence of the railroad.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1341-1343, 1357; Dec. Dig. § 396.*] 10. RAILROADS (§ 381*)-OPERATION - INJU

RIES TO PERSON ON TRACK-ASSUMPTION OF RISK.

An experienced track walker on a railroad, on accepting employment, assumes the risk of injury ordinarily incident to the work, even from the passing of trains of a railroad other than his employer.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.*]

Department 1. Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Calestro Martini against the Oregon-Washington Railroad & Navigation Company. From an order setting aside a verdict and judgment for plaintiff and a new trial, he appeals. Affirmed.

E. R. Ringo, of Salem (Kimball & Ringo, of Portland, on the brief), for appellant. C. E. Cochran, of Portland (W. W. Cotton and A. C. Spencer, both of Portland, on the brief), for respondent.

RAMSEY, J. This is an action to recover damages for personal injuries, occurring to the plaintiff in the state of Washington. The Northern Pacific Railway Company maintains a double track railroad from Portland to Tacoma and other points in the state of Washington. This road runs via Vancouver, Ridgefield, and other towns in Washington. By authority of a contract with the Northern Pacific Railway Company, the defendant runs regular passenger and freight trains over said double track railroad from the city of Portland via Vancouver, Ridgefield, and other points, to Tacoma and other Puget Sound cities.

On the 3d day of February, 1913, the plaintiff was in the employ of the Northern at and near Ridgefield, in Clarke county, Pacific Railway Company as a track walker, It was his duty to state of Washington. walk the said track of said company from the station at Ridgefield south, a distance of a mile and a half, in Clarke county. He was to begin his work at 7 o'clock a. m., each day, and walk over said track frequently. during the day, for the purpose of discovering obstructions thereon, etc. He was not a servant or employé of the defendant. From 30 to 40 trains pass over said track daily.

On February 3, 1913, he appears to have begun his work as early as 6:15 a. m., and when he had walked about a mile south of Ridgefield, at about 7 o'clock a. m., he was struck by a freight train of the defendant going south. His left leg was broken, and he received other serious injuries, which, he contends, incapacitated him permanently to earn a living. He demands damages in the sum of $25,000.

The following portions of the complaint state the plaintiff's cause of action:

"That on the 3d day of February, 1913, plaintiff was employed by the Northern Pacific Railway Company on said double track line of railway between the city of Tacoma, Wash., and the city of Portland, Or., as a 'track walker' between the stations of Ridgefield and Felida, in Clarke county, Wash., and that in the 'performance of his duty as such track walker on said day, at about the hour of 7 a. m., plaintiff was walking on said track on the lookout for obstructions, and, while engaged as aforesaid, defendant's employés and servants, in charge of one of defendant's trains running on said double track, carelessly and negligently ran said train at a high and dangerous rate of speed upon plaintiff, and said train struck and hit plaintiff and threw plaintiff with great force and violence off said track. That defendant's employés and servants, in the operation of said train as aforesaid, carelessly and negligently failed to give any warning to plaintiff of said train, and carelessly and negligently failed to ring the bell or blow the whistle of the said train as said train approached plaintiff while in the performance of his duty as aforesaid, and that plaintiff, because of the careless and negligent acts of defendant's servants and employés as aforesaid, suffered a compound fracture of his left leg, fractures of ten ribs, great and severe bruises, contusions, lacerations, and wounds about the head, back, arms, lungs, legs, and his. private organs, and because thereof plaintiff has suffered and still suffers great pain and mental anguish, and because thereof plaintiff has been and now is incapacitated, permanently disabled, and unable to earn his livelihood."

The defendant denied most of the allega tions of the complaint, and set up negligence on the part of the plaintiff. After alleging that it was very foggy on the morning of February 7, 1913, when the plaintiff was injured, etc., the answer alleges:

but was trespassing thereon, and, notwithstanding plaintiff was wrongfully and unlawfully on said railroad track, yet he did also carelessly and negligently fail, neglect, and omit to listen for the approach of defendant's said or any train, or to look for the approach of the same, and, if he had listened and looked for the said train, he could have heard its approach in ample time to have stepped from said track and avoided the collision hereinafter mentioned. Said plaintiff did also carelessly and negligently remain upon and walk along said track, and did continue to do so until said train arrived within such close proximity to plaintiff that a collision with him was unavoidable, and said engine did collide with plaintiff, whereby he suffered injury, if any, and not otherwise. The defendant was operating said train at a reasonable rate of speed, and had no reason to anticipate the presence of the plaintiff on said track at said point."

The reply traversed the larger part of the new matter of the answer. A verdict was rendered in favor of the plaintiff for the sum of $12,500, and a judgment was entered thereon. The defendant filed a motion to set aside the verdict and judgment, and for a new trial, for various reasons, including errors of law, occurring at the trial The and excepted to by the defendant. grounds for the motion were set out with particularity, but we find it unnecessary to consider more than one of the reasons stated in the motion, to wit: "That there is no legal evidence to support said verdict." The court below took said motion under advisement, and later allowed the same and granted a new trial. The order granting a new trial is expressed in general terms; but we understand that the trial court was of the opinion that there is no legal evidence to support the verdict.

[1] Under our present statute an order granting a new trial is appealable, and we think that, when a trial court grants a new trial, it should state upon what ground it grants it.

[2] 1. A verdict of a jury can be set aside for want of evidence to support it only when the court can say affirmatively that there is no evidence to support it. State Constitution, art. 7, § 3.

[3] In order that a verdict may be supported by the evidence, there must be some legal evidence tending to prove every material fact in issue, as to which the party, in whose favor the verdict was rendered, had the burden of proof.

[4] 2. Under the settled practice in this state, in actions for negligence, it is necessary that the complaint state the negligent acts or omissions constituting the cause

[5] In this case, the negligent acts of which the plaintiff complains are stated in the complaint. Briefly stated, they are as follows: (a) That the defendant's employés and servants "carelessly and negligently