tions 1 and 2 of this ordinance, from and after [ judgment of the mayor and common council of which said dates it shall be unlawful to use up- Portland, it was deemed for the best interests on said street cars any other type of of the inhabitants of that city. This grant of fenders or guards than the types prescribed in authority was continuing until it was emsaid sections 1 and 2 respectively." ployed May 11, 1911, by the enactment of Ordinance No. 23259, which then went into effect directing the kind of apron required to be used in Portland on cars having air brakes, and thereupon such municipal law became the rule governing the operation of No authority, such vehicles on the streets. however, was conferred to postpone the operation of that law, and the attempt to du so, as set forth in the ordinance, was ultra vires and void. The testimony shows that the car causing the injury was of type "F. No. 340," and was operated on the streets of Portland by using air brakes, but it did not have the fender or apron prescribed by section 1 of the amended ordinance. The guard used upon such car, however, was the one mentioned in section 2 of the enactment. Patrick L. Betech, the motorman in charge of the car at the time of the accident, testified that, immediately before it occurred, he heard a man screaming, and looking forward he saw the little girl coming from behind the east end of the woodpile, about 20 or 25 feet ahead, running northwesterly, but that she was only 3 or 4 feet from the car when she reached the track; that as soon as the witness saw her he applied the emergency brakes and tried to step on the pin whereby the guard could have been released, but that, his foot slipping, he missed the catch, and the fender did not fall. No evidence was offered by the defendant to show any attempt on its part to comply with the provision of section 1 of the amended ordi nance. [2] The car causing the death of Maxine Melba Rudolph not having been equipped at the time of the accident as commanded, its operation was a violation of the provision of section 1 of the ordinance, and, this being a breach of duty enjoined by law, the injury resulted from negligence per se. terson v. Standard Oil Co., 55 Or. 511, 106 Pac. 337, Ann. Cas. 1912A, 625; Morgan v. Bross, 64 Or. 63, 129 Pac. 118; Goodwin v. Rowe, 67 Or. 1, 135 Pac. 171. Pe [3] The motion for a new trial did not specifically state that there was no evidence received to sustain the verdict as to some material issue, and for that reason it is argued by defendant's counsel that an error was committed in setting aside the judgment. In L. C. Smith & Bros. Typewriter Co. v. McGeorge, 143 Pac. 905, in referring to section 548, L. O. L., it is said: "Under the provisions of this statute, the and grant a new trial can be exercised only right of a circuit court to set aside a judgment when, in the trial of a cause an error has been committed which is so prejudicial to the defeated party that the judgment rendered against him would, if allowed to remain in force, be reversed on appeal. When the trial court, within the time allowed, discovers that such a mistake of law has been made, it may sua sponte or on motion correct the error by setting aside the avoiding the necessity of and the expense judgment and granting a new trial, thereby incurred by an appeal." It will be remembered that the proviso found in section 7007, L. O. L., empowers the mayor and common council of Portland, whenever in their judgment it should be deemed for the best interests of the inhabitants of this city to substitute, in lieu of the fender provided for by that statute, another approved guard, the exercise of which right was to be evidenced by an entry made upon the records of that municipality. It will also be kept in mind that the statute did not go into effect until January 1, 1904. Ordinance No. 24353, prescribing the kind of fender to be employed on street cars having air brakes and used in the city of Portland, was not to become operative until Septem-* ber 1, 1912, 47 days after the plaintiff's daughter was killed. From the time the statute referred to went into force until this ordinance became effective was 8 years and 8 months. How many street cars having air brakes were in use by the defendant when the ordinance became operative does not appear from a transcript of the testimony. On July 15, 1912, or the day preceding the injury complained of herein, 350 cars should have been equipped with fenders, as prescribed in section 1 of the ordinance. That number of cars should have been supplied with guards in 8 years, 6 months, and 14 days from the time the statute went into effect. This was an allowance of more than eight days to each car in which to secure and attach the prescribed fender. [1] The power to substitute, in lieu of the guard recommended by the statute, another fender could be employed "whenever," in the The case at bar comes within the rule thus announced, and, as there was no evidence received in respect to the matter stated by the court in its findings, the judgment was properly set aside. The order brought up for review is affirmed. (76 Or. 167) STACEY et al. v. McNICHOLAS et al. (Supreme Court of Oregon. Oct. 6, 1914.) 1. APPEAL AND ERROR (§ 339*)-PROCEEDINGS TO TRANSFER CAUSE-TIME FOR PROCEEDINGS. In a receivership proceeding, an appeal taken June 4th, from a decree entered on April 6th, in favor of petitioning holders of receiver's certificates, authorizing the receiver to apply to the United States District Court, in which bankruptcy proceedings were pending, for leave to sell property, was in time, under Laws 1913. pp. 617, 618, authorizing an appeal within 60 days from the entry of the judgment, decree, or | to him said mining property as trustee in order appealed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1883-1887; Dec. Dig. 8 339.*1 2. APPEAL AND ERROR ( 127*)-DECISIONS REVIEWABLE-DEFAULT DECREE. In a suit for the appointment of a receiver, a decree upon the petition of holders of receiv: er's certificates, which petition was contested by the trustee and bankruptcy of the former owner, is not a decree by default for the purposes of review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 885-889, 891; Dec. Dig. 8 127.*] 3. APPEAL AND ERROR (§ 801*)-MOTION TO DISMISS-REVIEW-SCOPE AND EXTENT. Under L. O. L. § 558, providing that the appellate court may review any intermediate order involving the merits or necessarily affecting the judgment or decree appealed from, the question whether orders, made more than 60 days prior to the notice of appeal from the decree, to which error is assigned, can be considered will not be determined on a motion to dismiss the appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3161-3164; Dec. Dig. § 801.*] bankruptcy of said corporation. The court below refused to grant the prayer of his petition. In February, 1914, 31 holders of receiver's certificates issued in this cause applied to the court below for a decree for the sale of said mining property by J. F. Reddy, receiver of the property of said bankrupt corporation, it being claimed by said petitioners that J. F. Reddy was the receiver of said property. The appellant William Ulrich, as trustee in bankruptcy of said corporation, filed in said court written objections petitioners, in which he claimed, inter alia, to the granting of the relief asked by said that the order of the court below appointing J. F. Reddy receiver of said property was void, and that Reddy did not qualify as such receiver until after the petition to have said corporation adjudged a bankrupt was filed in the United States court. He claimed, also, that he was in possession of said property as trustee, and that he, as trustee, was duly authorized to sell said property, and that the United States District Court for In Banc. Appeal from Circuit Court, Jo- the District of Oregon had issued an injuncsephine County; F. M. Calkins, Judge. Suit by James E. Stacey and others against James H. McNicholas and others. From a decree for plaintiffs, defendants Old Channel Mining Company and others appeal. Motion to dismiss appeal denied. tion restraining J. F. Reddy, as receiver of said property, from in any manner interfering with said property or with the control of said trustee over the same. Said trustee prayed said court not to authorize J. F. Reddy, as receiver, to sell said property, etc. The application of the various interested par Colvig & Roberts, of Medford, Durham & Richard, of Grants Pass, and Jacob E. Dit-ties for the relief referred to supra, and to tus, of Chicago, Ill., for appellants. O. H. Lawler and A. E. Reames, both of Medford, and H. D. Norton, W. C. Hale, and O. S. Blanchard, all of Grants Pass, for respondents. RAMSEY, J. This suit appears to have been commenced in 1910 for an accounting, and to have a receiver appointed to take charge of the mining property described in the complaint. On August 5, 1910, L. C. Hudson was appointed receiver. On July 10, 1911, said receiver was discharged. On February 24, 1913, the court below appointed J. F. Reddy receiver of said property. It seems that some or all of the mining property described in the complaint belonged to the Old Channel Mining Company, an Illinois corporation, and that on August 18, 1913, the District Court of the United States for the District of Oregon made and entered an order adjudging said corporation to be bankrupt, and William Ulrich, one of the appellants, was appointed by said United States District Court trustee in bankruptcy of said corporation, and he duly qualified as such trustee. Said trustee in bankruptcy claimed the right to the possession of said mining property as trustee of said corporation, under the bankruptcy laws of the United States. On September 18, 1913, he petitioned the court below for an order thereof authorizing and requir ing J. F. Reddy, said receiver, to turn over which the appellant William Ulrich, as trustee of said bankrupt corporation, objected as stated above, came on for hearing in the court below on the 6th day of April, 1914, and on that day a decree was rendered by said court containing many provisions, and, among them, a provision directing J. F. Reddy, as receiver, to apply to the United States District Court for an order dissolving all restraining orders issued by said United States court pertaining to said mining property, and ordering J. F. Reddy, as receiver, upon the dissolution of said restraining orders issued by the United States court, to proceed and advertise the property of the Old Channel Mining Company in Oregon for sale and to sell the same in the manner stated in said decree, etc. The appellant Ulrich, as trustee, appeared in said proceeding and opposed the granting to Reddy, receiver, the power to sell said property, claiming that Reddy was not legally receiver of said property, and that the appellant, as trustee in bankruptcy of said corporation, was in possession thereof and had the right to sell it, and was endeavoring to do so. The Old Channel Mining Company and William Ulrich, its trustee, appealed from the whole said decree. [1] 1. The respondents moved to dismiss the appeal on the ground: "That the record fails to show any appeal taken within the time limited by law from any *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes appealable order, judgment, or decree made or those orders can be reviewed on this appeal entered in said court and cause." will be a proper question for consideration The notice of appeal states that the ap- on the trial on the merits; but it is not pellants appeal "from the decree of the circuit court of the state of Oregon, for the county of Josephine. and from the whole thereof, rendered and entered in the above entitled suit on or about the 6th day of April, A. D. 1914, said decree being in favor of the petitioning holders of receiver's certificates and J. F. Reddy and against William Ulrich, as trustee in bankruptcy of the Old Channel Mining Company." The notice of appeal properly describes the decree appealed from. The decree is dated April 6, 1914, and it is favorable to the holders of receiver's certificates and J. F. Reddy and against William Ulrich, trustee in bankruptcy of the Old Channel Mining Company. The notice of appeal appears to have been served on the 3d and 4th days of June, 1914. The undertaking for the appeal was served and filed within the time allowed by law. Under the present statute (Laws of 1913, PP. pp. 617, 618), if the appeal is not taken in open court at the time of the rendition of the judgment or the decree or final order appealed from, it must be taken by serving and filing the notice of appeal within 60 days from the entry of the judgment, decree, or order appealed from, and the undertaking for the appeal must be served and filed within 10 days from the giving or service of the notice of the appeal. We find that the appeal from said decree was taken within the time allowed by law therefor. proper to consider that question on a motion to dismiss the appeal. The decision of the court in granting the decree for the sale of the property of the Old Channel Mining Company can be reviewed on the appeal, because that is the chief thing incorporated into the decree appealed from, but what else may be reviewed at the trial on the merits it is not proper to determine on this motion. The fact that there is a question that can properly be reviewed at the hearing on the merits necessitates the denial of the motion to dismiss; the appellants having perfected their appeal in accordance with the statute. The merits of the case cannot be considered or determined on a motion to dismiss the ap3 Cyc. p. 197, says: peal. pellate court will not pass on the merits of the "On a motion to dismiss [an appeal], the apappeal. And in case that, in passing on a motion to dismiss, the court would be required to examine the entire record, the motion will not be considered until final submission on the merits." In Elliott's App. Proc. § 522, the author says: volve any questions concerning the merits of the "A motion to dismiss [an appeal] does not incontroversy; it simply brings in question the effectiveness of the appeal. On such a motion the court will only inquire whether the appeal lies and whether it is properly taken and perfected." 3 Cyc. Pl. & Prac. p. 347, says: "The inquiry on a motion to dismiss [an appeal] is accordingly limited to ascertaining whether an appeal lies in the given case, and whether it has been regularly taken and perfected." 2 Hayne on New Trial and Appeal (Revised Ed.) § 272, says: [2] 2. The decree appealed from was not rendered by default. It was based on a showing made shortly before its rendition. In this proceeding, Ulrich, trustee in bankruptcy, appeared, filed and presented objections to the application for a decree for the sale of said property then made, and his objections were overruled. The decree appealed from appears to have been made upon the "Nor should an appeal be dismissed in adpetition of 31 holders of receiver's certifi- vance of the hearing on the merits, upon the ground that the appellant is merely a formal cates, asking for a decree for the sale of the party, and has no real interest in the controproperty of the Old Channel Mining Com-versy, or that the appeal was taken for delay, pany. The decree appealed from was based or that the matter has been decided on a previon this petition rather than upon the orig-mined in advance of a hearing on the merits, ous appeal. These questions cannot be deterinal complaint. We hold that the appellants and the court will never consider the merits had a right to appeal from said decree. [3] 3. In the abstract the appellants set forth 19 alleged errors, for which they ask a reversal of the decree appealed from, and they refer to various orders made by the court below that they assert were erroneThe respondents contend, by their motion to dismiss the appeal, that as to most, if not all, of these orders the time for appealing therefrom had expired prior to the date of the taking of this appeal. But this appeal is taken only from the decree rendered on April 6, 1914, and the notice of appeal does not refer to any other decree or order. Section 558, L. O. L., provides that, upon an appeal, the appellate court may review any intermediate order involving the merits or necessarily affecting the judgment on a mere motion to dismiss." In Corder v. Speake, 37 Or. 105, 51 Pac 647, the syllabus is in part: "A motion to dismiss an appeal or to affirm a judgment proceeds on the theory that the appellate court is without jurisdiction, or that the appellant has not complied with some rule of court, and unless one of these conditions is made to appear, the motion must be overruled. In passing on a motion to dismiss an appeal, the merits of the case will not be considered." The respondents contend that most of the matters referred to in the appellants' assignment of errors cannot be reviewed on this appeal, because they transpired more than 60 days prior to the taking of the appeal. They can present their contentions on those points at the hearing on the merits, but not on this motion to dismiss. COOPEY v. KEADY et al. (Supreme Court of Oregon. Oct. 13, 1914.) 1. RELEASE (§ 1*)-DEFINITION. 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 accrues, to the person against whom it might have been demanded or enforced. [Ed. Note.-For other cases, see Release, Cent. Dig. $$ 5, 6, 9-11; Dec. Dig. § 1.* For other definitions, see Words and Phrases, First and Second Series, Release.] Y. Masters and R. B. Sinnott, both of and (Sinnott & Adams, of Portland, on the brief), for appellant. Harrison Allen and L. Veazie, both of Portland (Griffith, ni A. 2. RELEASE (§ 6*) - FORMAL REQUISITES-ter & Allen and Veazie, McCourt & Veazie, all of Portland, on the brief), for respond SEAL. Under L. O. L. § 778, providing that an agreement in writing without a seal in the compromise or settlement of a debt or controversy is as obligatory as if a seal were affixed, a release is effective without a seal, though one was necessary at common law. [Ed. Note.-For other cases, see Release, Cent Dig. §§ 12-14, 16; Dec. Dig. § 6.*] 3. RELEASE (§ 39*)-OPERATION AND EFFECT. A valid release completely discharges and extinguishes all rights and Gat ar the releasor against the release th covered by the release. [Ed. Note. For oth Dig., see Release, Cent. Dig. 88 51, 52; Dec 39.*1 er case 4. RELEASE (§ 30 JONSTRUCTION AND OPERATION-PARTICULAR PROVISIONS. Under L. O. L 715, providing that in the construction of an instrument the office of the judge is simply to ascertain and declare what is, in terms or substance, contained therein, not to insert what has been omitted, or omit what has been inserted, and section 716, providing that in the construction of contracts the intention of the parties is to be carried out if possible, a release by a broker to other brokers, in consideration of the payment of a certain commission by the principal of all obligations to pay the releasor commissions they may receive from the principal, as well as all other obligations arising out of the transaction, or otherwise prior to the date of the release, was an adjustment of all matters up to the date of its execution barring any action or suit for commissions or for anything done prior to the execution of the release, and it was a settlement as to the amount to be paid to the releasor in the event of sale under the option of sale then granted by the principal. [Ed. Note. For other cases, see Release, Cent. Dig. §§ 72, 73; Dec. Dig. § 30.*] 5. RELEASE (§ 25*)-CONSTRUCTION AND OP er. ts. RAMSEY, J. The complaint alleges inter alia, in substance, that during the years of and 1912, and part of 1913, and long prior thereto, the Oregon Real Estate Company, a corporation, was the owner of 858 lots in Wheeler's and Holladay's additions to the city of Portland, and some outside property; and that Charles X. Larrabee was the president of said company; that during the year 1911 the plaintiff was negotiating with Charles X. Larrabee for an "option" to sell said lots, and that said Larrabee, as president and manager of said company, had agreed with the plaintiff to give him an "option" to sell said lots and other property at the price of $2,500,000, and to allow the plaintiff a commission of $500,000 for making said sale; that for the purpose of negotiating said sale and taking said "option," the plaintiff associated the defendants L. Y. Keady and A. F. Swensson with him in said transaction, and that the plaintiff and said defendants took said "option" from said Oresaid lots and entered into negotiations for gon Real Estate Company for the sale of the sale thereof; that the defendants and the plaintiff negotiated for the sale of said property from the time of taking said "option," and obtained extensions of said "option," and after the expiration of said extensions, the plaintiff and the defendants still negotiated for the sale of said property, with the understanding and agreement that the plaintiff and the plaintiff and the defendants were to be equally interested in the commissions to be obtained upon said sale; that through said negotiations a purchaser was procured for said property, and the plaintiff and said defendants became and were entitled to a commission on the same; that the defendants L. Y. Keady and A. F. Swensson have refused, and still refuse, to inform the plaintiff as to the exact amount of commissions received on said sale, but the plaintiff is informed and believes, and therefore alleges the fact to be, that a commission of $250, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 000 was received upon the sale o as to or any f the said Oregon Real Estate Company assumed and agreed to pay to the plaintiff the sum of seventy thousand dollars ($70,000), which payment was to be in full of the share of the plainthe event of a sale of the said property, and tiff for all commissions to be earned by him in in consideration of the execution and delivery to the plaintiff by the said Oregon Real Estate The complaint alleges also, in sub. stance, Company of the agreement aforesaid and in that the plaintiff is informed and be An- leased these defendants, L. Y. Keady and A. F. lieves settlement of all of their affairs, the plaintiff rethat said lots are to be conveyed to ommis- of every kind and character on account of any Swensson, from any and all obligations to him glo-Pacific Realty Company, and the cash commissions that they or either of them might sion on said sale is to be paid part in and part in stock of said company, and that receive from the Oregon Real Estate Company it is the intention of said L. Y. Keady and an account of the sale of said property, as well as all other obligations which might arise or be A. F. Swensson to have said money and stock claimed by the plaintiff on account of any transferred to them or to a person designat- transactions had by the plaintiff and these defendants with reference to the real estate aforeed by them, so that the plaintiff cannot p said, and these defendants in consideration of cure or collect his share of said commissid the premises and as expressed in said release, etc. The complaint asks for an injunction r released and discharged the plaintiff from all strain the defendants from selling or dis-obligation to them and each of them on account posing of the stock or money received by them or due them for said commissions of said sale, for an accounting etc. on of the said property or the sale thereof, and commissions to be earned thereby. "That by the terms of said settlement and the execution and delivery of said release, all claims Said defendants filed an answer denyingndants and each of them were fully paid, satand demands of the plaintiff against these demuch of said complaint and alleging, inter isfied, and discharged, and these defendants alia, the following: have never since the said 4th day of December, 1912, at any time made or entered into any contract or agreement, or had any understanding whatsoever with the plaintiff with reference to the sale of said real estate or any part thereof, or its sale to purchase by the AngloPacific Realty Company, or any other person, firm, or corporation whatsoever, and these defendants allege that, if there is now anything due to the plaintiff on account of the sale of said real estate, it is due to him from the Oregon Real Estate Company as by the terms of said agreement provided, and not otherwise, and these defendants, nor either of them, are indebted to the plaintiff in any sum or amount whatsoever, or liable to account to him for any commissions with reference to the sale of said real estate." "That during the years 1911 and 1912, and prior to the 4th day of December, 1912, the plaintiff and defendants L. Y. Keady and A. F. Swensson have been endeavoring to make a sale of certain real property of the Oregon Real Estate Company, but without success, when on, to wit, the said 4th day of December, 1912, various disputes having arisen between the plaintiff and these answering defendants, L. Y. Keady and A. F. Swensson, concerning the attempted sale of said property, and the division of commissions between them in the event of such sale, and the said parties having disagreed and determined to effect a complete settlement between themselves with reference to their association with each other, their efforts with reference to said property, the plaintiff, Carles Coopey, made, exec and delivered to these defendants a full and complete release of all claims and demands on account of said property and commissions with reference to the sale of said property, which release was and is in words and figures as follows, to wit: "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 ($70,000.00) 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. Chas. Coopey. "And on the same premises and for the same consideration, we release Charles Coopey from all obligations prior to this date. "L. Y. Keady, "Dec. 4th, 1912.' "That at the time of the execution of said release, and immediately thereafter, the Oregon Real Estate Company, an Oregon corporation, and the one mentioned in said release, did enter into the agreement with the plaintiff which is The plaintiff filed a reply denying parts of the answer and setting up affirmative matter. The court below made findings and entered a decree-sustaining the defense pleaded in the answer. The plaintiff appeals, and asks for a decree in his favor on the facts. The evidence is lengthy, but much of it is incompetent. incompetent. However, we have examined the evidence. The following is a summary of the facts shown by the evidence: "The Oregon Real Estate Company, of which Mr. C. X. Larrabee was president, manager, and principal stockholder, was the owner of 858 lots in the city of Portland and certain outside property. The company desired to sell said property, and numerous 'options' had been given during the two or three years prior to 1911 to various persons who desired to find purchasers. In 1911 Mr. Coopey, the plaintiff, who ap pears to have been in friendly relations with Mr. Larrabee, conceived the idea of taking one of these 'options' and trying to sell the property. He broached the subject to Mr. A. F. Swensson, a real estate broker, and, after making an extended examination of the property, Mr. Swensson agreed to take the matter up. In August, 1911, they procured a joint option to themselves, accompanied by a letter fixing the commission that would be paid in case of a sale. They made some efforts to find a purchaser. In March, 1912, Mr. L. Y. Keady, another real estate agent, who had some connec |