aptly expressing our opinion on the conten- [ on motion of plaintiffs, the Great Southern tions here involved.

Land Company was made a party defendant, to set aside deeds executed by plaintiff to defendant Nelson, and by him to the Great Southern Land Company. From a decree for plaintiffs, defendants appeal. Suit dismissed.

Joseph & Haney, for appellants. E. B. Dufur and H. H. Riddell, for respondents.

PER CURIAM. In this case it seems that during the progress of the trial the plaintiffs discovered that the land in question had been conveyed by the defendant Nelson to the Great Southern Land Company, a stranger to the suit. On motion of plaintiffs, at this juncture, the court entered an order making the land company a party defendant. The amended complaint was filed, and nothing was done in that respect, except, perhaps, to write the name of the land company in the title of the cause in the original complaint as a defendant.

It follows from these considerations that plaintiff is not entitled to the possession of the stock in question until he redeems by paying the Anson note, with interest, and the question now is with regard to the remedy which should be applied to do justice to both parties. [3] Fankhauser has shown no diligence to protect plaintiff after being informed of his rights, and, under the circumstances, we think that it will be better to retain this case and see that both parties receive their dues, rather than return the stock to the defendant, who might be tempted to pursue his own advantage in preference to the mutual advantage of himself and plaintiff. We will therefore direct that defendant corporation deposit the 10 shares held by it with the clerk of this court, and that plaintiff deposit, within 30 days, with the clerk, the sum of $1,000, due upon the note, with interest at 6 per cent. from maturity, and the costs and disbursements of this suit, with The land company filed an answer identi$160 attorney fees and expenses; that such cal in terms with the answer of the other sum be held for 60 days, within which time defendants; but, in the absence of any sort the defendant shall deposit with such re- of allegation in the complaint in any way ceiver the six shares of stock now in his alluding to it, the court is powerless to enter hands, and thereupon the receiver shall pay a decree binding the Great Southern Land to him the amount deposited, as before re- Company. We are convinced that the plainquired, and return to Gray the 16 shares of tiffs have made a good case on the testistock; and that if defendant shall fail to mony against all the defendants; but, withdeposit the six shares he shall be charged, out allegations to support a cause of suit by supplemental decree herein, with the sum against the one confessedly holding the legal of $146 per share, the present value of the title to the real property in dispute, all that shares of stock, and such sum deducted from can be done is to dismiss this suit, without the amount of money paid by Gray. In case costs or prejudice to any cause of suit or Gray fails to deposit the sum of money re-action heretofore or now existing in favor of quired herein, within 30 days from the rendition of the decree, the stock shall be returned to defendant Fankhauser and he shall be decreed, by a suitable supplementary order herein, to recover his costs, expenses, and attorney fees, as above indicated.

plaintiffs, or either of them, against any or
all of the defendants answering herein.
It is so ordered and decreed.

(58 Or. 409)

DUFUR et al. v. NELSON et al. (Supreme Court of Oregon. April 19, 1911.) JUDGMENT ($ 18*)-PLEADINGS TO SUSTAIN. Where, in a suit to set aside a deed, plaintiff obtained an order making a third person, to whom the land had been conveyed, a party defendant, and amended the original complaint by writing the name of the third person in the title as a defendant, the court could not make a binding decree against such person, who filed

an answer identical with the answer of the original defendant, though plaintiff established a good case, because of the absence of allegations in the complaint to support a cause against him.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. § 18.*]

Appeal from Circuit Court, Wasco County; W. L. Bradshaw, Judge.

Suit by A. J. Dufur, Jr., and another against W. F. Nelson, trustee, in which,

(58 Or. 578)

SMITH V. BAYER et al.Ì (Supreme Court of Oregon. April 19, 1911.) 1. BILLS AND NOTES (8 523*)-ASSIGNMENTACTION-EVIDENCE OF TITLE.

Coupled with plaintiff's possession of a note executed to a corporation, its indorsement "O. K.," in the name of one by whom, as in the name of its treasurer, attested with an president, the name of the corporation was signed to the letter in which the note was sent plaintiff, with testimony of plaintiff that the treasurer's signature was in his handwriting, is prima facie evidence of plaintiff's ownership.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1822-1825; Dec. Dig. § 523.*]

2. WITNESSES (§ 275*)-CROSS-EXAMINATIONS -PARTY.

That the note sued on by an indorsee had previously been transferred to a third person by the payee, and settled for with such person by the maker, is not a subject for cross-examination of plaintiff, who had testified to the indorsement to him, but matter of defense.

[Ed. Note. For other cases, see Witnesses. Dec. Dig. § 275.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

3. BILLS AND NOTES (§ 527*)-DEFENSE OF PAYMENT-SUFFICIENCY OF EVIDENCE.

Evidence in an action on a note held insufficient to show payment. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 527.*]

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Milton W. Smith against J. C. Bayer and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action on a promissory note given by defendants to the Concordia Loan & Trust Company, of Kansas City, Mo., bearing date of January 30, 1896, in the sum of $290, with interest at 10 per cent., and containing a provision for attorney's fees in case of action thereon. Certain payments were indorsed on the note, and it was transferred to plaintiff for collection. The answer admits the execution of the note, but denies the indorsement thereof to plaintiff, and alleges that the Concordia Company transferred it to the Fidelity Trust Company on or before January 1, 1901, and alleges payment of the note to the latter in February, 1902. At the close of the evidence plaintiff moved the court to direct a verdict in favor of plaintiff, which motion was allowed. Judgment was rendered upon the verdict, from which defendants appeal.

Ralph R. Duniway, for appellants. Milton W. Smith and Zera Snow, for respondent.

[2] The cross-examination to which objections were sustained related to the transfer

of the note by the Concordia Company to the Fidelity Company in 1899, for the purpose of showing that the note was subject to defenses available against the Fidelity Company. The indorsement on the note was for collection, and therefore subject to defenses against the Concordia Company or its successor in interest. But the ownership of the note by or the right of the Fidelity Company to settle the same were matters of defense, and not proper subjects for cross-examination. None of the evidence offered, either in the cross-examination of plaintiff or on the defense, tended to show a revocation of the transfer of the note to plaintiff.

[3] The admissibility of the evidence offered on the defense as to the consolidation of the two companies and the correspondence by the Fidelity Company with J. Thorburn Ross, its agent, leading to the settlement of certain matters between defendants and the Fidelity Company, depended upon whether there was evidence tending to prove that the defendant did pay or otherwise settle the note with the Fidelity Company, and, treating all the evidence offered and excluded as before us, we find that there is no evidence of payment or settlement of the note with the Fidelity Company, and this renders the consideration of each exception separately unnec

essary.

A letter by the Fidelity Company, dated EAKIN, C. J. (after stating the facts as March 5, 1901, to Mr. Ross, its agent in Portabove). There are many assignments of error land, and with whom defendants claimed to based upon rulings of the court in sustaining have settled the note, relating to certain objections to evidence offered by defendants, mortgage notes, contained a statement of the relating to the indorsement of the note to interest due on such notes and made special plaintiff; to the transfer of the note by the reference to this note, urging its payment and Concordia Company to the Fidelity Company; offering to accept $125 in satisfaction thereand to the settlement thereof by defendants of. On March 12, 1901, Mr. Ross made a with the latter company. [1] The note and statement to the defendants of the interest indorsement thereon were offered in evidence, due, in which he included this note at $175, to which defendants objected, for the reason making a total due of $866.61; and in a that the genuineness of the indorsement had later statement, not dated, but marked "Esnot been established. It appears that the ex- timate for July 1, 1901," it is again included ecution of the note was procured by plain- in a balance due of $946.74. But no settletiff, as attorney for the Concordia Company, ment was made on either of these statements. in connection with securing an extension of On February 3, 1902, another statement was the time of payment of certain mortgage rendered by the Fidelity Company, showing notes of the defendants in the hands of the the amount of interest due on certain mortConcordia Company, and was sent by him to gage notes to be $376.66. As shown by Ross' the latter company for whom he had been do- letter of April 7, 1902, to the Fidelity Coming business; that he was personally ac- pany, settlement was made on April 5, 1902, quainted with A. D. Rider, treasurer of the with defendants for such accrued interest, Concordia Company, and knew his signature according to the statement above mentioned, and handwriting, and testified that the signa- of date February 3, 1902, and including certure to the indorsement was his; that he re-tain fees for securing the extension of the ceived the note from the company in a letter, loans in the sum total of $552.66; and on of date July 21, 1896, to which was signed the April 14, 1902, the Fidelity Company accompany's name by "F. Amelung, P.," who knowledged receipt of the same. These statealso attests the indorsement "O. K., F. Am-ments being itemized show that the payments elung." This, with 'possession of the note, is did not include this note. Therefore, taking prima facie evidence of plaintiff's ownership the whole of defendants' offers as admitted, thereof. they do not tend to show payment, and there

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

is nothing in the letter of the Fidelity Com- | Washington, Alaska, British Columbia, and pany, of date February 3, 1902, indicating the Hawaiian Islands by traveling salesmen that this note is included in the statement or and by mail orders. More than half of settlement thereof contemplated. Therefore these accounts were owing by residents of none of the evidence offered by defendants Oregon. If goods sold or ordered were not and excluded could aid the defense, nor does in the Portland stock, the manager ordered it tend to prove the settlement of the notes the same from the Duluth house. About 25 by defendants. It was not error to sustain | per cent. of the goods sold by the Portland the objection thereto, and the order directing house were shipped direct to the purchaser a verdict for the plaintiff was not error. by the Duluth house, without passing them

The judgment of the lower court is af- through the Portland house, but the account firmed.

as tangible, personal property. Many cases | The branch at Augusta does business on have held that, when bonds, notes, or other credit, as well as for cash, and in January, evidences of debt owned by a nonresident 1900, it had upon its books, due upon acare in the possession and under the control counts for sale of meat, $6,000, and the quesof an agent for the purpose of renewal, they tion was whether the city of Augusta had the are within the power of the state where power to levy a tax thereon. In that case, the agent resides to subject them to taxation. as here, it was conceded that tangible perBy sections 3551 and 3553, L. O. L., Ore- sonal property was taxable where it was gon has made such choses in action the situated, and that its situs did not follow subject of taxation in this state, regardless the owner, but it was contended that the of the domicile of the owner. By the form- rule is otherwise as to intangible property. er section all personal property situated or The opinion does not agree that this rule owned within this state, except such as is is universal, even as applied to that class of expressly exempted, shall be subject to as- property; that many courts have held that sessment and taxation. By the latter sec- negotiable instruments for taxation have a tion it is provided that personal property situs without regard to the residence of the shall be construed to include all things in owner, citing several cases, and says that action, money on hand, or on deposit, and the reasoning of these cases applies equally all capital invested therein, and debts due to other intangible property than negotiable or to become due from solvent debtors, securities; that this fiction has no applica whether on account, contract, note, mort- tion to matters of taxation in such a case as gage, or otherwise, either within or without is presented by this record; that to all inthe state. The decision in Poppleton v. Yam- tents and purposes these notes and accounts hill County, 18 Or. 377, 23 Pac. 253, 7 L. R. are part of the business being conducted in A. 449, involved this question. In that case Augusta, and represent a part of the capital the property was in Washington and the employed in the business. That case fully owner domiciled in Oregon, and it was held sustains the case of Armour Packing Co. v. to have a situs in Washington, where the Savannah, 115 Ga. 140, 41 S. E. 237, which property was in possession of an agent, to be the court was asked to review and overrule. lent, and that it was taxable there, and See, also, In re Jefferson, 35 Minn. 215, 28 N. not in this state. W. 256; Billinghurst v. Spink County, 5 S. D. 84, 58 N. W. 272; People v. Trustees of Village of Ogdensburg, 48 N. Y. 390; Walker v. Jack, S8 Fed. 576, 31 C. C. A. 462.

In Buck v. Beach, 206 U. S. 392, 27 Sup. Ct. 712, 51 L. Ed. 1106, it is said that, for the purpose of taxation, it has long been held that personal property may be separated from the owner, and he may be taxed for it where the property is, regardless of the place of his domicile. To the same effect is Monongahela River Consol. C. & C. Co. v. Board of Assessors, 115 La. 564, 39 South. 601, 2 L. R. A. (N. S.) 637, 112 Am. St. Rep. 275. Metropolitan Life Insurance Co. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499, 51 L. Ed. 853, a case under the Louisiana statute, is to the same effect, where it is said that cash and bills receivable are, for the purpose of taxation, to be taken into account merely because they represent the capital, and are not to be omitted because their owners happen to have a domicile in another state. There is a valuable note to the case of Buck v. Beach, supra, in 11 Am. & Eng. Ann. Cas. 739, in which many cases are collated, citing with approval, among other cases, Poppleton v. Yamhill Co., supra.

In the case before us the choses in action were a part of the Oregon business, arising from sales made here, and the only evidence concerning them was in the hands of the Portland manager and were collectible by him; and whether the debtor is in or out of the state these debts are a part of the capital of the Oregon business, and were properly taxable in Multnomah county. The judgment must be affirmed.

(58 Or. 499) PLINKIEWISCH v. PORTLAND RY., LIGHT & POWER CO. (Supreme Court of Oregon. April 27, 1911.) 1. STREET RAILROADS ($ 98*)-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE.

A street car passenger, after alighting from a car eight or ten feet from a crossing, walked around behind the car and started to cross a parallel track. He walked with his head down, without looking or listening for an approaching car, and at the instant he stepped on the track he was struck by a car. By a casual glance he could have seen the car. Held, that he was guilty of contributory negligence as a matter of law.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. 8

A case almost identical in facts with the one before us is Armour Packing Co. v. Augusta, 118 Ga. 552, 45 S. E. 424, 98 Am. St. Rep. 128, in which the plaintiff was incorporated under the laws of New Jersey with a place of business in Augusta, Ga., in charge of a manager to whom it shipped meats to be sold, and the amounts received from sales were remitted directly to the Armour Packing Company at Kansas City, Mo.; none of the money being invested in Augusta. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

98.*]

2. STREET RAILROADS (8 93*)-OPERATION OF CARS-CARE REQUIRED.

A motorman observing a person near a track may assume that he will halt before step

ping on the track, and a motorman who first | nies; there being no other street railways in saw a person as he stepped on the track operation in the city. six or seven feet away, and who could not then stop the car to prevent an accident, was not guilty of negligence; the car being operated at about four miles an hour.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 197; Dec. Dig. § 93.*]

3. STREET RAILROADS (§ 102*)-NEGLIGENCE -PROXIMATE CAUSE.

Where the light was sufficient to enable a person nearly a block away to see an approaching car, the fact that a car striking a person stepping on the track had no headlight was immaterial on the issue of actionable negligence.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 203; Dec. Dig. § 102.*]

4. NEGLIGENCE (§ 122*)-LAST CLEAR CHANCE RULE.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 153; Dec. Dig. § 73.*] 9. STREET RAILROADS (§ 73*)—REGULATIONS

-VALIDITY.

A resolution of the council of a city, requiring street railway companies to use on their cars the "Hunter Drop Guard Fender," is not void as discriminating in favor of a particular fender, in the absence of anything, to show that the fender called for is a patented article, or one that anybody is prohibited from making or selling.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 153; Dec. Dig. § 73.*]

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh, Judge.

Action by Edward Plinkiewisch, admin

A plaintiff who admits negligence on his istrator of Otto Brandes, deceased, against own part, and who seeks to avoid its conse- the Portland Railway, Light & Power Comquences, has the burden of showing that, not-pany. From a judgment for defendant, plainwithstanding his negligence, the circumstances were such that defendant, after perceiving tiff appeals. Affirmed. plaintiff's peril, could, by ordinary care, have avoided the injury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 229; Dec. Dig. § 122.*]

5. STREET RAILROADS (§ 103*) - INJURIES TO PEDESTRIAN-NEGLIGENCE CONTRIBUTORY

NEGLIGENCE.

---

A person struck by a street car neither looked nor listened for an approaching car, nor took any precautions to insure his own safety. By a casual glance the approaching car would have been discovered. At the instant he stepped on the track the car struck him. The motorman could not see him until he stepped on the track a few feet away. Held, that the negligence of the street railway company in failing to stop the car, or in failing to ring the gong, and the negligence of the pedestrian were concurrent, precluding a recovery under the last clear chance rule.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*] 6. STREET RAILROADS (§ 103*)-INJURIES TO PEDESTRIAN-NEGLIGENCE CONTRIBUTORY

NEGLIGENCE.

Where the death of a person was the result of his being struck by a street car, which carried him a distance of 40 or 50 feet, the last clear chance rule did not apply to the alleged negligence in failing to stop the car more quickly after the collision, for the whole accident was but one transaction.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*] 7. CONSTITUTIONAL LAW (§ 63*) — DELEGATION OF LEGISLATIVE POWERS.

The proviso in L. O. L. § 7007, describing

Plaintiff's intestate was struck and killed by one of defendant's street cars, and this is an action to recover damages sustained by his estate by reason of such accident.

It is alleged that defendant was negligent in the following particulars: (1) In using a worthless and insufficient fender, different from that prescribed by the statutes of Oregon.

(2) In failing to have the car under control when passing another car. (3) In failing to ring the gong as the car approached the crossing. (4) In failing to keep a headlight burning. (5) In carelessly and negligently failing to stop the car after seeing deceased coming upon the track and into a place of danger. Defendant denied the alleged negligent acts, pleaded a resolution of the city council of Portland, authorizing the use of a fender of the character then used upon the car described in the complaint, and alleged that the accident was due wholly to the negligence of deceased in going upon the track without looking or listening for an approaching car.

The evidence introduced by plaintiff tended to show that deceased was on a car going east on Glisan street in Portland, and that when within eight or ten feet of the west crosswalk of Eleventh street, which interoff of the moving car on the south side and sects Glisan street at right angles, he stepped walked around behind the car, and started in a northerly direction across Glisan street. This street has a double railway track upon it. The width of the track is three feet nine inches, and the distance between the nearest rails of the two tracks is six feet. The evi[Ed. Note.-For other cases, see Constitution-dence shows that he walked with his head al Law, Cent. Dig. §§ 108-114; Dec. Dig. § 63.*] 8. STREET RAILROADS (§ 73*)-REGULATIONS

the character of fenders for use on street cars, providing that municipal authorities may substitute another approved fender, is not invalid as giving the municipal authorities the right to arbitrarily set aside a general state law, but merely gives municipalities the right to determine the character of fenders for street cars operated within their limits.

-VALIDITY.

A resolution of the council of a city, requiring two street railway companies to use a particular fender on its street cars operated within the city, is not void as discriminative, either in favor of or against the two compa

down, without looking for an approaching car, and that he stepped upon the track at the same instant that he was struck by a car going west, which was moving at a rate of from two to four miles an hour. He was

carried by the car a distance of from 40 to 50 feet, and was so bruised and injured that