as between themselves, a fiduciary relation analogous to a partnership,
it will be presumed, where there is no evidence to the contrary, that
each had an undivided one-third interest. (Salem-Fairfield Telephone
Assn. v. McMahan, 477.)
Joint Adventures-Mutual Rights-Corporations.
2. Where the interests of two or three persons owning a telephone
line as a joint venture were absorbed and taken over by a corporation,
but the third party retained his interest, held that the assignee of the
party retaining his interest was entitled to an undivided one-third
interest in the line, subject to the payment of his ratable share of the
operating expenses of a three-party line. (Salem-Fairfield Telephone
Assn. v. McMahan, 477.)
Joint Adventures-Fiduciary Relation Equivalent to a Partnership
3. Where sole agents were authorized by a gas company to dispose
of its corporate stock by their united efforts, such disposal of the
capital stock created a fiduciary relation tantamount to a partnership,
and in the absence of a showing it will be presumed that the parties
thus engaged shared equally the profits and losses pertaining to the
business. (Campbell's Gas Burner Co. v. Hammer, 612.)
Judgment Conformity to Pleadings.
1. In an action for an injury to real property by removing machin-
ery from a sawmill, plaintiff cannot recover for the taking and conver-
sion of personal property. (Montesano Lbr. Co. v. Portland Iron
Wks., 53.)
Judgment-Lien-Interest of Heirs.
2. Where a daughter of an intestate inherited his real prop-
erty under Section 7348, L. O. L., subject to her mother's dower
under Section 7286, and to the indebtedness of the estate and the
expense of administration, any judgment rendered against the
daughter and docketed prior to the day when she, as administratrix
applied for leave to sell the realty to pay debts of the intestate be-
came a lien on her interest therein. (Yeaton v. Barnhart, 249.)
Judgment-Docketing Justice's Judgment-Lien.
3. Section 2442, L. O. L., provides that a judgment of a Justice's
Court for the recovery of money does not become a lien upon real
property until a transcript thereof has been filed with the county
clerk. Section 2449 provides that judgment duly docketed in the
Circuit Court may be enforced as a judgment of that court. Section
771 requires the justice certifying the transcript to state that the
copy had been compared by him and is a correct transcript of the
judgment. Section 201 provides that a judgment of a Circuit Court
must be entered by the clerk within the day it is rendered, and
Section 205 requires the clerk immediately after recording the judg
ment to make a memorandum thereof in the lien docket. Held, that
judgments against the interest in real property inherited by defend-
ant from her father, not filed as required by such provisions before
her application, as administratrix, to sell realty of the estate to pay
debts, were not liens on her property, that judgments the transcripts
whereof were not certified as required by statute created no liens
thereon, but that a judgment duly docketed before such application
became a lien thereon. (Yeaton v. Barnhart, 249.)
Judgment Conclusiveness-Conviction of Crime.
4. Where defendant railroad ejected plaintiff passenger from its
train, arresting and imprisoning him in the city jail for being drunk
and drinking on its car, plaintiff's plea of guilty to a charge of being
drunk and disorderly in the city had no conclusive effect in his subse-
quent civil action for his arrest and ejection by the road. (Spain
v. Oregon-Wash. R. & N. Co., 355.)
Judgment-Conclusiveness-Issues Determined.
5. A party is bound by a judgment on all questions actually liti-
gated or which might have been determined. (Cooley v. Snake River
Imp. Co., 384.)
Judgment-Res Judicata-Estoppel by Judgment.
6. Estoppels by judgment must be mutual to be effective. (Cooley
▼. Snake River Imp. Co., 384.)
Judgment-Res Judicata-Estoppel.
7. An improvement district contracted for the construction of a
pumping plant for irrigation purposes and deposited its bonds with
a bank to be delivered to the contractor on the completion of the
contract, which stipulated for extra work. The bank brought inter-
pleader suit against the contractor and the district. The contractor
alleged the completion of the contract without making any demand
for extra work. The district did not demand damages for faulty
construction of the system, but denied the completion of the work
and alleged delay in the construction thereof. The court directed
delivery of the bonds to the contractor, who thereafter brought
action against the district for extra work, required to be performed
under the contract, under the order of the engineer. Held, that the
contractor sought to reopen the case to recover for extra work, and
he could not complain because the district counterclaimed for dam-
ages for faulty construction of the system on the ground that the
judgment directing a delivery of the bonds was conclusive on that
question. (Cooley v. Snake River Imp. Co., 384.)
Judgment-Vacation-Mistake-"Discretion."
8. The discretion accorded the trial judge by Section 103, L. O. L.,
to relieve a party from a judgment taken against him through his
mistake, inadvertence, surprise or excusable neglect, is a legal dis-
cretion, to be exercised in accordance with the spirit of the law and
in a manner to subserve, and not defeat, the ends of justice. (Fret-
land v. Cantrall, 439.)
9. Plaintiff failing to appear at the trial, and no good reason
for final determination of the cause being shown, the appropriate
remedy of defendants, if desiring a judgment, is by nonsuit, as
provided in Section 182, subdivision 3, L. O. L., which, by provision
of Section 184, does not bar another action for the same cause; and
not by judgment for defendant. (Fretland v. Cantrall, 439.)
Judgment-Setting Aside-Mistake.
10. A jury being impaneled when, by mistake or misunderstanding
as to date of trial, counsel for plaintiff were absent, and a judg-
ment for defendant, instead of one of nonsuit, being granted, on
the mere swearing of a witness, without any evidence being elicited,
it was an abuse of discretion not to grant relief therefrom under
Section 103, L. O. L. (Fretland v. Cantrall, 439.)
Judgment-When Conclusive Only as to Matters Actually Litigated—
Res Judicata.
11. The rule of res judicata allows to each party a day in court,
and requires that all matters of a judicial controversy shall be de-
termined in the same suit or action, if they can be legally joined, and
an opportunity is offered to plead them, and it follows that a final
judgment or decree bars all subsequent proceedings upon the same
cause of suit or action and of every other matter that might have
been decided, relating either to the cause of action or matter of de-
fense, but if founded upon a different cause of action or ground of
defense, the prior judgment or decree is an estoppel only as to the
matters actually litigated. (Campbell's Gas Burner Co. v. Hammer,
612.)
Judgments-Matters Concluded.
12. From the agreed statement of facts filed in this suit it appears
that the corporation appointed four persons as sole agents to sell and
dispose of the corporate stock, who were to receive as their commis-
sions all sums obtained for said stock in excess of $7 a share. After
the agents had sold the stock and the corporation became liable for
the commissions, three of them disposed of their claims and assigned
same to other parties, while the other was adjudicated a bankrupt.
The assignees of the claims for commissions entered into a contract
with an attorney agreeing to allow him 30 per cent of the amount
recovered. Prior to the hearing and trial of the suit of the attorney
against the corporation, two of the claimants compromised and exe-
cuted releases to the corporation for the amount of their claims. Held
that after the compromise and settlement was made by the corporation
with the two agents, the defendant in the law action was not obliged
to allege in its answer the fact of such assignments, and its failure
so to do will not bar a subsequent suit to enjoin an execution in the
interest of one claiming a percentage of the judgment on the causes
of action assigned. (Campbell's Gas Burner Co. v. Hammer, 612.)
See Appeal and Error, 18, 31.
See Executors and Administrators, 5.
See Mines and Minerals, 3.
See Pleading, 7.
See Appeal and Error, 25.
See Courts, 3, 4.
See Equity, 2.
See Executors and Administrators, 2.
1. Where, in an action for personal injuries, the defendant was
president of a bank in which one juror was a depositor, while two
others were its debtors for considerable sums, the retention of such
jurors over plaintiff's objection was proper, since the indirect relation-
ship of the jurors to the defendant was not such as to disqualify
them, as a matter of law; the propriety of their sitting being a ques-
tion of fact for the trial court, not reviewable in the absence of an
abuse of discretion. (Twitchell v. Thompson, 285.)
See Appeal and Error, 11.
Justices of the Peace Supplementary Proceedings - Disobedience of
Order-Punishment-Proceedings.
1. Where a judgment debtor is discharged, in proceedings for con-
tempt before a justice of the peace in not paying over, as ordered,
money found to be in his possession in supplementary proceedings,
and the judgment creditor appeals to the Circuit Court, the burden
is on the creditor to show that the money is still in the debtor's
possession; there being no presumption thereof. (State v. Rider,
318.)
LA GRANDE, CHARTER OF.
See Birnie v. La Grande, 531.
LANDLORD AND TENANT.
Landlord and Tenant-Covenants-Quiet Enjoyment.
1. In case of a demise, a covenant of quiet enjoyment is implied,
for from the fact of the letting, it will be presumed that the land-
lord had the right to lease, and that he agreed to protect the lessee
against eviction, either by title paramount or his own acts. (North-
ern Brewery Co. v. Princess Hotel, 453.)
Landlord and Tenant-Covenants Running With Land-Implied Cov-
enants.
2. The implied covenant of quiet enjoyment arising in case of
a lease is not in violation of Section 7105, L. O. L., declaring that
no covenant shall be implied in any conveyance of real estate,
for a lease of land is not a conveyance. (Northern Brewery Co. v.
Princess Hotel, 453.)
Landlord and Tenant-Liability for Rent-Eviction by Receiver.
3. Where, at the suit of the landlord, the tenant was evicted,
and a receiver, appointed by the court, took possession of the prem-
ises, the tenant's liability for rent then ceased, and the landlord
could, on foreclosure of a chattel mortgage to secure the rent, re-
cover only that already accrued. (Northern Brewery Co. v. Princess
Hotel, 453.)
See Municipal Corporations, 5.
See Appeal and Error, 22.
Cited and Construed in this Volume.
See Table in Front of this Volume.
See Constitutional Law, 1, 7, 8.
See Constitutional Law, 2.
See Mines and Minerals, 1-3.
Mandamus-Questions must be of Sufficient Importance.
1. The matter involved, in order to justify mandamus, must be sub-
stantial, and of sufficient importance to invoke the use of the remedy.
(State ex rel. v. Hare, 540.)
Mandamus-Unjust Claims or Correction of Errors not Grounds for
Issuance.
2. The writ of mandamus is used to promote principles of justice,
and will not issue to support unjust claims, although technically regu
lar, neither will it be employed for the correction of errors. (State
ex rel. v. Hare, 540.)
Mandamus-Necessity to Demand a More Specific Estimate Before
Mandamus is Granted.
3. It does not appear that any request was made to the County
Court for a more specific estimate. As a general rule, however, where
the duty to be performed by an official is of a purely public nature,
and where there is no one person upon whom the right or duty de-
volves to make a demand for performance, an express demand or re-
fusal is not necessary. There are exceptions to this rule, and where
the proper mode of performance is doubtful, a demand specifying the
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