der said verbal agreement and contract that the same should be conveyed to her"; that she had undisputed possession of the land which she cultivated more than 26 years and up to the time of her death, since which the plaintiffs have been in possession of the premises, except a small portion thereof which with the consent of their mother was conveyed by their father to the plaintiff E. Lucille Stalker. Reference is then made to the correspondence between their mother and father, as hereinbefore set forth, and it is further alleged, upon information and belief, that pursuant to such agreement and correspondence their father executed to their mother a deed to the premises, which deed was either lost in the mail, or destroyed by some person to whom it was intrusted by the grantor to be posted to the grantee; and that the plaintiffs are informed and believe that the defendants as the heirs of Alexander Stalker are claiming an adverse interest in the land. The answer denies the material averments of the complaint, and for a separate defense and by way of cross-bill alleges that the defendants are the sole heirs at law of Alexander Stalker, deceased, the issue of his legal marriage with their mother his first and only wife; that no marriage ever occurred between their father and the plaintiffs' mother; and that their father died seised of an estate of inheritance in and to the real property described in the complaint, to all of which they are entitled by inheritance. The reply put in issue the allegations of new matter in the answer, and, the cause having been tried, the plaintiffs secured a decree as prayed for in the complaint, and the defendants appeal. W. H. Strayer and William Smith, both of Baker, for appellants. L. C. Garrigus, of Portland, and John L. Rand, A. A. Smith, and Wm. H. Packwood, Jr., all of Baker, for respondents. MOORE, C. J. (after stating the facts as above). It is contended that as Emily E. Stalker was living upon the land in Baker county, Or., when Alexander Stalker returned to Idaho, she did not take possession of the premises under any contract that the title to the real property should be conveyed to her, for which reason an error was committed in rendering the decree brought up for review. In Roberts v. Templeton, 48 Or. 65, 80 Pac. 481, 3 L. R. A. (N. S.) 790, it was held that where the plaintiff, up to the time of his oral purchase of the interest of a tenant in common in a mine, was in possession under a contract with a cotenant of the vendor, so that his prior possession merged into that under his purchase, there was not such a change of possession under the contract as to take the case out of the statute of frauds, and for that reason specific enforcement of the oral agreement would not be decreed. To the same effect, see the case of Tonseth v. Larsen, 69 Or. 387, 138 Pac. 1080. [1] We do not regard the possession of the real property which was secured and taken by Emily E. Stalker as coming within the rule announced in that case. She came upon the land, it is true, before Mr. Stalker went back to Idaho, never to return; but she was not in possession of the property, nor did she secure a right thereto, as a tenant or otherwise, until he abandoned the premises. It is possible this plural wife might never have been treated as Hagar and driven off the land as a trespasser by the person so holding the legal title so long as he lived. She was never compelled to pay any rent for the use of the real property, but she could undoubtedly have been evicted if an action had been instituted for that purpose, unless she could have interposed the plea that she took possession under and made valuable improvements pursuant to an oral contract that she was to secure the legal title when she had become so pleased with the new home as not to leave it and return to Idaho and thereupon possibly subject Mr. Stalker to indictment and prosecution for polygamy. "The mere physical fact of possession," says a noted author, "is not of itself conclusive, nor even material. The possession must be taken and held with the intent of carrying out and executing the agreement. The existence of this intent is vital, and is the essential element which the courts require as a condition of the part performance upon which a decree of specific execution may be based. This intent, however, cannot be shown by proving the verbal contract between the parties, for such a course would be a most vicious arguing in a circle. It must the agreement." therefore be established by matter outside of Pomeroy, Specific Performance (2d Ed.) § 116. As between strangers a change of possession of land is sufficient to take a case out of the statute on the ground of fraud, and a party who has thus secured possession of real property under a parol contract to purchase the premises may enforce, in a suit in equity, a specific performance of the agreement, because otherwise he might be treated as a trespasser. Coney v. Timmons, 16 S. C. 378. That Mr. Stalker did not drive the plaintiffs and their mother from the land probably resulted from his innate sense of duty to furnish them a home. If he had died intestate soon after possession of the premises was delivered to the plural wife, it is reasonable to suppose that the defendants, who are the issue of a lawful marriage, could have had no great love for the plaintiffs and would have undertaken to eject them from the land, as is evidenced by an averment in the answer to the effect that Alexander Stalker died seised of an estate of inheritance in and to the real property, and the defendants as his sole heirs at law are entitled thereto. The possession of real property, when taken pursuant to an oral contract for the sale thereof, is generally held to be such an act of part performance as to take the case out of the statute of frauds, even without any additional circumstance, such as the payment of the consideration, or the making of improvements. Pomeroy's Specific Performance (2d Ed.) § 115; Sprague v. Jessup, 48 Or. 211, 83 Pac. 145, 84 Pac. 802, 4 L. R. A. (N. S.) the place because he held the deed for it; that he hadn't given us or mother a deed. Q. What ter off the way it is, because I pay the taxes.' did he say? A. He said, 'You are really bet The defendant A. R. Stalker, referring to a conversation he had at Salt Lake City, Utah, with his father, respecting the demand of Emily E. Stalker, testified: "He said that she had asked him for a deed to the Pine Valley property, but he had not made her any deed, and didn't intend to make her any deed." 410; Barrett v. Schleich, 37 Or. 613, 62 Pac. 792. In the latter case, however, it was ruled that, when any relation of affinity or consanguinity was shown to exist between the vendor and vendee under a parol contract to Notwithstanding contrary inferences may convey land, the making of valuable improve- reasonably be deduced from the testimony, ments was essential to establish the right it is believed the oral declarations so imputto enforce specific performance of the agree-ed to Alexander Stalker, when viewed in ment. To the same effect, see Pugh v. Spick-connection with the admissions contained in nall, 43 Or. 489, 73 Pac. 1020, 74 Pac. 485. his letters hereinbefore set forth, unmistak[2] In the case at bar, no direct evidence ably show that a parol contract had been was offered tending to substantiate the mak- entered into between him and his plural ing of the parol agreement, because both wife, whereby he surrendered to her the land parties thereto were dead. Such fact, how- in Baker county, Or., and that when he ever, is sought to be established by inference abandoned the premises and returned to and by declarations against interest made Idaho she thereupon took possession of the by Mr. Stalker. It must be admitted that same and, relying upon his oral agreement the oral admissions of a party ought to be to execute to her a deed of the property, viewed with caution. L. O. L. § 868, subd. made permanent and valuable improvements 4. Such avowals may not have been correct- thereon. ly understood, or accurately remembered so as precisely to be repeated. So, too, in the pretended iteration, words, phrases, or sentences may have been purposely misquoted in order to promote a selfish interest. The plaintiff J. L. Stalker testified that at different times he had heard his father say the land in Baker county, Or., was for the plaintiffs and their mother. The plaintiff W. R. Stalker testified he had heard his father several times say to his mother, "The place is for you and the children." The stipulated testimony of the plaintiff W. H. Stalker is to the effect that his father and mother were members of the Mormon church, and each had told him they had been married according to the rites of that religious organization. "That at the time my father left Pine Valley for Idaho he told my mother in my presence that he had bought the place mentioned in the complaint for her and her children, and that he gave it to her, and that it was hers, and that he was going to Idaho and was not coming back, and that he would after a while send her a deed, but that he didn't give her a deed at that time because he was afraid if he did she might be come dissatisfied, sell the place, and return to Idaho and get him into trouble, and for that reason he was going to hold the title for a while, but for her to go ahead and improve the place, and that he would give it to her in consideration of her supporting and taking care of his children." The plaintiff W. R. Stalker, in referring to a conversation he had with Alexander Stalker, testified: It will be remembered that this suit is predicated on the assumption that Alexander Stalker had duly executed a deed of the land to the plaintiffs' mother and had delivered the sealed instrument to some person to be mailed to her. The prayer of the complaint is that the defendants be required to set forth by answer their alleged claim to the premises, that their asserted right to the land may be quieted and the plaintiffs' title confirmed, "and for all proper and equitable relief." It is possible such deed may never have been executed, as seems to be indicated by the testimony of the defendant A. R. Stalker, who stated upon oath that his father informed him he had not given the deed and did not intend to make any to Emily E. Stalker. The prayer of the bill being also for general relief, the plaintiffs as the sole heirs of Emily E. Stalker, deceased, are entitled to a specific performance of the terms of the parol agreement whereby she was given possession of the real property and made improvements upon it. The decree of this court, when the mandate is entered in the court below, shall stand as and for a conveyance by each of the defendants of all his right, title, interest, and estate in or to the real property described in the complaint, and also each of the defendants and all persons claiming or to claim by, through, or under them, or either of them, any estate or interest in or to the premises or any part thereof, will be barred, and the plaintiffs' title thereto quieted. "Father asked why we had gone away to school and hadn't stayed on the place, and I The decree of the trial court should theretold him we didn't feel a very great interest in | fore be affirmed, and it is so ordered. (79 Or. 223) - DARBY v. HINDMAN et al. (Supreme Court of Oregon. Nov. 30, 1915.) 1. WILLS 52 PROBATE BURDEN OF PROOF. In a will contest, the burden of proof is on the proponent to establish every fact necessary to the validity of the will, including testator's mental capacity. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. 52.] 2. WILLS 45- TESTAMENTARY CAPACITY. Where an alleged will was executed while testator was in a semiunconscious condition, incapable of comprehending his relation to the persons who might have been the objects of his bounty, or the scope and bearing of the provisions of the will, the whole contents of which were the suggestion of other minds, the testator having signed it without knowledge of what he was doing, another person holding the pen and directing his hand, such alleged will was invalid for lack of a sound and disposing mind, or testamentary capacity, on the part of the testator. [Ed. Note. For other cases, see Wills, Cent. Dig. § 92; Dec. Dig. 45.] the alleged will was executed he was in a semiunconscious condition, and that he was neither capable of comprehending his relation to the persons who were or should or might have been the objects of his bounty, or the scope and bearing of the provisions of his will. The testimony which seems to us to be the most likely to be disinterested and fair, and which we therefore accept, indicates that he did not know he was signing or executing a will, but that its whole contents were the suggestion of other minds and his signature, which was effected by another person holding the pen and directing his hand, was, so far as he was concerned, a wholly unconscious act, and of no more validity than if he had been then, what he actually was a few hours later, a corpse. The testimony is very conflicting, and a discussion of it in detail would consume many pages in the Oregon reports, and would be of interest or benefit to nobody, and we In Banc. Appeal from Circuit Court, Bak- therefore state only the ultimate conclusions er County; Gustav Anderson, Judge. arrived at from our study of the testimony. The decree of the circuit court is revers Petition contesting the validity of a probated will by Mary H. 'Darby against Al-ed, and a decree will be entered here, debert Hindman and others. From a decree claring the alleged will invalid. sustaining the validity of the will, contestant appeals. Reversed, and a decree entered declaring the alleged will invalid. This is a contest as to the validity of the will of one Thomas Huffman, who died in Baker county about September 11, 1913. An instrument, purporting to be his last will and testament, was admitted to probate on October 23, 1913, and thereafter the contest ant filed her petition contesting the alleged will on the ground of want of mental capacity in the testator to execute a will. The county court entered a decree sustaining the validity of the will, which decree was affirmed by the circuit court upon appeal, and contestant appeals to this court. A. S. Bennett, of The Dalles, and John L. Rand, of Baker, for appellant. Claude Hindman, of Baker, for respondents. (78 Or. 551) METZLER-HEGSTED LUMBER CO. v. FARMERS' UNION WAREHOUSE & MERCANTILE CO.⭑ (Supreme Court of Oregon. Nov. 30, 1915.) 1. APPEAL AND ERROR 384-APPEAL BOND -SUFFICIENCY. dertaking of appellant shall be given to the efUnder L. O. L. § 551, providing that the unfect that appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal, but that such underfurther provides that if the judgment or decree taking does not stay the proceedings, unless it appealed from be for the recovery of money or personal property, or its value, and if it be affirmed, appellant will satisfy it so far as affirmed, an undertaking in literal compliance with the statute was not insufficient because it did not state to whom appellant would pay any amount adjudged due upon it. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2049-2056; Dec. Dig. 384.] TERS PRESENTED FOR REVIEW. MCBRIDE, J. (after stating the facts as above). [1, 2] The burden of proof was upon the proponent to establish every fact nec- │2. APPEAL AND Error 671–Record—Matessary to make a valid will, including the mental capacity of the testator. Hubbard v. Hubbard, 7 Or. 42; Luper v. Werts and Smith, 19 Or. 122, 23 Pac. 850; Holman's Will, 42 Or. 345, 70 Pac. 908; Mendenhall's Will, 43 Or. 542, 72 Pac. 318, 73 Pac. 1033. There is no dispute between counsel as to the rules of law applicable to this case; the sum of all the authorities being: "A sound and disposing mind or testamentary capacity implies that the testator fully understands what he is doing and how he is doing it." A very careful examination of the testimony here fails to satisfy us of the testamentary capacity of the decedent. On the contrary we are convinced that at the time Where no mention was made in the bill of of plaintiff's assignee in place of plaintiff, and it exceptions, or in the abstract, of the substitution did not appear that defendant made any opposi tion to the substitution, or raised the question in any way in the circuit court, its contention that an assignment by plaintiff for the benefit of its creditors and the substitution of the assignee in plaintiff's place ousted the court of jurisdiction could not be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.] TERS PRESENTED FOR REVIEW. In an action by the M.-H. Lumber Co. for the purchase price of lumber, which defendant contended was sold to a building contractor and *Rehearing denied. not to it, one M. testified that a contractor was constructing the building, and that he gave an undertaking in connection with the contract, signed by M. & H. Held that, in the absence of any pleading showing that plaintiff signed the building bond and that it contained terms inconsistent with its present contention, and in the absence of the bond from the record, the contention that plaintiff could not recover because it executed the contractor's bond could not be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.] 4. ATTORNEY AND CLIENT -NECESSITY OF PROOF. 86-ADMISSIONS tunity to and did oppose the testimony thus offered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-4152; Dec. Dig. 1047.] Appeal from Circuit Court, Union County; J. W. Knowles, Judge. Action by the Metzler-Hegsted Lumber Company against the Farmers' Union Warehouse & Mercantile Company. Judgment for plaintiff, and defendant appeals. Affirmed. Both parties to this action are corporations. The plaintiff declares in substance In an action for the purchase price of lum- that between July 1, 1910, and January 1, ber, where defendant's counsel admitted during 1911, it sold and delivered lumber and buildthe trial that the amount of lumber described in the complaint, of the reasonable value and to the ing material of the reasonable value of $2,amount alleged, was delivered, stating that the 997.82 to the defendant, which amount the question was to whom it was sold and delivered, latter promised to pay to the plaintiff, and there was no necessity of any further proof conthat no part of the same has been paid, excerning the delivery of the lumber and its value. [Ed. Note.-For other cases, see Attorney and cept certain sums, leaving a balance due of Client, Cent. Dig. §§ 155–160; Dec. Dig. 86.] $1,449.59. Every allegation of the complaint is denied, except the artificial character of the parties, and as affirmatively stated to this effect: That all payments credited in the complaint were sums of money which the defendant, with the consent of one W. D. Eblin, paid to the plaintiff at its request, for Eblin, out of money due him from the defendant. This new matter was denied by the reply. A verdict and judgment for the plaintiff for the balance claimed resulted after a trial, and the defendant appeals. PERSONS LIABLE 5. ESTOPPEL 78-SALE [Ed. Note.-For other cases, see Estoppel, In an action for the purchase price of lumber, though plaintiff pleaded an implied contract, it was not error to permit its witness to state that the lumber was to be furnished at certain rates, since, when under a complaint based on a quantum meruit testimony is received tending to establish a contract for the amount demanded, the sum disclosed by the evidence will be construed as the reasonable value, in order to effectuate substantial justice. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1049-1055; Dec. Dig. 358.] 7. SALES 364 - ACTIONS FOR PRICE STRUCTIONS. - INWhere in an action by the M.-H. Lumber Co. for the purchase price of lumber, which defendant claimed was sold to a contractor and not to it, there was no allegation that the M.-H. Lumber Co. and M. & H. were the same institution, the court properly charged that a bond executed by M. & H. on behalf of the contractor could not affect plaintiff because it was not a party thereto, and could be considered only in determining whether plaintiff had knowledge of the contract between defendant and the contractor, and to contradict the testimony of its president, who testified that the lumber was furnished at defendant's special instance and request. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1065-1076; Dec. Dig. 364.] 8. APPEAL AND ERROR 1047 HARMLESS ERROR-ORDER OF PROOF. Defendant's rights were not abused by admitting testimony in rebuttal that might have been introduced in chief, where it had an oppor Crawford & Eakin, of La Grande, for appellant. John L. Rand, of Baker, and John S. Hodgin, of La Grande, for respondent. BURNETT, J. (after stating the facts as above). [1] As a preliminary question it becomes necessary to dispose of the plaintiff's motion to dismiss the appeal. That result is demanded because the undertaking does not state to whom the appellant will pay any amount adjudged to be due upon it. The only authority noted for that contention is Johnston v. Letson, 3 Ariz. 344, 29 Pac. 893, cited in 39 Cyc. 678. That case was decided under a statute which expressly required the undertaking to be given to the respondent. Our Code (section 551, L. O. L.) says: "The undertaking of the appellant shall be given with one or more sureties to the effect that the appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal; but such undertaking does not stay the proceedings, unless the undertaking further provides to the effect following: (1) If the judgment or decree appealed from be for the recovery of money, or of personal property, or the value thereof, that if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed." The undertaking here involved complies literally with this provision of our Code. The precedent above cited is not applicable. The motion to dismiss the appeal must therefore be overruled. [2] It is suggested in the brief that dur For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing the pendency of the action the plaintiff made an assignment under the state law on that subject for the benefit of its creditors, and that the assignee was substituted in its place. The defendant argues that this ousted the state court of its jurisdiction over the case. No mention is made of this matter in the bill of exceptions, and it does not appear that the defendant made any opposition to the substitution, or raised the question in any way in the circuit court. It is unnecessary to cite authority that we can consider only those errors of the circuit court which have been legally excepted to or which appear in the record before us. The abstract filed by the appellant defendant contains no allusion to the change of parties; hence we cannot give it consideration. "Mr. Crawford: I don't suppose, Mr. Rand, that there is any question about the amount or warehouse; but who the lumber was sold and character of the lumber delivered there for that delivered to, I think, is the main question in the case. At least we are not going to controvert the amount and character of the lumber delivered to the warehouse. "Mr. Rand: Then I suppose we could consider it admitted that the amount of lumber described in the complaint, of the reasonable value to the the question being as to whom it was sold. amount alleged in the complaint, was delivered; "The Court: You admit that, do you? This obviated the necessity of any further proof about the delivery of the lumber and the value thereof. [5] The question to be determined was: To whom was the lumber sold? The knowledge of Metzler, who appears to have been president of the plaintiff, to the effect that Eblin had a contract for the erection of the building, and the fact that Metzler, whether as such president or as a member of the firm of Metzler & Hegsted, had signed Eblin's bond, do not constitute an estoppel as against the plaintiff, but can have no greater value than admissions against its interest or contradictory statements. The weight of the testimony as affected by any such factors was for the jury to determine in their quest for the truth. There is nothing in the pleadings preventing the plaintiff from proving the actual truth, notwithstanding the apparent inconsistencies of conduct or statement on the part of its officers. There is ample evidence to take to the jury the question of whether or not the lumber was furnished to the defendant at its special instance and request. [3] During the progress of the trial, to support its case, the plaintiff called as a witness one E. J. Metzler, who gave testimony tending to show that the lumber in question was furnished at the special instance and request of the defendant to be used in the construction of its warehouse. On his cross-examination it was developed that one Eblin was a contractor for the construction of the building; that he had given an undertaking in connection with the contract, which was signed by Metzler & Hegsted, by E. J. Metzler; and that in course of the work the defendant issued its check payable to Metzler & Hegsted, which was cashed on the indorsement of the plaintiff, Metzler-Hegsted Lumber Company. The defendant claims under all this that it shows that the material was furnished to the contractor, Eblin, and not to the defendant, and that in reality the builder's bond was executed by the plaintiff, [6] Objection was also made to the ruling for which reason it cannot recover in this ac- of the court in allowing the witness Metzler tion. Neither of these contentions is stat- to state that the lumber was to be furnished ed in the pleadings. The conditions of the at certain rates. The defendant argues that bond are not disclosed, as that instrument this was allowing the plaintiff to recover does not appear in the record before us. upon an express contract, after having alIn the absence of any pleading showing that|leged an implied agreement. But it is statthe plaintiff in fact signed the building bond, and that it contained terms inconsistent with the present contention of the plaintiff, we cannot give heed to the assignments of error on that point. ed in Schade v. Muller, 146 Pac. 144: 9 "The rule is quite general that, in an action upon an express contract, the plaintiff cannot recover upon proof of an implied agreement. Cyc. 749. Where, however, under a complaint counting on the reasonable value of services rendered, testimony is received tending to establish a contract for the amount demanded, such sum as disclosed by the evidence will be construed as the reasonable value in order to effectuate substantial justice. West v. Eley, 39 Or. 461, 65 Pac. 798. To the same effect see, also, Elder v. Rourke, 27 Or. 363, 41 Pac. 6." [7] Objection is made to the instructions of the court to the effect that the only purpose [4] The defendant also urges that, taking all the testimony together, the story for the plaintiff is so improbable and unreasonable that a fair mind must reject it, and that the court was in error in not directing a verdict for the defendant after all the evidence was in. In substance, the witness Metzler testified that he interviewed the building committee of the defendant when they were for which the jury was entitled to consider measuring the site of the proposed warehouse, and that they not only requested him to furnish the lumber, but stated to him that, if he did so, the defendant would see that he was paid. During the trial, according to the report of the official stenographer, the following oral stipulation was made in the bond said to have been executed by Metzler & Hegsted was to determine whether the plaintiff company had knowledge of the contract between defendant and Eblin, and to contradict the testimony of Metzler. In explanation of the matter the court charged the jury to the effect that the bond could |