conditions, but failed to remove the timber within the time specified, and has since “exercised and enjoyed the granted rights and privileges of entering said land for the purpose of removing its said timber, and is now engaged in removing said timber from said land. That there is now due and owing plaintiff from defendant, under the terms and conditions contained in said deed upon which the grant of said timber was made, and under said agreement, and for the use and occupation of said land, and for the exercise and enjoyment of said granted rights and privileges, mentioned in the conditions contained in said deed, the sum of $100 for the year commencing July 13, 1893, and ending July 12, 1894, and interest thereon at the rate of 8 per cent. per annum since said 12th day of July, 1894." The complaint then concludes with a prayer for judgment. The defendant demurred to each separate cause of action on the ground that it did not contain facts sufficient to constitute a cause of action, which, being overruled, it refused to answer or plead further, and judgment was entered against it for the amount prayed for in the complaint, from which this appeal is taken.

J. W. Hamilton and John A. Gray, for appellant. A. J. Sherwood, for respondent.

BEAN, J. (after stating the facts). The contention for the defendant seems to be that the statement of the first cause of action is insufficient, because it does not show a liability on the part of the defendant under the terms and conditions of the lease from the plaintiff to Luse. But we do not understand this to be an action on the lease, but for use and occupation of the premises by the defendant, with plaintiff's consent, after the expiration of such lease; and that the allegations concerning the lease to Luse were intended as a mere matter of inducement for the purpose of showing the circumstances under which defendant came into possession of the premises. The complaint, no doubt, contains much unnecessary matter, but it is averred, substantially, that defendant entered into possession and occupied the premises by consent of the plaintiff, as the successor in interest of Luse, and while so occupying paid the rent therefor at the rate stipulated in the lease during the term, and that after the expiration of the term it continued to so occupy and use the premises as a tenant by and with the consent of plaintiff. These facts, if true, establish the relation of landlord and tenant between the plaintiff and defendant, so as to entitle the plaintiff to recover for the use and occupation of the premises, and the lease in question is admissible to fix the amount of rent. 1 Tayl. Landl. & Ten. §§ 19, 22; Wood, Landl. & Ten. § 552.

The objection to the statement of the second cause of action is that it appears there

from that the deed containing the stipula tions upon which the action is founded was not signed by the defendant. But the rule is well settled that a deed poll, when accepted by the grantee, becomes the mutual act of the parties; and a stipulation therein to be performed by the grantee becomes, by force of such acceptance, a valid contract on his part upon which an action may be maintained. 1 Tayl. Landl. & Ten. § 147; Goodwin v. Gilbert, 9 Mass. 510; Newell v. Hill, 2 Metc. (Mass.) 180. It is clear, therefore, that an action lies for the rent reserved in the deed from the plaintiff to the defendant, although not signed by the latter. It follows that the judgment of the court below must be affirmed, and it is so ordered.

HAAS V. DUDLEY et al.1

(30 Or. 355)

(Supreme Court of Oregon. March 16, 1897.) SALE OF MORTGAGED PREMISES ASSUMPTION OF MORTGAGE BREACH OF COVENANTMEASURE OF DAMAGES.

1. An agreement by the purchaser of mortgaged premises to assume the mortgage, and save the grantor barmless therefrom, is an absolute undertaking to pay the mortgage debt when due, and nct a mere contract of indemnity.

2. On foreclosure of a mortgage which the vendees of a part of the mortgaged premises had agreed to pay, and to save the vendor harmless therefrom, the latter may recover from his vendees the value of the lots retained by him, which were sold with the rest to satisfy the mortgage debt.

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Jacob Haas against W. L. Dudley and others to recover for breach of contract. From a judgment in his favor, plaintiff appeals. Affirmed.

Some time prior to September 29, 1892, the plaintiff purchased of one Shaw certain real property situate in Mt. Tabor Garden addition, in Multnomah county, Or., upon which there was a mortgage to secure the payment of $5,812, and as part of the purchase price assumed and agreed to pay $5,712 of the sum so secured. On the date named, plaintiff sold to the defendants W. L. Dudley, T. C. Powell, T. A. Jordan, and W. A. Cardwell a portion of such real property, consisting of 163 lots, and conveyed the same by deed to the defendant Powell, as trustee, for the use and benefit of all the defendants, leaving of such property 175 lots unsold. The deed contains a warranty against all incumbrances except the mortgage above referred to, and a stipulation to the effect that the grantee assumes the payment of $5,712 thereof. At the same time, and as part of the same transaction, the defendants entered into an undertaking with plaintiff, whereby it was stipulated, among other things, that: "Whereas, said Jacob Haas is so selling and conveying to said T. C. Powell, for our benefit only, one hundred and sixty-three lots of said property by

1 Rehearing denied.

him purchased from said Edson L. Shaw, and retains one hundred and seventy-five lots of said property, as shown by said deed from Shaw; and whereas, we are to assume and pay and save said Haas harmless from all of said mortgage, and, in the event of his selling or disposing of any said remaining lots, to discharge said mortgage as to such lots: Now, therefore, * we further, and for the same consideration hereinabove expressed, jointly and severally promise and agree to and with said Jacob Haas, his heirs, grantees, and assigns, that we will at any time when Jacob Haas, his heirs, grantors, or assigns, shall sell or desire to sell or dispose of any of the remaining lots or blocks or the whole thereof in said 'Mt. Tabor Garden' still owned by him at the date of this instrument, fully pay, satisfy, and discharge said mortgage, so far as it may be a lien upon said lot or lots he may desire to sell or release, so that he can, in so far as said mortgage is a lien thereon, sell and convey the same free from incumbrances. And we agree to assume and pay off said mortgage in so far as said Haas, his heirs, grantees, and assigns, are concerned, or in any way liable and save him and them wholly harmless therefrom, and satisfy, release, and discharge the same in so far as it forms any lien upon the remaining lots in said tract yet owned by said Haas, or by him conveyed to said T. C. Powell." Thereafter plaintiff sold some of the remaining lots which the defendants failed to have released from the lien of the mortgage as agreed, and later on the mortgage was foreclosed, the property covered by it sold, and the demand thereby satisfied, leaving no surplus. The court instructed the jury at the trial that the measure of plaintiff's recovery was the value at the time of the foreclosure sale of the 175 lots so reserved by him. The plaintiff asked for the following instruction, which was refused: "I instruct you that the measure of damages in this case is the amount fixed by the contract signed by the defendants and introduced in evidence by plaintiff and agreed then to be paid, with the interest thereon, less any amounts which you may find that the defendants, or either of them, have paid thereon since the date of the said contract, if you find that any payments have been made." There were objections to the introduction of testimony which saved to plaintiff the same questions raised upon the instruction given and the one asked and refused. The verdict was in favor of plaintiff for $1,407, and judgment accordingly, from which he prosecutes this appeal.

F. A. E. Starr, for appellant. R. Stott, for respondents.

WOLVERTON, J. (after stating the facts). Two questions are presented: First. What is the nature of the defendants' obligation upon which plaintiff seeks to recover? Is it an absolute obligation to pay plaintiff's lia

bility, or is it merely an undertaking of indemnity? And, second, what is the measure of plaintiff's relief? An undertaking to pay the debt for which another is obligated or has assumed to pay may be sued upon by the obligee and recovery had to the limit of the undertaking, or in so far as the same remains undischarged, as soon as default has been suffered; and this regardless of whether the obligee has paid the debt or not. Hodgson v. Bell, 7 Term R. 97; Penny v. Foy, 8 Barn. & C. 11; Loosemore v. Radford, 9 Mees. & W. 657; Lethbridge v. Mytton, 2 Barn. & Adol. 772; Robinson v. Robinson, 24 Law T. 112; Ham v. Hill, 29 Mo. 275; In re Negus, 7 Wend. 498; Port v. Jackson, 17 Johns. 239; Merriam v. Lumber Co., 23 Minn. 322; Lathrop v. Atwood, 21 Conn. 116; Hume v. Hendrickson, 79 N. Y. 127; Hall v. Nash, 10 Mich. 303; Redfield v. Haight, 27 Conn. 31; Furnas v. Durgin, 119 Mass. 500. It was early objected that, if the obligee was permitted to recover before he had discharged the debt due the principal creditor, the obligor might be required to pay the same debt twice. Such was the objection made in Loosemore v. Radford, supra, upon the following state of facts: Two persons being jointly indebted upon a promissory note, one as principal and the other as surety, the principal covenanted with the surety to pay the amount of the note to the payees on a given day, but made default, and was sued upon his covenant. In determining the liability, Baron Parke says: "This is an absolute and positive covenant by the defendant to pay a sum of money on a day certain. The money was not paid on that day, nor has it been paid since. Under these circumstances, I think the jury was warranted in giving the plaintiff the full amount of money due upon the covenant. If any money had been paid in respect of the note since the day fixed for the payment, that would relieve the plaintiff pro tanto from his responsibility. The defendant may perhaps have an equity that the money he may pay to the plaintiff shall be applied in discharge of his debt; but at law the plaintiff is entitled to be placed in the same situation under this agreement as if he had paid the money to the payees of the bill." In Robinson v. Robinson, supra, by an indenture of dissolution of a partnership, the defendant, who acquired the partnership property, covenanted to pay and satisfy within 18 months all the debts of the partnership, and to indemnify and save plaintiff harmless from all costs, losses, claims, and demands which he might incur or become liable for in respect of the partnership debts. In an action against defendant upon this covenant, Lord Campbell held that the measure of damages was the whole amount of the debts which he had not paid, whether they had been paid by the plaintiff, or he had given promissory notes for them, or not. In Ham v. Hill, supra, under a similar state of facts, where

came due under the mortgage, and defendants failed to pay, plaintiff's right of action was then ripe, and the measure of his relief was the full amount of the indebtedness assumed, whether he had paid it or not. But the mortgage has since been foreclosed, and the demand has been wholly satisfied out of the proceeds of the lots retained by plaintiff and those conveyed to the defendant Powell as trustee, so that plaintiff has been entirely relieved of the liability assumed by him under his contract with Shaw; but the proceeding and process which the defendants suffered to be enforced, whereby that result was brought about, absorbed the lots retained by him, which, if defendants had observed the conditions of their undertaking, would have inured to him unincumbered with such indebtedness. Now, notwithstanding the foreclosure proceedings, and the consequent discharge and exoneration of plaintiff from his liability, he contends that he is still entitled to recover from the defendants the full amount of the indebtedness assumed by them, and that such indebtedness is the measure of his relief in the present action. Under the rule invoked in support of this contention, it must be and is admitted by the instruction asked for that, if defendants paid anything upon the demand, they ought to have credit for it, and that the measure of relief would be the amount of the balance remaining unpaid; and it must also be admitted that the defendants' property contributed to the payment of the demand, so that the rule, if applied, would constitute the balance unpaid, after the application of defendants' property to the demand, as the measure of damages. But we do not think it at all applicable under the circumstances and conditions surrounding this case. The simple fact is, plaintiff's liability has been discharged, and he has lost his lots in the transaction. If he is not chargeable with any duty which, if discharged, would have prevented the loss of the lots, he should recover their value; otherwise he would probably be without remedy. There is a rule which requires a party entitled to the benefit of a contract to protect himself from loss arising from a breach, if it can be done at trifling expense, or with reasonable exertion, and restricts him to such damages only as with reasonable endeavors and expense he could not prevent. Miller v. Mariner's Church, 7 Me. 51.

It has been held, however, that the rule is not applicable to a contract of the nature we are considering, where there was, in effect, an absolute promise to pay, and not one of indemnity merely. Wicker v. Hoppock, 6 Wall. 94. Plaintiff, of course, was aware of the foreclosure sale, and he could, if he had seen fit, perhaps have secured the sale of defendants' lots first; and, if they did not sell for enough to satisfy the mortgage, he could have paid the balance, and this balance, under the rule above discussed, would have been the measure of his damages. The

defendants, however, became the principal debtors as between them and the plaintiff when they assumed the payment of the $5,712 upon the mortgage, and the plaintiff remained simply as surety for them. The lots conveyed to the defendants were primarily liable for the payment of the amount assumed and the lots retained by plaintiff for a deficiency only. Under these circumstances it was not incumbent upon the plaintiff, nor was it a duty enjoined upon him, to raise money sufficient to discharge the obligation as between him and the defendants, nor was he under any obligations to take any steps in the foreclosure proceedings. It was by the default of the defendants that he was deprived of his property, and the value thereof is the rightful measure of his demand against them. Wilcox v. Campbell, 106 N. Y. 325, 12 N. E. 823. That case comes near the case at bar, and is well reasoned. Any other rule of damages under a like state of facts would not be at all times adequate to the injury. It follows that there was no error in the court below, and the judgment is affirmed.

(30 Or. 348)

WEAVER v. SOUTHERN OREGON CO. (Supreme Court of Oregon. March 16, 1897.) OBJECTIONS TO PLEADING-WAIVER-SERVICE OF PROCESS AMENDMENT OF RETURN.

1. Where no objection is made in the court below to the complaint, its sufficiency cannot be questioned on appeal from a judgment given for want of answer.

2. Service of summons on a corporation, by delivering a copy to its secretary at its principal office or place of business in the county where action is brought, is sufficient, though the return does not show that he resided or had an office in the county.

3. It was not error to permit a sheriff to amend his return of service to conform to the facts.

Appeal from circuit court, Coos county; J. C. Fullerton, Judge.

Action by John Weaver against the Southern Oregon Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Hamilton and John A. Gray, for appellant. A. J. Sherwood, for respondent.

BEAN, J. On the 23d of September, 1895, the plaintiff commenced this action against the defendant corporation, in the county where its principal office or place of business is located, to recover money, and caused a summons to be regularly issued and served upon its secretary at such office or place of business, but, in his return, the sheriff omitted to state the place of service. The defendant failed to appear and answer the complaint, as required by the summons; and, on the second day of the next succeeding term of court, the sheriff applied for and obtained leave to amend his return to conform to the facts, and thereupon amended his certificate of service so as to read as follows: "I hereby certify that I served the

within summons within the said state and county on the 23d day of September, 1895, on the within-named defendant, the Southern Oregon Company, by delivering a copy thereof, prepared and certified to by me as sheriff, together with a copy of the complaint, prepared and certified to by D. F. Dean, county clerk and ex officio clerk of the said circuit court, to R. E. Shine, the secretary of the Southern Oregon Company, de fendant. The said copies of said summons and complaint were delivered to the said secretary of said defendant at the principal office and place of business of defendant, at the town of Empire City, Coos county, Oregon." On the next day, the default of defendant was duly entered, and judgment for want of an answer rendered against it for the amount prayed for in the complaint, from which this appeal is taken.

The contention for the defendant is (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that the return as amended by the sheriff is insufficient to give the court jurisdiction of the defendant, because it does not show that the officer upon whom service was made either resided in or had an office in Coos county; and (3) that the court erred in permitting the sheriff to amend his return. Neither of these positions is sound.

1. No objection was made to the complaint in the court below, and its sufficiency cannot be raised in this court by an appeal from a judgment given for want of an answer. Askren v. Squire, 29 Or. 228, 45 Pac. 779.

2. The service of the summons upon the secretary of defendant, at its principal office or place of business in the county where the action was commenced, was a valid service upon the corporation, although it does not affirmatively appear from the return of service that such officer resided in or had an office in the county. Where jurisdiction of a private corporation is sought to be obtained by service upon some inferior clerk or agent, it is necessary for the return to show the facts which authorize such substituted service. Caro v. Railroad Co., 10 Or. 510. But when the service is made upon one of the principal officers enumerated in the statute, at the principal office or place of business of the corporation, the court thereby acquires jurisdiction of the person, without any showing that the officer upon whom the process was served resided in or had an office at such place.

3. There was no error in permitting the sheriff to amend his return. The allowance of such amendments is a matter within the sound discretion of the trial court, and its action will not be reviewed here, except for an abuse of such discretion. It is a power which ought always to be liberally exercised, in furtherance of justice. 22 Am. & Eng. Enc. Law, 200; Malone v. Samuel, 13 Am. Dec. 172, and note.

Affirmed.

(30 Or. 364)

LIEBE V. NICOLAI et al.1 (Supreme Court of Oregon. March 16, 1897.) APPEAL-FINDINGS OF FACT-LANDLORD AND TENANT-FIXTURES-CONSTRUCTION OF LEASE-EFFECT OF SETTING ASIDE REPORT OF REFEREE. 1. A finding of fact by a trial court on an issue before it will not be disturbed on appeal where there is any evidence to support it.

2. Dynamos and other electrical machinery placed in a leased building for the purpose of furnishing power for an electric light system extending to other buildings are not "erections or additions" to the leased premises, within the terms of the lease requiring erections and additions thereon to be surrendered with the premises to the landlord on the termination of the lease.

3. A clause in a lease requiring the rent to be paid "in monthly payments," the first to be made on the first day of the term, does not require payment in advance for each succeeding month; and a forfeiture of the lease cannot be declared by the lessor for a failure to pay in advance for a subsequent month.

4. Where a trial court sets aside the report of a referee in an action at law, and makes new findings, under Hill's Ann. Laws Or. § 229, providing that in such case the court may make another reference, or "may find the facts and determine the law itself," its findings of fact. though based on the evidence reported by the referee, are entitled to every presumption in their favor that would arise if made on an original trial by the court, and will not be reviewed on appeal when supported by any evidence.

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Theodore H. Liebe against Louis Nicolai and Theodore Nicolai to reCover possession of personal property. Judgment for plaintiff, and defendants ap peal. Affirmed.

This is an action to recover the possession of certain barber shop furniture and elec tric light machinery, the plaintiff claiming the same by virtue of a chattel mortgage thereon, executed by one Eugene Stebinger while the defendants claim title and righ of possession of the furniture under a sale thereof upon execution, and the machinery by reason of its character as fixtures placed upon their premises by Stebinger, and not removed during the term of his lease there of.

The cause, being at issue, was referred to Wallace McCamant, Esq., who took and reported the evidence, and found there from that plaintiff had a right to the possession of the furniture, and defendants to the machinery. The court affirmed the referee's findings in relation to the furniture, but set them aside as to the machinery. and, having made findings of its own, to the effect that plaintiff was entitled to the latter class of property also, gave judgment for the return of all the property, or, if the same could not be had, for the value thereof, from which the defendants appeal.

H. B. Nicholas, for appellants. S. C. Spencer, for respondent.

MOORE, C. J. (after stating the facts). The record discloses that on April 6, 1894. 1 Rehearing denied.