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charter may be levied for that purpose. The limitation upon the taxing power contained in the act imposing and authorizing the creation of such indebtedness plainly repels the inference that the legislature intended to authorize the levy of an additional or special tax with which to pay it. It is often said that authority to a municipal corporation to create a debt implies power to raise the means with which to pay it by taxation, but this is true in a general sense only. Of course, every lawful debt of a municipality is a liability against it, and payable from its general funds, unless otherwise provided; and as the usual, and indeed, generally, the only, means a city has of raising money is by taxation, it necessarily follows that its indebtedness must be paid from the revenue thus derived. But it is not believed that mere authority to create a debt authorizes, per se, the levy of a special tax for its payment. It is quite true, as we have remarked, that the right of a municipality to incur an obligation generally implies the right to pay it by taxation, but such right must always be exercised in accordance with the provisions of the law conferring the power of taxation, and in subordination to the limitations imposed by the legislature on the exercise of such power. If, therefore, the power of a municipality to levy taxes is expressly limited to a certain amount, an authority to contract debts or incur other obligations will not alone justify an inference that the power to levy an additional tax to pay such debts or obligations was also conferred. Shackelton v. Town of Guttenberg, 39 N. J. Law, 660. It follows that the special 2-mill tax levied by the defendant municipality for the purpose of paying the interest on its bonded and other indebtedness is unauthorized and vold. The decree of the court below is therefore reversed, and a decree will be entered here enjoining the collection thereof.

(30 Or. 593)

JACOBS v. OREN. (Supreme Court of Oregon. April 12, 1897.) APPEAL FROM JUSTICE'S COURT - RECORD - CORRECTION-FILING TRANSCRIPT-NEW TRIAL

-TENDER BY DEFENDANT-Costs.

1. The jurisdiction of the circuit court on ap peal from a justice cannot be defeated by afhdavit that the justice, in contravention of Hill's Ann. Laws, § 2055, subd. 10, failed to enter in his docket a matter material to the issue; the proper remedy being a nunc pro tunc order from the justice, correcting the record.

2. The transcript on appeal from a justice may be filed in circuit court immediately after the appeal is allowed.

3. Where defendant admitted that he owed a part of the sum demanded, a verdict in his favor was properly set aside by the trial court.

4. Where defendant alleged a tender and deposit in court of that part of the amount admitted to be due, a verdict in favor of plaintiff for that sum does not of itself show that the allegations of tender and deposit were found to be true, so as to entitle defendant to recover his costs (Hill's Ann. Laws, § 561), without a special finding to that effect.

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

Action by A. Jacobs against Levi Oren, iu justice's court. On appeal to the circuit court, plaintiff recovered judgment for a part of the amount claimed, together with his costs and disbursements, and defendant appeals. Affirmed.

This action was commenced in a justice's court of Benton county, to recover the sum of $15, alleged to be due on account of the rent of certain premises leased by the plaintiff to the defendant. The answer denies any indebtedness on said account greater than the sum of $2.50, which amount it is alleged was tendered plaintiff before the commencement of the action. A reply having put in issue the allegations of new matter contained in the answer, a trial was had, resulting in a verdict and judgment in favor of the defendant, from which the plaintiff appealed. In the circuit court the defendant moved to dismiss the appeal, assigning as a reason therefor, inter alia, that the transcript failed to show that he tendered in open court the amount admitted to be due plaintiff; but, this motion being overruled, sum of $2.50 non obstante veredicto, and for the defendant, whereupon counsel for plaintiff moved the court for a judgment for the sum of $2.50 non obstante verdicto, and for the costs and disbursements of the action. The court overruled this motion, but set the verdict aside, and granted a new trial. Thereafter the defendant was permitted to amend his answer by inserting, after the allegation of tender, the words "and now brings the same into court"; and, this matter being put in issue by the reply, another trial was had, resulting in a verdict for plaintiff in the sum of $2.50; whereupon de fendant's counsel, based upon their client's affidavit, which showed that he had deposited with the justice who tried the action the sum of $2.50, moved the court for a judgment for his costs and disbursements, which motion being overruled, a judgment was given on the verdict, and in favor of the plaintiff, for $2.50, and the costs and disbursements, from which the defendant appeals.

W. S. Hufford, for appellant. J. Fred Yates and A. L. McFadden, for respondent.

MOORE, C. J. (after stating the facts). It is contended by counsel for the defendant that the transcript from the justice's court is fatally defective, in that it fails to recite that the defendant, upon filing his answer, deposited in that court the amount of money tendered the plaintiff, and that, such being the case, the court erred in its refusal to dismiss the appeal. It was incumbent upon the plaintiff to file with the clerk of the circuit court a transcript containing a copy of the material entries in the justice's docket relating to the cause on appeal (Hill's Ann. Laws Or. § 2125); and it must be pre

sumed that this duty was fully performed, as the justice's certificate to the transcript states, in effect, that it contains a copy of every docket entry made by him in the action. If he had omitted any entry made in his docket which the trial court might have considered material to the cause on appeal, the defendant, by suggesting a diminution of the record, could have obtained a rule on the justice requiring him to complete the transcript by adding a copy of such entry thereto. 2 Enc. Pl. & Prac. 305; Elliott, App. Proc. § 217. The defendant does not claim, however, that any docket entry was omitted from the transcript, but that the justice, neglecting to comply with the requirement of subdivision 13, § 2055, Hill's Ann. Laws Or., to the effect that he shall enter in his docket all matters which may be material, failed to make an entry therein showing the alleged deposit in his court. If the affidavit relied upon to show such neglect be sufficient to defeat the apparent jurisdiction of the circuit court, it must be admitted that the perfecting of an appeal from a justice's court would be a difficult matter, and jurisdiction would be made to depend upon the showing made by the affidavits of the respective parties that the justice either did or did not enter in his docket all matters material to the issue. The method of obtaining jurisdiction on appeal has been prescribed by statute, and, when complied with, the fact is ascertainable from an inspection of the record in the appellate court, and hence jurisdiction cannot be conferred or defeated by the affidavits of the parties. If the defendant was injured by the failure of the justice to make the proper entries in his docket, he had a remedy by applying to that court to correct and amend the record made therein. Elliott, App. Proc. § 206. A nunc pro tunc order, upon proper notice to the adverse party, could have been obtained and entered, thereby correcting the record; and the right to make this correction could not be denied because the action had been transferred to the circuit court, since the justice would be merely putting upon record the evidence of an order which had theretofore been duly made, and, when certified by him to the circuit court, the transcript would then be complete. It is also claimed that the transcript is defective, because it fails to show that the sureties in the undertaking on appeal justified, and that the justice failed to make an entry in his docket to the effect that the proceedings were thereby stayed. The justice is required to enter in his docket a memorandum of the undertaking and the justification of the sureties therein (subdivision 10, § 2055, Hill's Ann. Laws Or.); but, since the sureties in such an undertaking are not obliged to justify unless so required by the adverse party (Id. § 2123), it is evident that, in the absence of such a request, there need be no justification nor entry concerning it. The justice is

also required to state whether or not the proceedings are stayed by the appeal. Id. § 2122. This the transcript fails to show, but we think the requirement is directory only, and intended merely to furnish a foundation for the recall of an execution which may have been issued; but, however this may be, any failure of the justice in this respect could have been corrected in the manner hereinbefore indicated, and ought not to defeat an appeal taken in the manner prescribed by law.

It is claimed that the justice made out and delivered the transcript to the plaintiff on the day the appeal was allowed, thereby depriving the defendant of his right to except to the sureties in the undertaking, and that, this being so, the appeal was prematurely taken, in which case the circuit court failed to acquire jurisdiction. This question has already been decided adversely to defendant's contention, this court holding in a late case that the transcript might be filed with the clerk of the circuit court immediately after the appeal has been allowed by the justice. Hughes v. Clemens, 28 Or. 440, 42 Pac. 617.

It is next contended that the court erred in setting aside, on its own motion, the verdict rendered at the first trial. It will be remembered that the answer admitted that there was due and had been tendered the plaintiff the sum of $2.50, but it did not show that the tender had been kept good by alleging a deposit in court, as was requir ed by the statute. Hill's Ann. Laws Or. § 561; Holladay v. Holladay, 13 Or. 523, 11 Pac. 260, and 12 Pac. 821. "The tender," says Woods, J., in Stowell v. Read, 41 Am. Dec. 714, "does not discharge the debt, for an action lies as well after the tender as before to enforce the payment of it; and the creditor cannot maintain trover for the money that has been tendered and not accepted. On the contrary, the debtor may, from the moment it is refused, appropriate it to his own use. Indeed, the only effect of a tender is to enable a debtor who has made it, and keeps it ready for the creditor, to escape the payment of the costs of any action that may be commenced to recover the debt, by showing that he has done, and is ready to do, all that is in his power to perform his contract, and that, although the debt is not paid, it is no fault of his." Upon the admission in the answer, it was incumbent upon the court to instruct the jury that they should find for the plaintiff in the amount so conceded to be due,-and it must be presumed, in the absence of any showing to the contrary, that this duty was fully performed (Hill's Ann. Laws Or. § 776, subd. 15),— notwithstanding which they found for the defendant, clearly contrary to such instruction, in view of which the court very properly set aside the verdict, and granted a new trial. 16 Am. & Eng. Enc. Law, 552; Friendly v. Lee, 20 Or. 202, 25 Pac. 396.

It is also insisted that the record discloses that the defendant, after having tendered the amount acknowledged by him to be due, deposited the same with the justice, and, the verdict being for the amount so deposited, he was entitled to a judgment for his costs and disbursements. A defendant desiring to avoid the payment of costs must allege that, before the commencement of the action, he tendered to the plaintiff an amount iu satisfaction thereof, and now brings the same into court, and deposits it for plaintiff. Hill's Ann. Laws Or. § 561. The defendant did not allege in the justice's court that he made this deposit, nor in the circuit court until the second trial of thè action; but assuming, without deciding, that he had a right to so amend his answer in the latter court, what is there in the record to show that such allegation of tender was found to be true? It must be admitted that the verdict was for the amount claimed to have been deposited, but the jury may have reached the conclusion that that amount was due the plaintiff from the admission in the answer and not from any proof of a tender or deposit in court. The defendant could have obtained a special finding by the jury upon this question, and thus show his right to exemption from the payment of costs (Hill's Ann. Laws Or. § 561); but, having failed to do so, there is nothing in the record to show that the allegations of tender were found to be true. There being no error in the record, the judgment is affirmed.

(31 Or. 328)

HAMILTON v. GAMBELL, Auditor. (Supreme Court of Oregon. April 12, 1897.) MUNICIPAL CORPORATIONS-IMPROVEMENTS-ORDINANCES-ULTRA VIRES-REASONABLENESS.

1. Portland City Charter, § 118, providing for the taking of bonds for the faithful performance of a contract for improvements, and also to secure material men and others their claims under such contract, is not violated by Ordinance No. 9183, which provides that in such case a material man may file his claim with the city auditor within five days after the work is completed, and directs that the auditor shall withhold the amount due the contractor till the claim is adjusted, as to amount between the contractor and the claimant, and that on the failure of the contractor and the claimant to agree, and on the claimant's commencing within 20 days an action to recover the claim, and causing a writ of attachment to be issued and notice thereof to be served on the auditor, the auditor shall withhold a warrant from the contractor till a final determination of the rights of the parties.

2. The ordinance does not make the city the subject of garnishment.

3. Nor is such ordinance unreasonable.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by A. Hamilton against A. N. Gambell, auditor. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action for the recovery of three certain city warrants drawn upon the treas48 P.-28

urer of the city of Portland, and signed by its mayor and auditor, of the aggregate value of $862.50. The defendant, who is the auditor of the city, interposed two defenses. First, that he withholds and detains the warrants in pursuance of certain provisions of Ordinance No. 9183, which are, in effect: Section 1. Where any work is done under contract with the city for street or sewer improvements, and has been accepted by the common council, the auditor is required to withhold the issuance of warrants in payment therefor for a period of five days, after which he shall issue and deliver the same: provided, no person who has furnished material or labor, actually used, shall have previously filed in his office an unadjusted claim therefor.

Sec. 2. Any person, firm, or subcontractor furnishing materials or labor, actually used or employed in such improvements, at the request of the contractor, may at any time before warrants are delivered as provided for in section 1 file his or their claim therefor in writing with the auditor, stating the amount thereof, which shall be withheld from the amount due such contractor until such claim is adjusted and agreed upon as provided in the following section.

Sec. 3. If the amount of the claims is agreed upon and adjusted by the claimant and contractor, the auditor shall deliver warrants in accordance with the adjustment; otherwise he shall retain them for a period not to exceed 20 days from the date of the acceptance of the work, when he shall deliver the same to the contractor, unless the claimant shall, previous to the expiration of said 20 days, commence an action upon the claim, and cause a writ of attachment to be issued and notice thereof in writing to be served upon the auditor, in which case he shall withhold the warrants until the rights of the respective parties are finally determined.

Sec. 5. All contracts for such improvements shall provide that the same shall be subject to the provisions of the ordinance.

It appears that the Andrew Lumber Company had a claim of $862.50 against the plaintiff, alleged to be for lumber furnished and used in city improvements, which claim it filed with the auditor, and sued upon as contemplated by the ordinance, and had notice in writing of the commencement of the action and issuance of the writ of attachment served upon the auditor. And second, by way of estoppel, that in pursuance of advertisements for bids for the improvements, with notice that the contract therefor was to be let subject to the provisions of the foregoing ordinance, plaintiff bid for the work, and thereafter, on April 7, 1896, entered into a contract with the city whereby it was provided, among other things, that the contract was made and entered into subject to the provisions of Ordinance No. 9183, which was expressly made a part of the

same, and at the same time entered into bond with the city for the faithful performance of the specifications of said contract subject to the provisions of said ordinance. A demurrer was interposed to the affirmative matter of the answer, which was sustained; and, efendant refusing to plead further, judgment was entered against him, from which he appeals.

W. M. Cake, City Atty., for appellant. J. H. Hall, for respondent.

"The council shall provide by ordi* subject only to the following restrictions." Is not here an implied latitude for legislation extending beyond the enumerated restrictions? It would seem from the reading that the power was otherwise limitless for the accomplishment of the specified purposes. This is not a case where the mode of contracting is specially and plainly prescribed and limited, but where a designated mode is appointed, which constitutes the only restriction, and it cannot, therefore, become the measure of the pow er. That the section in question, when considered as a whole, confers the power upon the city to enter into contracts with individuals for making the specified improvements, will hardly be questioned. But, be this as it may, there is always an implied or incidental authority to contract obligations necessary to the execution of special powers and functions with which the city is endowed by its charter. 1 Dill. Mun. Corp. (4th Ed.) §§ 443, 447. So, also, the power to contract, unless limited or restricted to certain conditions or a particular mode or method, necessarily carries with it the power to impose any reasonable regulations not contrary to law or public policy which may seem most conducive to the successful accomplishment of the purposes in hand.

It is said that municipalities, as well as individuals, have moral purposes to subserve in their dealings, and, while they may not be legally compellable to recognize such purposes, yet it is entirely proper for them to do so, and they are not to be excused for a dereliction of duty in this regard. Accordingly, it has been held that it was competent for a municipality to enter into stipulations with a contractor for the construction of a public building, making his payment conditional upon his performing the obligations which he may assume towards his subcontractors and those furnishing labor and materials in the course of the fulfillment of the contract. Knapp v. Swaney, 56 Mich. 345, 23 N. W. 162. The language of Judge Cooley is so pertinent here we may be pardoned if we quote somewhat at length. He says: "A corporation, when constructing a public building or other public work, is chargeable with moral duty, as an individual would be, to see that it is so constructed that people may not be injured in coming near to or making use of it in a proper manner. In some cases they may not be legally responsible for failure to perform this duty; but, where the moral obligation exists, it cannot be said that any provision for its performance, not improper in itself, is ultra vires. A county may go to great pains and great expense to make its courthouse unquestionably safe, that individual citizens may not suffer injuries consequent upon its construction. But, if it may do this, it would be very strange if it were found lacking in authority to stipulate in the

WOLVERTON, J. (after stating the facts). In support of the demurrer, it is urged that the city council was without power or authority, under the charter of the city of Portland, to enact Ordinance No. 9183, and that it is therefore ultra vires and void. Section 118 of the charter is cited as containing the only provisions to be found which in any way lend support or authority for the enactment, and it is claimed that as it points out and prescribes a certain measure that the council shall adopt for the protection and security of laborers, material men, and subcontractors in their just claims for labor and materials furnished contractors with the city while making improvements, the particular measure is exclusive of all others, intended for the security and protection of the class of individuals designated. It is as follows: "The council must provide by ordinance for the time and manner of doing the work on any proposed improvement subject only to the following restrictions, viz." After directing what notice shall be given, and prescribing the manner of letting the contract, it continues: "The council shall provide for taking security by good and sufficient bonds for the faithful performance of any contract let under its authority, and to secure laborers and material men and subcontractors their just claims under said contracts, and also the faithful maintenance and guarantee of such work for five years or such other time as the council may prescribe, and the provision thereof shall be enforced by an action in the name of the city of Portland." Preliminarily, we may say that the word "provision," in the latter clause, was evidently intended to read "provisions," so as to cover all of the enumerated stipulations, as the context does not seem suited to any other interpretation. But as to the powers of the council: The section does not purport to be restrictive of any other or different measures that the council may see fit, in its wisdom, to adopt for the accomplishment of the purposes contemplated by the charter. Indeed, it is but a fair and just implication and interpretation from the language employed that the only restriction imposed upon the power of legislation touching the subject is that the particular kind or method of security pointed out shall not be overlooked, or, rather, that it shall in any case be adopted in providing for the improvements desig

nated. nance

*

*

contract for the building that the contractors, when calling for payment, shall show that they are performing their obligations to those who supply the labor and materials, and that the county is not obtaining the building at the expense of a few of its people." As approving the doctrine, see, also, Sample v. Hale, 34 Neb. 220, 51 N. W. 837. So we may infer that it was competent for the municipality in the present case to provide by ordinance for the further protection and security of subcontractors, laborers, and material men in their just claims against original contractors with the city for labor and materials furnished him, and of which the city obtains and may enjoy the benefit, by enacting that the contractor shall settle with such claimants before he will be entitled to his stipulated compensation; and the conditions touching the time during which the amount due the contractor shall be withheld are certainly reasonable. But it is insisted that the ordinance contravenes the recognized policy of the state, which exempts municipalities and their officers from attachment and garnishment. We do not think that the ordinance was intended to make the city the subject of garnishment. It merely prescribes the conditions under which the contractor shall become entitled to the warrants which constitute his compensation for stipulated services, and in the meantime the auditor is directed to withhold them. It was surely competent for the city to impose a condition that the contractor's compensation should not fall due for five days after the completion of the work; and, if for that length of time, why not for 20 days? And, in view of its moral obligation to see that persons who have furnished labor and materials for the use of the municipality shall not go away empty handed, it does not seem unreasonable to require of the contractor that he settle with those furnishing such labor and material at his request before he shall be entitled to his wages, and impose conditions accordingly. Such is the purpose of the ordinance, and the direction to withhold the warrants after action begun and writ of attachment issued, and notice thereof served upon the auditor, is but a means of conserving the purpose. The required stipulations are but conditions of the time and manner of payment, of which every person who contracts with the city must take notice, and to which he must voluntarily subscribe if he would make the improvements. We think the city council was invested with ample power and authority to enact the ordinance in question, and that the conditions complained of are not ultra vires or without validity, as it pertains either to the ordinance or the contract made in pursuance thereof, and, therefore, that the defense interposed was sufficient in law, if sustained by the facts, to defeat the action. The cause will be remanded, with directions to overrule the demurrer.

(5 Kan. App. 358) HOTCHKISS v. PATTERSON. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) CONTRACTS-BREACH

DAMAGES

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PROFITS-NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

1. Prospective profits, when they are fairly within the contemplation of the parties, not too remote and conjectural, and susceptible of being ascertained with reasonable certainty, may constitute a proper measure of damages. But held, in this case, that in a contract of lease, and promise of the lessor, "in case of loss of crops by hail or drought, to stand one-half of the loss," one-half of the value of what is estimated to be an average crop, at the market price of such average crop in a year when crops are a failure, is too remote and conjectural, and is not susceptible of being ascertained with such reasonable certainty as to constitute a proper measure of damages.

2. A motion for a new trial on the ground of newly-discovered evidence should be allowed where the showing discloses that the evidence was in fact discovered after the former trial, that due diligence was used to procure the evidence, that the evidence is material to the issue, goes to the merits of the case, is not cumulative, and ought to produce on another trial an opposite result, upon the merits.

(Syllabus by the Court.)

Error from district court, Jewell county; Cyrus Heren, Judge.

Action by J. N. Hotchkiss against Jason Patterson. From a judgment for defendant, plaintiff brings error. Reversed.

E. P. Hotchkiss and Clark A. Smith, for plaintiff in error. T. S. Kirkpatrick and Ira F. Hodson, for defendant in error.

MAHAN, P. J. Hotchkiss began an action on the 1st of March, 1892, against the defendant, before a justice of the peace of Jewell county, upon a promissory note, to recover the sum of $192.50 and interest. The defendant admitted the execution of the note, and alleged that it was given in part payment for rent of land rented from the plaintiff by the defendant under a written contract of lease bearing the same date as the note, in which written lease the plaintiff in error had agreed as follows: That in case of failure of crops, either by hail or drought, the plaintiff would stand one-half of the loss, --and alleged that by the failure of crops the defendant in error had lost $1,275, and that the plaintiff was indebted to him in onehalf of that sum, to wit, $137.50, of which amount he asked that $300 be set off against that note, and that he have withheld, for another cause of action, the remainder thereof. The trial was had before the justice, and judgment was rendered for a part of the amount claimed, $74.71, and costs, in favor of the plaintiff. There was an appeal to the district court, where the case was again tried, which resulted in a judgment for the defendant and against the plaintiff for the sum of $76.75 and costs. It is to reverse this judgment that the plaintiff brings this action.

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