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 the 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

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 tor 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 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, $637.50, 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.

The plaintiff assigns three grounds of error: First, in sustaining the objection to evidence. The case was tried upon the theory that the plaintiff had guarantied to the defendant an average corn crop, and not only that he should have an average crop, but that he should have a price equivalent to the usual market price of corn when there was a failure of crop. The plaintiff, for the purpose of reducing these unusual damages to the utmost, attempted to show by the evidence that the defendant had more corn from the crop, in fact, than he admitted having had. This evidence was excluded, and, upon the theory upon which the case was tried, it was error to exclude this evidence. This applies to the first and second assignments of error.

. The third assignment of error is that the court erred in its measure of damages under the contract "to stand one-half of the loss in case of failure of crop by reason by drought or hail." The court instructed the jury as follows: "The words are ambiguous in themselves, and cannot be interpreted without an explanation of their meaning. You should therefore construe them in accordance with the true intent of the parties at the time of making the contract. If the words mean

that plaintiff was to lose one-half the rent in case of a failure of crops by reason of hail or drought, and if it is proven by the greater weight of evidence that there was a failure of crops for such cause, then plaintiff should recover one-half the amount appearing due upon said note; but if the words, interpreted according to the intent of the parties, mean that plaintiff was to stand one-half the loss of a crop if occasioned by drought or hail, and it is proven by the greater weight of evidence that there was a failure for such reason, then you should allow defendant onehalf the difference in value between what was raised on the farm and a fair average crop, not exceeding the sum of $300. Ascertain the difference between such sum and the amount appearing to be due upon the note, and render your verdict in favor of the person in whose favor you find the balance." The measure of damages adopted by the court in the trial of the case is without warrant of law. Such speculative damages are never allowed. If it was intended that this promise or covenant should apply to a loss occasioned by a failure of the crops, then the loss would be the rent, and expenditures of labor, money, and property by the defendant in his efforts to raise crops. event, it could not be one-half of an average crop of corn or oats, measured by the price of such commodity in a season when there was a failure. It cannot be said that the plaintiff was an insurer that the defendant would raise a crop. The measure of damages adopted by the court is so uncertain, depends upon so many contingencies, is so remote and conjectural, that, under the rules of law in relation to damages for breach of

In any

contract, it cannot be allowed as a measure of damages.

The showing for a new trial upon the ground of newly-discovered evidence was ample, and the court should have allowed the same. The principal issue of fact involved in the case, to which evidence was directed, was as to whether, by the promise of the plaintiff to stand one-half of the loss, he meant it to apply exclusively to rent, as contended for by the plaintiff, or whether he meant it to apply to such other damages as the defendant might be occasioned by his loss of crops by reason of drought or hail. The court assumed that this was an issue triable by the jury, and, in the absence of the written contract, we must assume that its action in this respect was correct. The only evidence before the court and jury as to what was really intended by this promise was the statements of the respective parties plaintiff and defendant. The newly-discovered evidence was statements made by the defendant to four different persons, at four different times, directly contrary to his contention on the trial, and to the effect as contended for by the plaintiff. These statements were made, according to the showing, soon after the contract of lease was entered into. That it was discovered after the former trial, there is no contention. It is, however, contended that the showing does not disclose that the plaintiff used such diligence as he might have used to learn that these witnesses were possessed of this knowledge. It is, however, clear, by the showing, that the plaintiff had no reason to suppose that either of those witnesses possessed the knowledge disclosed by the showing made. The evidence is material to this issue, and goes to the merits of the controversy. It is not cumulative. It is reasonable to say that it ought to produce, at another trial, an opposite result. The judgment of the court is reversed and the case remanded, with directions to the lower court to award a new trial. All the judges concurring.

(5 Kan. App. 379)

SMITH, Sheriff, et al. v. WILSON. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) PRELIMINARY EXAMINATION OF WITNESS-FRAUDULENT CONVEYANCE-EVIDENCE-SPECIAL FINDINGS.

1. The principal questions and answers complained of are preliminary, and could not have prejudiced the rights of the plaintiffs in error. Error in admitting preliminary questions to be propounded to witnesses is not necessarily reversible.

2. The declarations made by the vendor several months after he had sold and parted with the possession of the property are not admissible in evidence for the purpose of impeaching the title given by the vendor.

3. Where a great many special findings of fact are submitted by the court to a jury, the court may withdraw from the consideration of the jury some of such special findings after they have been submitted, where the same findings

are embodied in such special findings as have already been found by the jury.

(Syllabus by the Court.)

Error from district court, Dickinson county; James Humphrey, Judge.

Action by Lydia A. Wilson against James S. Smith, sheriff, and others. Verdict for plaintiff, and from an order denying a new trial defendants bring error. Affirmed.

Stambaugh & Hurd, for plaintiffs in error. J. H. Mahan and O. F. Mead, for defendant in error.

MCELROY, J. This was an action in replevin brought by Lydia A. Wilson, as plaintiff, against James S. Smith, sheriff, John Johntz, A. W. Rice, D. R. Gordon, T. H. Malott, and W. B. Giles, co-partners as Malott & Co., defendants, for the recovery of certain personal property, consisting of steers, cattle, hogs, horses, and farm implements, and for damages sustained by the plaintiff by reason of defendants' wrongful taking and detention thereof. The property in controversy had been seized by the sheriff upon an execution issued in a case in which said Malott & Co. were plaintiffs, and Thomas J. Wilson, the husband of Lydia A. Wilson, was defendant. Said property was taken as the property of Thomas J. Wilson. The said Lydia A. Wilson claimed to be the owner and entitled to the immediate possession of such property, and commenced this action for possession thereof and for damages for the detention. The answer of the defendants was a general denial. The case was tried upon the petition and answer. The trial was had by the court and jury. The jury returned a general verdict in favor of the plaintiff, and against the defendants, for the possession of the property, and assessed her damages at $103.36. Eighteen special findings were submitted at the request of the defend ants. Motion for new trial denied. Plaintiffs in error bring the case here for review.

It appears from the record in this case that Lydia A. Wilson was married to Thomas J. Wilson, in Ohio, about 1870; that prior to her marriage her father gave her $500, and at his death left her an interest in a tract of land, which was afterwards sold for $1,500. After her marriage with Thomas J. Wilson, she loaned her husband these sums of money, and took two notes for the same, one for $500, and one for $1,500, bearing interest at 8 per cent., due and payable on demand. Afterwards the Wilsons removed from Ohio to the state of Kansas. The husband carried on the business of farming and stock raising, and in 1888 he was financially involved, and in August of that year Lydia A. Wilson demanded and procured a settlement of her claims. Her demands, with interest, amounted at that time to something over $4,000; and, in payment thereof, the husband conveyed to her some real estate, and sold to her some personal property, including 100 head of steers. The plaintiffs in error contend that the property in controversy is the same property, or the proceeds of the

same, which Lydia A. Wilson procured from her husband, and that the sale made to her by her husband at that time was for the purpose of hindering, delaying, and defrauding the creditors of said Wilson, and that said property is therefore subject to said execution, as the property of said husband.

Complaint is made that the trial court erred in admitting the evidence of Thomas J. Wilson, husband of the plaintiff below, as to matters other than those with respect to which he claimed to be acting as her agent. The principal questions and answers complained of are preliminary questions, and could not have prejudiced the rights of plaintiffs in error. We believe, upon the whole examination of this witness, that the court committed no error in regard to the admission of his testimony.

Again, complaint is made that the trial court erred in refusing to admit evidence offered by the defendants below to prove admissions of Thomas J. Wilson with respect to his intentions and purposes in transferring his property to the plaintiff, his wife. This was in regard to the transfer or sale of property to his wife in August, 1888, and is founded upon the ruling of the trial court in rejecting the evidence of Samuel G. Reed as to a conversation had with Thomas J. Wilson at Kansas City, in the winter of 1888. During the examination of said witness, defendants below asked: "Now, I will ask you if you had a conversation there at Kansas City, with Wilson, about these Gilliland notes and his indebtedness upon them, and with respect to transfer of his property to his wife." To this question the plaintiff objected, and the objection was sustained. This forms the basis of the complaint in regard to the rejection of evidence by the trial court. The record shows that these steers were sold and delivered by Thomas J. Wilson to his wife, Lydia A. Wilson, in August, 1888, and that shortly after that time she sold and delivered the same to Reed & Baxter; that Reed & Baxter fed the same for several months, and shipped to Kansas City. Thomas J. Wilson was in Kansas City at the time these steers were sold by Reed & Baxter, during the winter of 1888. These statements that Wilson made tending to impeach the title of Mrs. Wilson were made months after he had parted with the title and possession of the property, and the court properly sustained the objection.

Our attention is called to the case of Kurtz v. Miller, 26 Kan. 317. We do not believe that this case is applicable to the case under consideration. In that case the court says: "A further matter for consideration is this: The court, over the objection of the plaintiff, admitted in evidence several letters written by her father. These letters were written about the same time of the sale, and were not directly in reference to it, but written to his various creditors, with explanations of his nonpayment and statement of his plans for the future. They were admitted, as ruled by the court, for the single purpose of showing the intent with