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or intended to be included in the original ac- posed improvement in the pleading went to count or statement, shall be added by such the merits of the case, and for this reason amendment." The omission of the words “or was a matter of substance. lefeuse, counterclaim or set-off," after the 2. It is argued with much force in the preword “action," in the sentence quoted, leaves vailing opinion that a written pleading is but an inference, upon a casual examination, that, a statement of plaintiff's cause of action, or while the legislature intended to prohibit the of the defendant's ground of defense; and, plaintiff from introducing a new cause of ac- based upon this definition of the word, it is tion not embraced or intended to be included claimed that the legislature, by permitting in the original account or statement, it grant the "statement" to be amended on appeal, did ed permission to the defendant to interpose not intend that any distinction should be as many defenses, counterclaims, or set-offs made between written and oral pleadings, by amendment in the circuit court on appeal but that they should be alike subject to as he saw proper to avail himself of. But, amendment on appeal. It may be admitted when the entire statute is read in the light of that the conclusion reached might be deducithe limitations and qualifications therein con- ble from the reason adopted if the major tained, it will be perceived that the word premises used were universally true, but it is "statement" alludes to the oral declaration only partially so; for it is the complaint only made by the plaintiff or defendant of the that shall contain a plain and concise statefacts constituting bis cause of action or de- ment of the facts constituting the cause of fense, counterclaim, or set-off, the substance action (Hill's Ann. Laws Or. $ 66), while the of which is entered by the justice in his dock- answer shall contain a specific denial of each et, and that such statement may be amended allegation of the complaint, and may contain in matters of forin only, by filing formal a statement of new matter constituting a depleadings, when, by such amendment, sub- fense or counterclaim (Id. § 72). The statute stantial justice will be promoted. Now, since has here limited the word "statement" as apthe addition of a new defense, counterclaim, plied to pleadings, and practically defined it or set-off, not embraced or intended to be in- to mean an allirmative allegation of a matecluded in the original account or statement, rial probative fact constituting a cause of acwould amount to an amendment in matters tion or a defense or counterclaim; and hence of substance, the inference raised by the

it must be presumed that the legislative asomission of the words hereinbefore stated is sembly, in adopting the word, as applied to dispelled, and it becomes manifest that the the matter of presenting issuable facts, used defendant has no more right to insist upon it in this restricted sense. As a corollary, it an amendment stating any matter omitted would seem to follow that since the answer by him than has the plaintiff; and evidently contained a specitic denial only of the matethe legislature intended that the circuit court rial allegations of the complaint, and not an on appeal should confine itself to the trial of

affirmative allegation of a material faot conthe issues joined in the court below. But, stituting a defense or counterclaim, it was aside from this phase of the case, the court not a "statement," within the meaning of the in this instance was powerless to allow the act of 1893, and therefore not subject to proposed amendment, for the following rea- amendment on appeal. For these reasons, sons:

the judgment, in my opinion, should be af1. It will be observed that, upon the appeal firmed. being perfected, "the circuit court shall proceed to hear, try, and determine the cause anew, disregarding irregularities and imper

(31 Or. 41) fections in matters of form which may have

BAKER V. STATE INS. CO. occurred in the proceedings in the justice's

(Supreme Court of Oregon. May 1, 1897.) court." Now', since the cause is tried de novo on appeal, without regard to any action of


PROPERTY-PLEADING AND PROOF--OWSER: the justice's court, the proceedings referred

SHIP--TITLE-VALUE OF PROPERTY. to, in the language quoted, must necessarily

1. Where the complaint on a policy described mean the pleadings in the action; and, this

the property as “a frame dwelling house situbeing so, the trial court would have power ated on and confined to the premises now acto allow amendments correcting irregularities

tually owned and occupied by assured, to wit, and imperfections in matters of form; but

lots 27 and 28, block 8, in Harlington addition

to Mt. Tabor," and the proof showed the correct under the maxim, “Expressio unius est ex- description to be the same numbered lots and clusio alterius," it must necessarily be an

block in Harlem addition to East Portland, and implied prohibition against the allowance of

that there was no such place as “Harlington ad

dition to M:. Tabor," the variance is not fatal, any amendment in matters of substance. since, after eliminating the erroneous portion of The answer filed in the justice's court con- the description, enough remains to identify the tained a specific denial of the allegations of


2. There was no breach by insured of a warthe complaint, while the amendment, if al

ranty of sole and undisputed ownership and of lowed, would have introduced in the appel- title in her own name, where at the date of late court an allegation of new matter consti

the application she was in possession under a

contract for a deed, and had performed all the tuting an independent defonse; and, this be

conditions required by the contract up to that ing so, it will scarcely be denied that the pro- date.

3. A false statement as to the value of the venience in the designation and location of property will not invalidate the policy, if given

buildings and property for insurance purposes, in good faith as the honest opinion of insured.

which have no sort of reference to any public Appeal from circuit court, Multnomah coun

or legal surveys or plats, and descriptions by ty; E. D. Shattuck, Judge.

reference thereto are accounted sufficient. As Bill by M. E. Baker against the State Insur

it pertains to the location, and the question ance Company. Judgment for plaintiff, and whether the loss is within the policy, the evidefendant appeals. Affirmed.

dent intention of the parties, to be gathered W. T. Slater, for appellant. Geo. H. Wil- from the language used, in connection with liams, for respondent.

the nature of the property and the uses and

purposes to which it is devoted, will prevail. WOLVERTON, J. This is an action upon

1 Wood, Ins. § 47. And it has been held in a policy of insurance, to recover a fire loss of California that, if enough of the description is $400 on a dwelling and $200 on household fur- true to identify the property, other portions of niture. The defense interposed is: That it which are false may be disregarded, when plaintiff, by her written application, and as an the question is merely what property was ininducement for the issuance of the policy of

sured. Hatch v. Insurance Co., 67 Cal. 122, insurance, made answers to certain inquiries 7 Pac. 411; 2 May, Ins. $ 420a. Omitting touching the value of the building and land

and disregarding all reference to “Harlington upon which it is situate, and the ownership

addition to Mt. Tabor," or to any subdivision and title of the land, in substance as follows: thereof, we think there is enough left to identi"Question. What is the actual cash value of fy the property insured; and it was pertinent your land and the buildings thereon? An- to show that there was no such addition, but swer. One thousand dollars. Q. Are you the

that Harlem addition to East Portland was the sole and undisputed owner of said lands and

one to which reference should have been made. property to be insured ? A. Yes. Q. Is the There would be left the following description, title to the land on which said buildings are . viz.: "A frame dwelling house situated on and situated in your name? A. Yes.” That by confined to premises now actually owned and the terms of the application the plaintiff agreed occupied by the assured;" and this is suffithat each of said questions was correctly an

cient for the purposes of the insurance, and for swered, and that such valuations and state- a recovery in case of loss. There was a latent ments were true, and a warranty upon her

ambiguity, and the evidence offered was compart, and that the acceptance of the risk and petent to explain it. the issuance of the policy should be based It appeared from the testimony that plainsolely upon such application, but that she an- tiff was not the owner in fee of the land swered falsely, in disregard of such condi- upon which the dwelling was situated at the tions, whereby she has suffered a breach of the time the insurance was effected, but that warranty, and thus rendered the policy void. she held a contract with the owners of the The property insured is described in the policy legal title for a conveyance by good and sufas "situated on and confined to the premises

ficient deed, conditioned upon her completNow actually owned and occupied by the as- ing payment therefor in certain installments sured, to wit, lots 27 and 28, block 8, in Har- and at designated dates; and it is contendlington addition to Mt. Tabor, Multnomah ed that this discloses a state of affairs county, Oregon," and it is described in sub- inimical to plaintiff's warranty touching the stantially the same manner in the complaint; ownership and title. The warranty is, in but the evidence shows that the premises upon substance, that plaintiff is the sole and unwhich the dwelling was located are correctly disputed owner of the lands and property described as lots 27 and 28 in block 8, Harlem insured, and that the title to the land is in addition to East Portland, and it was further her name. It goes to the ownership aud shown, over the objection of defendant, that title to the land, and the question is, do the there was no such place as "Harlington addi. record and proof show the warranty to be tion to Mt. Tabor."

false? For, if they do, the plaintiff cannot Upon this state of the record, it is first con- recover. In Insurance Co. v. Staats, 102 Pa. tended that there is a complete and fatal vari- St. 529, a purchaser at sheriff's sale subseance between the pleadings and the proof, quent to the purchase, but prior to the detouching the description of the property cov- livery of the sheriff's deed, represented to ered by the policy of insurance, by reason the company that the land was "owned by whereof plaintiff is not entitled to recover. the applicant,” and it was held that there The objection goes to the identification of the was no such absence of title in the assured locus in quo of the dwelling, and it is not a as that the representation would affect the question whether the description is sufficient validity of the policy. In Insurance Co. v. to carry title, or to identify property conveyed Dougherty, Id. 568, the assured purchased or transferred. It is never necessary, in in- | from executors a lot of ground upon which suring property, that the locality be fixed or there was a building, paid the purchase established by such technical legal descrip- | money, received a receipt, and had gone into tions as are usually employed in conveyances possession, but prior to the execution of the of title; and it is not infrequently the case that deed she had the building insured. By her insurance companies employ maps, for con- application she represented that the title to

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the house and lot was in her name, and by equitable ownership fills the measure of the terms of the contract of insurance the common understanding quite as fully as leanswers and representations made in the ap- gal ownership. It was not expected that plication were taken as part of the contract plaintiff should answer technically touching and were warranted to be true; and the her ownership and title, and the construction court held that, as the equitable title to the of her warranty ought not to be circumproperty was vested, it was, for all the pur- scribed as if she had spoken in a technical poses of the suit, equivalent to a fee. In sense. These conclusions are especially apInsurance Co. v. Erb, 112 Pa. St. 149, 4 Atl. plicable in the present case, as it was shown 8, it was held that it was not essential that that when the plaintiff made the applicathe assured should have been invested with tion 'she produced her contract for the inthe legal title, if he was the sole, absolute, spection of the agent, who wrote out the and beneficial owner in equity; and this un- answers for her, and no doubt they were der a condition in the policy as follows: "If given with special reference to her title as the property to be insured be held in trust acquired by and through the contract. The or on commission, or be leasehold or other answer touching the value of the land and interest not amounting to absolute or sole building involved, somewhat, the expression ownership, * * it must be so represent- of an opinion; and unless it is tinctured with ed to the company, and expressed in the fraud, or so widely at variance with the policy in writing; otherwise the insurance, truth as that a fraudulent purpose must be as to such property, shall be void.” In In- presumed, it ought not to render the policy surance Co. v. Dyches, 56 Tex. 573, it was void. The honest judgment and opinion of held that where the entire equitable right in the party making such valuation are all that or to the land is in the assured, and he is in is required. Insurance Co. v. Pickel (Ind. a condition to enforce specific performance, Sup.) 21 N. E. 546. The question was subthere is no breach of the warranty. In mitted to the jury in this light, and properly Hough v. Insurance Co., 29 Conn. 10, the as- The question involved in the motion for sured represented by his application that nonsuit, if it can be urged at all under the the property insured was “his house," and pleadings; is necessarily disposed of by the the policy contained a condition that, “if the foregoing considerations. Judgment affirmed. interest in the property to be insured is not absolute, it must be so represented to the company, and expressed in the policy in

(31 Or. 9) writing; otherwise the insurance shall be

WASON V. PILZ et al.1 void.” The legal title was, however, in an

(Supreme Court of Oregon. May 1, 1897.) other person, with whom he had at the time

Deeps-CONSTRUCTION-EASEMENT. a parol contract for its purchase for an

A deed of "a parcel of land for the puragreed price, part of which he had paid, and

poses of a road” conveys only an easement. he had entered into possession; and it was held that his equitable title should be re

Appeal from circuit court, Multnomah coungarded as an absolute interest, and, there

ty; Loyal B. Stearns, Judge. fore, that the insurance was not void. To

Suit by Mary Isabella Wason against Rob. the same effect is Gaylord v. Insurance Co.,

ert Pilz and Annie C. Schmeer to quiet title. 20 Mo. 15; Swift v. Insurance Co., 18 Vt.

Defendant Pilz disclaimed all interest in the 305; Pelton v. Insurance Co., 77 N. Y. 605;

premises, and, from a decree for plaintiff, de Rumsey v. Insurance Co., 17 Blatchf. 527, 1

ferdant Schmeer appeals. Modified. Fed. 396; Martin v. Insurance Co., 44 N. J. This is a suit to quiet the title to a small Law, 490; Bonham v. Insurance Co., 25 Iowa, tract of land 20 by 200 feet, situate in Mult328, 335. The instructions of the learned trial nomah county, and now within the corporate judge touching the question proceeded upon limits of the city of Portland. On July 31, the theory that if plaintiff had contracted for 1876, John Schmeer, Sr., who was then the the purchase of the land upon which the owner thereof in fee simple, executed and building was situated, had gone into posses- delivered to Peter Schmeer a deed granting sion, and performed on her part all the con- an estate therein, described as follows: "A ditions thereof to the date of the application, parcel of land, for the purposes of a road, she should be deemed to be the owner, and twenty feet wide, across the center, running for the purposes of the policy the title was east and west over and across the following in her name. This is in full accord with the described real estate: [Describing it.] The authorities cited, and is, as we believe, the said strip of twenty feet, so herein conveyed law of the case. The plaintiff, if not in de- for a road as above stated, is to be inclosed fault, was the sole and undisputed equitable by a good substantial board fence by the said owner of the lands; and, when she answer- Peter Schmeer, and kept in repair by him." ed that the title was in her name, she an- On October 29, 1880, Peter Schmeer deeded swered truly, in the ordinary acceptation the estate thus acquired to Rudolph Schmeer, of the term. In common parlance, the term but Rudolph did not record his deed until is used to express ownership, regardless of March 18, 1881. On November 30, 1880, Pet. any technical legal import, and an absolute er Schmeer was convicted in the circuit court

1 Rehearing pending.


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for said county of an assault, and on Decem- claims all interest in the premises; so that, ber 2d was sentenced to pay a fine of two as it concerns the north half, the plaintiff hundred dollars and costs, and judgment was must be held to be the owner in fee simple. entered accordingly. The premises in ques- unless the defendant Annie C. Schmeer has tion, or the estate of Peter Schmeer therein, obtained title by adverse possession. As it was sold under execution to satisfy this judg- | pertains to the south half, the decree of the ment, and was purchased by Thomas and El- court of December 31, 1881, in the case of len Uglow, who afterwards, on November 11, Northup against Rudolph Schmeer and wife. 1881, obtained a deed from the sheriff'. On precludes her in so far as she may claim tiNovember 17, 1881, Thomas and Ellen Uglow tle through Rudolph. The deed brings ber conveyed an undivided one-half interest to H. into privity with him, and, having been eseH. Northup. On December 31, 1881, in a suit cuted subsequent to the decree, leaves the de then pending, touching the title, wherein H. cree as effective against her as it is against H. Northup was plaintiff, and Rudolph him. But in so far as she may claim through Schmeer and wife were defendants, and devise from John Schmeer, Sr., and through which was commenced November 19th prior, deed from John Schmeer, Jr., and Sophia it was decreed that Northup was the owner Kirchoff, she is not thus precluded. This in fee and entitled to the possession of an claim is by independent title, coming direkt undivided one-half of the premises, and that from the source of Rudolph Schmeer's tite, Thomas and Ellen Uglow were the owners of and the question comes to this: Which of the remaining half. The plaintiff deraigns these is the better title, assuming that the title through Northup and the Uglows. In plaintiff has the Rudolph title? The deal 1882, John Schmeer, Sr., died, leaving a will, from John Schmeer to Peter Schmeer, under hy which he devised to the defendant Annie which Rudolph claimed, conveys only an easeC. Schmeer the undivided one-half of a six- ment. The description is: “A parcel of land acre tract of land, which, by its description, for road purposes.

The said strip covers the premises in question, and to John of twenty feet so herein conveyed for a road Schmeer, Jr., and Sophia Kirchoff the re- as above stated is to be inclosed," etc. Lanmaining half. On April 13, 1881, John guage of similar import was held in Robinson Schmeer, Jr., and Sophia Kirchoff executed v. Railroad Co., 59 lt. 126, 10 Atl. 522, to to Annie C. Schmeer a deed to the south half create an easement. In that case the estate of said tract described in the will; and on was described as "a strip of land four rods July 20, 1987, John Schmeer, Jr., and Sophia in width, across my land, and being the same Kirchoff obtained a decree against Annie C. land now occupied by the St. Albans and Schmeer for the north half,—the dividing line Richford Plank-Road Company for their reaa, running lengthwise through the center of the for the use of a plank road.” The words for premises in dispute. On February 12, 1986, the use of a plank road" seem to have been Rudolph Schmeer executed a deed to Annie C. decisive of the estate carved out, although the Schmeer, covering the interest conveyed to deed otherwise purported to be an absolute him by Peter Schmeer. On June 7, 1888, grant. See, also, Sanborn v. City of Miune John Schmeer, Jr., and Sophia Kirchoff ex

a polis (Minn.) 29 N. W. 126. So, in this case. ecuted a deel to Rudolph Schmeer, covering the words "a parcel of land for road purposes the north 10 feet, or one-half of the premises are indicative of an easement only, and are in dispute; and on July 20, 1889, Rudolph controlling as the measure of the estate grantdeeded to defendant Robert Pilz by the same ed; but the title which Annie C. Schmeer description. The defendant Annie C. Schmeer, obtains through the devise is a fee-simple tiby her answer, claims ownership in fee of the tle. We have been unable, after a very care disputed premises, except that portion occu- ful consideration of the testimony, to find that pied by a brick building 17 by 33 feet. The either party has made out a title by adverse defendant Robert Pilz filed a disclaimer of possession, except as it concerns the occuall interest in the premises.

pancy of the brick building. So we conclude W. Y. Masters, for appellant. Geo. W. that the plaintiff is the owner in fee simple of Hazen, for respondent.

the north half of the premises in dispute, and

also all that portion of the south half which WOLVERTON, J. By the record, the de- is covered by said building; that she is the fendant Schmeer can claim no interest what- owner of an easement in the remaining porever in the north half of the premises, as the

tion of the south half for road purposes, and decree of July 20, 1887, precludes her in to that end is entitled to possession; but favor of John Schmeer, Jr., and Sophia Kirch- that the defendant Annie C. Schmeer is the off, and this decree is later than the deed from owner of such remaining portion of the said Rudolph Schmeer to her. Subsequent to the south half in fee simple, subject, however, to (late of this decree, John Schmeer, Jr., and such easement. The decree of the court beSophia Kirchoff gave a deed to Rudolph to low will therefore be modified in accordance said north half, and a little later he deeded with these conclusions, neither party to recorto the defendant Robert Pilz, who now dis- er costs on the appeal.

(31 Or. 137)

this action, setting forth in his complaint as FALCONIO V. LARSEN.'

many different causes of action as there (Supreme Court of Oregon. May 1, 1897.)

were original claimants. It is alleged that INSOLVENCY_WAGES AS PREFERRED CLAIMS-AS

each of said claims was assigned for collecSIGNABILITY-SETTLEMENT PENDING SUIT- tion, and that the amount collected is to be EVIDENCE-INSTRUCTIONS.

paid to the respective claimants. 1. Act February 20, 1891, provides that claims

The principal question suggested by the for wages for labor performed within 90 days next preceding an assignment for creditors shall

controversy is touching the assignability of be preferred; that the laborer shall present a claims of laborers, the preferment of which sworn statement of the claim to the assignee the enactment is designed to promote. No within 30 days; and that, if it is contested, claim

contention is made but that the claimants ant shall proceed by verified complaint as in an action at law. Held that, after the sworn

might each for himself have prosecuted an statement has been presented by the laborer per- action in his own name of the nature here sonally, the claim is assignable, so that the as

adopted to establish his individual claim: signee may sue in his own name in case of con

but it is insisted that the preference which test. 2. In a suit under Act February 20, 1891, to

the law raises is a privilege strictly personal enforce, against an estate assigned for credit- to the claimant, and one which he alone can ors, preferred claims for laborers' wages, de

exercise; that the mode or process by means fendant pleaded a settlement, which was made with plaintiff, as assignee of the claims for col

of which he may avail himself of the privlection, without the knowledge of the attorney ilege is specifically pointed out by statute. who had been retained to prosecute the claims, and, being a procedure unknown to the comand was alleged to be fraudulent. Held, that a written agreement between plaintiff and the

mon law, it should be strictly followed in attorney that the former should make no sale

the establishment of the preferential right, nor transfer of the claims, and that the proceeds and, until fully perfected, it is not in any of the suit should be paid to the assignors under supervision of the attorney, and a notice of at

event assignable. The statute, in so far as torney's lien, were aduissible to show the au

it concerns the case at bar, is in effect as thority and relations of the plaintiff and the at- follows: That hereafter, whenever any astorney.

signment for the benefit of creditors shal} 3. Where it was shown that defendant knew of the attorney's employment and his supervisory

be made, the debts owing to laborers or eni'control of the proceeds, before making the set- ployés, which have accrued by reason of tlement, it was proper to charge that any set- their labor or employment, to an amount tlement made out of court after an action is begun, without the knowledge of plaintiff's attor

not exceeding $100 to each employé for work ney, will be viewed with suspicion.

and labor performed within 90 days next

preceding the assignment, shall be considerAppeal from circuit court, Multnomah

ed and treated as preferred debts, and such county; E. D. Shattuck, Judge.

laborers and employés shall be preferred Action by Donny Falconio against E. S.

creditors, and shall first be paid in full; but, Larsen. Judgment for plaintiff, and defend

if there be not sufficient to pay them in full, ant appeals. Affirmed.

then the same shall be paid to them pro rata W. S. Perry, for appellant. M. J. Mac- after paying costs. Any such laborer or emMahon, for respondent.

ployé desiring to enforce his claim for wages

under sections 1, 2, and 3 of this act, shall WOLVERTON, J. The purpose of this present a statement under oath, showing the action is to establish 98 different and dis- amount due after allowing all just credits tinct claims, ranging in amount from $1.25 and set-offs, the kind of work for which said to $100, preferred by certain laborers and wages are due, and when performed, to the employés, against the estate of E. S. Lar- assignee, within 30 days after the property sen, an insolvent debtor, for labor and sery- shall have been placed in the hands of such ices rendered the said Larsen within 90 days assignee. (The form of the statement is givprior to the date of his assignment for the en, and runs in the first person.) And there benefit of his creditors, and is prosecuted upon he shall serve upon the debtor, or upunder the provisions of an act entitled "An on his assignee where personal service canact to protect employés and laborers in their not be had, a copy of such claim, and thereclaims for wages," approved February 20, after it shall be the duty of the assignee 1891. Larsen was a contractor for the con- to report the amount of such claim or claims struction of a ditch for irrigating purposes to the court having jurisdiction, together in Wasco county, and the claimants were with a statement of all costs occasioned by laborers, and in that capacity performed the assignment; and such court shall order work, labor, and services thereon at his said claims to be paid after payment of special instance and request. Each of them costs and expenses of the assignment, out made a statement of his claim under oath, of the proceeds of sales of the property asin all respects as required by the statute, signed: provided that any person interested and presented the same to the assignee may contest such claim or claims, or any within 30 days after the assignment. Some part thereof, by filing in said court excep20 days later, Larsen filed exceptions thereto, tions thereto, supported by affidavit; and and, thereafter they were all assigned by the thereupon the claimant shall be required to claimants to Donny Falconio, who brings establish his or her claim by judgment in

1 Rehearing denied.

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