against him the court should also complete it in his favor by paying him the balance of the price in its custody for that purpose. His contumacy cannot be punished by withholding it. The only penalty to which he is amenable is costs and disbursements.

6. Findings of fact are not appropriate or requisite unless there are issues of fact to be determined: Kime v. Thompson, 60 Or. 183 (118 Pac. 174). The order of the court overruling the demurrer to the complaint aptly disposes of the issue of law thus tendered. The findings of fact in the instant case were wholly superfluous, but do not constitute harmful error or vitiate the decree in any manner.

The decree of the Circuit Court will be modified by allowing John A. Smith to take the money brought into court for him, but will be otherwise affirmed with costs. MODIFIED. REHEARING DENIED.

MR. CHIEF JUSTICE MOORE, MR. JUSTICE BEAN and MR. JUSTICE HARRIS Concur.

Denied February 27, 1917.

ON PETITION FOR REHEARING.

(163 Pac. 309.)

On petition for rehearing the former opinion rendered herein was adhered to.

REHEARING DENIED.

Messrs. Norblad & Hesse, for the petition.

Messrs. Dolph, Mallory, Simon & Gearin and Mr.

George C. Fulton, contra.

83 Or.-10

Department 2. MR. JUSTICE BURNETT delivered the opinion of the court.

This was the theory adthe complaint and Loar

7. The petition for rehearing seems to be based on the contention urged from the beginning that it is necessary to allege in a bill for specific performance that the defendant was the owner at the time of the commencement of the suit. vanced by the demurrer to v. Wilfong, 63 W. Va. 306 (61 S. E. 333), was cited arguendo in the former opinion in answer to this contention. The decision, however, was not made in consonance with that idea but went further to show that such an allegation was not necessary in a complaint for specific performance. This is the rule announced in 36 Cyc. 777, where it is said:

"The bill or complaint need not, according to the weight of authority, allege defendant's ability to perform, as his inability is a matter of defense; it is sufficient if it does not appear therefrom that performance is impossible. Some of the cases, however, are to the contrary."

The better reason is in favor of the text thus quoted. If it were necessary that the allegation of present ability to perform on the part of the defendant must appear in the bill, Weiss v. Bethel, 8 Or. 522, might be applicable in its teaching that an averment to the effect "that defendant is in possession of the whole of said property and claims some interest in the same as owner thereof" is not a sufficient statement of ownership.

8. In this case the cross-bill to which the demurrer was filed states that the defendants here commenced their action in ejectment and alleged in their complaint that they were the owners of said property referring to the realty in question. The demurrer to

the bill admits this averment to be true, and it is not perceived how in equity and good conscience the defendants can contend that the bill is defective even in that respect when they are confessedly maintaining on the law side of the court that they are the owners in fee simple. If the defendants are in the situation which the bill attributes to them in maintaining their ejectment action they are able to specifically perform an agreement to sell the land.

The ground, however, upon which the decision rests is that the valid contract of the defendant John A. Smith to convey the land and the performance by the plaintiff of its part thereof having been alleged, it is for him to show by affirmative defense why he may evade his covenant or refuse to perform it. We adhere to the former opinion.

MODIFIED. REHEARING DENIED.

MR. JUSTICE MOORE, MR. JUSTICE BEAN and MR. JUSTICE HARRIS concur.

Argued February 15, reversed and suit dismissed February 27, 1917. WILSON v. WASCO COUNTY.

(163 Pac. 317.)

Counties-Bonds-Elections-Validity-Certificate of County Court. 1. Under Laws of 1913, page 174, providing that the order of the County Court shall be conclusive as to regularity of proceedings for the issuance of road bonds if a majority of voters at any general or special election shall have voted in favor of issuing such bonds, the authority of the County Court depends upon whether a majority of the voters actually voted for the measure, and the order of the County Court does not foreclose an investigation into the election.

Counties Bonds-Election-Count of Votes-Majority.

2. The majority of those voters voting on the issuance of bonds for building and maintaining county highways, and not the majority of all voters voting at the election, determines whether such bonds shall be issued under Laws of 1913, page 170.

From Wasco: WILLIAM L. BRADSHAW, Judge.

An injunction suit by O. E. Wilson against the county of Wasco, F. S. Gunning, County Judge, F. C. Clausen, R. D. Butler, county commissioners, constituting the County Court of Wasco County, Oregon, L. B. Fox, county clerk of Wasco County, in which plaintiff obtained a decree and defendants appeal.

Department 2. Statement by MR. CHIEF JUSTICE MCBRIDE.

This is a suit to enjoin the defendants from issuing the bonds of Wasco County, Oregon, under the provisions of Chapter 103, Laws of 1913, in the sum of $260,000, for the purpose of building and maintaining permanent highways. The amended complaint alleges that the plaintiff is a citizen, resident and taxpayer of Wasco County, and a freeholder therein, and states the official capacity of the defendants other than the county; that on the eighteenth day of September, 1916, the County Court of Wasco County, Oregon, by resolution, submitted to the electors of said county, at the general election on November 7, 1916, the question of issuing bonds for the purpose of raising money to the amount of $260,000, to be used in the construction and maintenance of public roads, and ordered and directed the county clerk to cause the proper notices of election to be issued and the question to be placed upon the official ballot; that the notices were regularly posted, and that at said election there were cast upon said question of said bonding 3,921 votes, of which 2,011 were "Yes," and 1,910 were "No," the majority for said bonds being 101; that on November 25, 1916, the County Court made and entered an order to that effect, which order further stated:

"That a majority of voters voting at said election voted in favor of the issuance of said bonds so submitted at said election, and that said bonds carried."

The complaint then avers that in truth and in fact there was a larger number of voters who voted at said election for certain officers than 4,021, to wit: For district attorney there were cast 4,351 votes; for sheriff, 4,285 votes; for county treasurer, 4,206 votes; for county assessor, 4,213 votes; upon the so-called brewers' amendment, 4,178 votes; and on the prohibition law, 4,135 votes. The complaint contains no allegation that there were any irregularities in connection with the submission of the proposition to the voters, but raises the single question as to whether the measure received a sufficient number of votes, or, in other words, as to whether it carried or lost. The only question presented is as to the construction of Section 11, Chapter 103, Laws of 1913. The contention is made by the plaintiff that under this section in determining whether the matter of bonding the county has been carried or lost the votes cast upon that particular question are not conclusive, but that the total number of voters voting at said election must be determined in some other way; and that unless a majority of all voters voting at said election upon this or any other matter are in favor of the bonds the proposition is lost. There was a general demurrer to the complaint, which was overruled, and the defendants electing to stand upon the demurrer there was a decree setting aside all orders of the County Court, declaring the proceedings for the issuance of said bonds void, and enjoining the issuance thereof, from which decree defendants appeal.

REVERSED AND SUIT DISMISSED.