injured party." 2 Pars. Cont. *527. See, also, Bean v. Atwater, 10 Am. Dec. 91; Dermott v. Jones, 23 How. 220; Add. Cont. (Abbott & Wood's Ed.) *190. For full discussions and illustrations of the rules here alluded to, see note by Mr. Serjeant Williams to Pordage v. Cole, 1 Saund. 3191; 2 Pars. Cont. 521, note (r). Guided by these rules, we find no difficulty in arriving at a satisfactory interpretation of the agreement in question. The defendant undertook to pay plaintiff 25 per cent. of his subscription when the first 10 miles were graded, running eastward from Marshfield; 20 per cent. when the rails were laid, etc.; and the balance, or 10 per cent., when the road was completed to Myrtle Point. The payment of the last installment and the completion of the road to Myrtle Point were to be concurrent events, and are, therefore, mutual and dependent; but, as touching all other payments, it was contemplated, and so considered by the parties, that they should be made prior to the completion of the road to Myrtle Point, and dependent only upon the completion of the designated sections thereof. The plaintiff has its right of action for the apportioned consideration as soon as it has performed the designated work, because it has earned it, and is entitled to it under the agreement. The stipulation for completion by the modified agreement is as follows: "Road to be finished to Myrtle Point from Marshfield before May 1, 1891, and to Roseburg within a year from the time it reaches Myrtle Point." It was also agreed that, in case delay was caused by reason of the procuring of the rights of way, collection of the Coos county or Roseburg subsidy or other just cause, that the times named should be extended a reasonable time to cover such delays. The time designated for the completion of the road to Myrtle Point must be considered as material, because the parties evidently so intended it from the first, and so treated it in the execution and acceptance of the modified agreement. The plaintiff was required to complete the road so far within the time fixed, and, if it failed, it was in default; but such default would not affect any right of action which might have accrued to it theretofore under the agreement for the completion of specified portions of the work. It could not, however, recover upon the dependent undertaking, unless the defendant waived the stipulation touching such time of completion, nor could it recover upon such of the independent covenants respecting which performance had been delayed beyond the time fixed for such completion to Myrtle Point. Whatever may be the rule in equity respecting the matter, at law the time within which a contract is to be performed is generally regarded as material, and no action can be maintained for recovery where performance does not take place within the time limited. Bish. Cont. § 1344; Slater v. Emerson, 19 How. 238, 239; Warren v. Bean, 6 Wis. 120; Morrison v. Wells (Kan. Sup.) 29 Pac. 601.

The defendant stipulated what should be

considered cause for delay in completing the road as required, and by this stipulation he must be bound; and, if any delay has been caused by reason of procuring the rights of way, collection of Coos county or Roseburg subsidy, or other just cause, plaintiff should have the benefit of such delay, and the time thereof added to the time fixed for completion to Myrtle Point, and the result would fix the stipulated time of completion. The jury is very properly the judge of whether any and what delay had been caused by such hindrances. So that, if plaintiff has earned either or all of the first four installments prior to the stipulated time of completion to Myrtle Point, it has its right of action accordingly, regardless of whether it has fully completed the road to that place or not, and for full compensation if it has fully performed in that particular without reference to its agreement to continue it to Roseburg. The full consideration having been made payable prior to the time of the stipulated completion to Roseburg, such completion must be regarded as a condition subsequent; and so must the stipulations requiring the maintenance of a depot and switch to tide water at Coquille City. This latter contemplates a continued service, and from its very nature is a condition subsequent; but the condition is such as might be enforced, and perhaps a failure to comply with it would be visited with damages. Railroad Co. v. Parks, 86 Tenn. 554, 8 S. W. 842; Chamberlain v. Railroad Co., 15 Ohio St. 225; Swartwout v. Railroad Co., 24 Mich. 405.

Now, as to the defenses relied upon. The legal effect of the one touching the failure to build and maintain the depot and switch at Coquille City has already been determined. As a basis of recoupment or set-off the defendant contends that he has been damaged by reason of the fact that he owned and possessed considerable real property in and about Coquille City, which he alleges would have been very materially enhanced in value if the road had been fully constructed and equipped to Roseburg within the time fixed by the agreement of subscription, and that he would have been able to have sold and disposed of the same at a large profit. It is hardly possible to conceive of any principle or rule by which such damages could be cor rectly and definitely ascertained and determined. They rest upon a contingency which may never have happened had the road been completed as agreed upon. Would the prop erty certainly have been disposed of by its owner? He may have retained it for higher prices, as many have done during boom times, and finally not have sold at all. Or we may assume that his wisdom would have prompted him to sell every foot of his holdings. By what standard could his supposed profits be measured? Would he have sold when values were at their highest, or would he have been satisfied with a reasonable profit? And then we come back to the first principle: Would the property have been enhanced at all, and,

if so, what would have been the ratio? So it is that these alleged profits are purely speculative, and extremely problematical. They are too remote and uncertain to form the basis of damages. The advantages which would have accrued to the defendant by the completion and operation of the road would have been such as would have inured to every other individual similarly situated, such as would have been enjoyed in common with other individuals of the community. This doctrine is applied in offsetting benefits to be derived from the construction of highways or railroads against damages assessable for the exercise of eminent domain. Whatever of peculiar or especial benefit that might accrue or result to the lands of the party claiming damages may be offset, but remote or speculative benefits in anticipation of a rise in property for town-site purposes, or generally by reason of the proposed opening of a highway, construction of a railroad, or other improvements, cannot be considered. Such benefits are the common privilege of all the individuals of the community, and one cannot be permitted to profit by it more than another. Beekman v. Jackson Co., 18 Or. 283, 22 Pac. 1074; Mills, Em. Dom. §§ 152, 153; Whitely v. Boom Co. (Minn.) 38 N. W. 753; Railway Co. v. Waldo, 70 Mo. 629. The same principle has been applied in cases where a city sought to recover damages from a railroad company for failure to comply with certain conditions of a subscription contract after the city had fully complied upon its part. Missouri, K. & T. Ry. Co. v. City of Ft. Scott, 15 Kan. 435. See, also, Railway Co. v. Thompson, 24 Kan. 170. So has it to individuals. Railway Co. v. Bensley, 2 C. C. A. 480, 51 Fed. 738. Blagen v. Thompson, 23 Or. 239, 31 Pac. 647, is not in point, nor can the doctrine therein enunciated be made available in support of defendant's position. It cannot reasonably be supposed that a railroad company, in accepting subscriptions of subsidies in aid of the construction of its road, should have had in contemplation damages of the nature discussed that might accrue to each individual subscriber should it fail in its enterprise. Such damages would not be the approximate and natural consequences of the breach.

Much of what has been said will apply to the attempt to recoup for the installment of $250 paid. If it is true that the plaintiff completed the grading of the first 10 miles of the road eastward from Marshfield by February 5, 1891, then the plaintiff had earned this sum, and, being justly due, it has been paid, then, before the defendant can recoup, he must show that he has been damaged. There has not been a complete failure on the part of the company to build the road; indeed, it was later constructed to Myrtle Point, but not at the exact time in which the company was required to build it. So it cannot be said that there has been a total failure of consideration for the subscription. In the

But

case of Light Co. v. Miller (Ind. Sup.) 30 N. E. 23. the sole and only consideration for the subsidy had, in effect, entirely failed, and hence it was maintained that the amount paid was the measure of the recovery. the case here is different. There has been a substantial compliance with the conditions of the subscription,-that is to say, a very substantial and material condition of the subsidy has been complied with,-and hence there is not a total failure of consideration. The defendant can show and recoup such special and approximate damages as he has sustained by reason of the breach by plaintiff in not completing the road to Myrtle Point at the time fixed, if such is the case, and by failure to construct to Roseburg; but for such damages as have been shared by the community in general, and himself among the rest, he can have no claim. For these considerations the judgment of the court below is reversed, and a new trial ordered.

(30 Or. 382)

CONNOR et al. v. CLARK. (Supreme Court of Oregon. April 5, 1897.) APPEAL STIPULATION TO TRANSFER CAUSE-SUBSEQUENT AGREEMENT.

Hill's Ann. Laws, § 2327, subd. 3, provides that the transcripts in all appeals taken from certain counties, "unless otherwise stipulated by the parties," shall be forwarded to the next succeeding term of the supreme court, either at S. or P. An appeal was perfected September 10, 1892, and the next succeeding term was at S., in October. The parties stipulated that the cause might be heard at P., where the next term would occur in May, 1893. The transcript was not filed at P. in time. Held, that the parties could not, by a subsequent agreement, transfer the cause to S., and invest the court with jurisdiction by filing the transcript there.

Appeal from circuit court, Crook county.

Action by Connor Bros. against William S. Clark. From a decree in favor of plaintiffs, defendant appeals. Dismissed.

S. T. Richardson and G. W. Barnes, fór aðpellant. E. B. Dufur, for respondents.

PER CURIAM. This is a motion to dismiss an appeal. The record shows that on March 24, 1892, the plaintiffs, by consideration of the circuit court of Crook county, obtained a decree against the defendant, from which the latter on September 10, 1892, perfected an appeal by serving and filing a notice thereof, with proof of service, and giving an undertaking therefor, but the transcript was not filed in this court until June 20, 1893. It also appears that at the time the appeal was perfected the parties stipulated to try the cause at Pendleton, but on June 4, 1893, they entered into another agreement, by which it was stipulated that the appeal should be heard at Salem; and the question is presented whether the transcript was filed within the time prescribed by law. The statute declares that: "The

transcripts in all appeals taken from Wasco, Crook, or Sherman counties, unless otherwise stipulated by the parties, shall be forwarded to the next succeeding term of said supreme court after the appeal shall be per,fected, and if said next succeeding term after the perfection of said appeal shall be held at Salem, then the cause shall go to that place for hearing and decision, and the transcript shall be forwarded there by the first day of said term of court, as aforesaid; but in case the next succeeding term of the supreme court after such appeal shall be perfected shall be held at Pendleton, then said cause shall be heard and determined at Pendleton, and such transcript shall be forwarded by the first day of said term at Pendleton." Hill's Ann. Laws Or. § 2327, subd. 3. In appeals taken from a judgment or decree rendered by the circuit court in either of these counties, the appellant, upon perfecting his appeal, must forward the transcript to the clerk at the place of holding the next succeeding term of the supreme court; but the parties, by agreeing to try the cause at one place, when by statute it is triable at another, thereby stipulate that the next succeeding term of this court shall be other than that prescribed by law. If no agreement had been entered into by the parties, it would have been the duty of the defendant to have filed the transcript at Salem on or before the second day of the October term for 1892, but, having stipulated at the time the appeal was perfected that the cause should be tried at Pendleton, it was incumbent upon the appellant to forward a copy of the record to that place by the first Monday in May, 1893. This duty he neglected to perform, and, no order ex

tending the time within which the transcript was to be filed having been obtained, this court on the Tuesday next following the first Monday in May, 1893, lost jurisdiction of the cause; and, such being the case, jurisdiction could not be conferred by the subsequent stipulation of the parties to try the appeal at Salem.

It appears by the affidavits of appellant's counsel that about April 1, 1893, he entered into an agreement with respondents' counsel-and in this respect he is corroborated by the admission of the latter-whereby it was stipulated that the cause should be tried at Salem, though the written memorandum to that effect purports to have been executed June 14, 1893; and this presents the inquiry whether the parties, having once selected the place of trial, different from that prescribed by law, can thereafter change it without filing the transcript at the place agreed upon. If such a change is permissible, and the stipulation was entered into at the time stated in the affidavit, it would necessarily follow that the cause was transferred to Salem before the appellant was in default at Pendleton. The appeal having been perfected September 10,

1892, and the next succeeding term of this court occurring at Salem on the first Monday in October of that year, the transcript should have been forwarded to this place; but the parties, having stipulated that the cause might be tried at Pendleton, exhausted, in our judgment, the power conferred by the statute, and thereafter could not by stipulation transfer the appeal to Salem, or invest the court with jurisdiction of the cause by filing the transcript with the clerk here. If such a proceeding were permissible, then the parties to an appeal might, by stipulation entered into at any time prior to the first day of a term of this court, transfer a cause from one place to another, and thus keep it in vibratory motion for an indefinite period. We cannot think the statute contemplates such a transfer, and it follows that the appeal is dismissed.

(30 Or. 375)

WILLIAMS v. CULVER. (Supreme Court of Oregon. April 5, 1897.) PROMISSORY NOTE-DEFENSE-AGREEMENT TO CREDIT ACCOUNT.

While the execution of a note is presumptive evidence that the maker owed the amount expressed therein, the maker of a note in renewal of a former note may show as a defense, against an action thereon, that, when the renewal was made, an unsettled account existed in his favor against the payee, which it was agreed should be credited on the new note when adjusted, and that the account was afterwards adjusted, and the amount due him thereon was larger than the amount of the note.

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

Action by Jefferson Williams, Jr., adminis

trator, against S. J. Culver, on a promissory

note. A demurrer to the answer was sustained, and judgment rendered for plaintiff, from which defendant appeals. Reversed.

This is an action by the plaintiff, as administrator de bonis non of the estate of P. W. Williams, deceased, to recover the sum of $863.67, alleged to be due upon a promissory note executed by the defendant to the deceased, and interest thereon at the rate of 10 per cent. per annum from August 19, 1891, and the further sum of $100, attorney's fees. The defendant, after denying the material allegations of the complaint, alleges, in substance, "that on August 19, 1891, the deceased was the owner and holder of another note executed by the defendant more than six years prior thereto, upon which a number of payments had been made, and against which he had a counterclaim upon an account for work and labor performed for, and money paid and advanced to, the deceased, under an agreement with the latter that the amount thereof should be deemed a payment upon the old note, and that, at the time the new note was executed, the amount due the defendant from the deceased had not been settled or agreed upon, nor had any part thereof been

credited upon the old note; that, in order to in- [ duce the defendant to execute the new note, the deceased represented to him that the amount due on said account could be credited as well upon the new as upon the old note; and that if the defendant would execute a new note, in renewal of the old, the defendant could there after make out a statement of the said account, and the amount thereof would be credited by the deceased on the new note as a payment thereon; and that, relying on such represen tations, he was induced to, and did, execute the new note; that on September 18, 1891, the defendant, in pursuance of such agreement, made out and sent to the deceased an itemized statement of his demand, whereupon the said account was settled, and it was then agreed that the deceased was indebted to the defendant in the sum of $906; that the defendant was not indebted to the deceased at the time the new note was given, and the same was executed without consideration, and under a misapprehension of the facts." A demurrer to this answer having been sustained, and the defendant declining to plead further, the court rendered judgment against him for the amount demanded, from which he appeals.

S. H. Hazard, for appellant. J. W. Hamilton, for respondent.

MOORE, C. J. (after stating the facts). The question presented by this appeal is whether the new matter alleged in the answer constituted either a defense or a counterclaim to the cause of action stated in the complaint. Counsel for defendant contends that, his client having fully paid the amount due on the old note before giving the new one, there was no consideration for the execution of the latter, and hence the matter pleaded constitutes a defense to the action. The rule is settled in this state that the execution of a promissory note is prima facie evidence of an accounting and settlement between the parties of all existing demands, and afford presumptive evidence that at the date of the execution of the instrument the maker owed the payee the amount named therein. Matasce v. Hughes, 7 Or. 39; Hoyt v. Clarkson, 23 Or. 51, 31 Pac. 198. The new note, having been given in renewal of the old, to evidence the amount presumptively due thereon, was supported by a valuable consideration; and, as the defense pleaded would have been availing as a payment upon the old, the question arises, why should it not be equally effective when invoked for the same purpose as a defense to the new note? The greatest objection, perhaps, that might be urged against that proposition, would probably be that it would convert a defense involving a want of consideration into a plea of payment of a valid instrument; but, waiving this difficulty for the present, we will consider the inquiry suggested, and treat the subject as involving the latter defense.

In Mahan v. Sherman, 7 Blackf. 378, an action having been brought on a promissory note, the defendant alleged that, at the time the instrument was given, it was agreed between the parties that an account for work, etc., which the maker held against the payee, should, before the note became due, be adjusted, and the amount thereof applied in part or full payment of the obligation; but it was held that the defense was unavailing. the court saying: "A verbal contract, contemporaneous with the note, is relied upon to show that the note was not to be paid till a certain account should be adjusted, and the amount credited on the note. That would be making the promise conditional, which, upon its face, is absolute." In that case the maker of the note proposed to show that the payment thereof was dependent upon a settlement of the account between the parties, and, as oral testimony is inadmissible to contradict or vary the terms of a written agreement, the court very properly held that the defense was ineffectual. In Eaves v. Henderson, 17 Wend. 190 (also an action on a promissory note). the defendant was permitted to prove, over the plaintiff's objection, that, at the time the note was executed, the payee was indebted to the maker in the sum of $300.25 on account of goods sold and delivered by the defendant to the plaintiff, under an agreement that the amount should be applied on the note; but it was held, on reversing the judgment, that the evidence was inadmissible, the court saying: "But the difficulty here, in respect to the two small items of articles delivered before the giving of the note, lies in the evidence being a contradiction of the amount expressed in the note." It would seem from this decision that, if the maker of a note promised to pay a sum in excess of the amount due on a settlement of accounts with the payee, he could not, in an action on the note, allege or prove that it was agreed, at the time the note was given, that an account due from the payee to him was to be credited as a payment thereon.

If the rule announced in Eaves v. Henderson, supra, be correct, then the decisions of this court to the effect that the giving of a promissory note raises a disputable presumption only that all antecedent accounts existing between the parties have been considered and adjusted, and that the amount expressed in the written promise is the balance found to be due the payee from the maker on such settlement, are erroneous, and should be corrected, so as to make the presumption conclusive. Note the effect of such a construction by putting a hypothetical case: A. owes $1,000 on account to B., his father, who, desiring to obtain a short loan, and realizing that his son is not prepared at that time to settle or pay the amount due on the account, executes to A. a note for and obtains $100. Now, to say that this transaction conclusively establishes the settlement of the account between the

father and his son would amount to a travesty on justice, and the bare statement of the consequences dependent upon such a conclusion shows its own absurdity. Such irrational deduction cannot, on principle, be the law applicable to the facts stated in the hypothetical case. The true rule, founded in reason, is correctly enunciated by Lord, C. J., in Hoyt v. Clarkson, supra, in which, speaking for the court, he says: "The presumption is in favor of the correctness of the settlement, and that the note given for the balance ascertained on such settlement expresses the truth. Hence the general rule that a settled account will not be opened on mere conflicting evidence, and that, when opened, errors or omissions not alleged will not be considered, though there may be some evidence tending to prove them. In such case the party claiming that there were any errors or mistakes must allege them fully and precisely, so as to inform his adversary, and so that issue may be joined upon them." It is true the opinion in that case is predicated upon the assumption that a settlement of the accounts had been made in the computation of which some items had been inadvertently omitted; and, upon the theory that equity will relieve against mistakes, the court had power to open and re-examine the account as to the items alleged to have been omitted. But can there be any difference, on principle, between a case in which a mistake is relied upon to correct an error occurring in the settlement of an account, and one in which there had been no settlement whatever, and the maker of a promissory note had intentionally omitted to claim the credit due him from the payee thereof? Taking the hypothetical case to illustrate the answer to this question: If the father, in the case supposed, desiring to give his son $100, but not having the amount on hand, had manifested his intention in this respect by executing to the object of his bounty a note for that sum, it would not follow that the amount due the father on the account from the son was thereby settled and remitted; nor would the maker of the note be precluded, in an action brought by the son to recover the amount expressed to be due thereon, from showing that the instrument was not supported by a valuable consideration. This is so, because oral testimony is admissible to prove that a written obligation to pay a sum of money was executed without a valuable consideration. Such being the case, an intentional omission of an amount due on an account to the maker of a promissory note from the payee thereof at the date of its execution is equivalent to a lack of consideration pro tanto, in view of which we fail to see any valid reason why the rule should not be enlarged so as to permit the admission of evidence to overcome the presumption of the settlement of the account, and to establish a counterclaim for the amount so due as a defense to an

action on the note. This would not be varying or contradicting the terms of the written agreement, because, under the very liberal rules of code pleading with respect to set-offs, such a claim could be interposed as a defense to the action.

In the case at bar it is alleged that the deceased agreed to credit on the new note the amount of said account, and that, a statement thereof having been furnished, the account was settled and agreed upon. The facts here alleged would constitute a payment of the note. If the deceased had agreed to give the defendant credit on his note for a given sum in consideration of certain property which was to be delivered to the payee, and the same was surrendered and accepted in pursuance of the agreement, it must be admitted that this would amount to a payment; and, this being so, an account stated must also constitute a payment. "To constitute a payment," says Harris, J., in Bank v. Gay, 19 Barb. 459, "money or some other valuable thing must be delivered by the debtor to the creditor, for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose." If there had been no agreement to credit the amount of this account on the note, it would, nevertheless, be permissible to allege and prove the facts relied upon as creating a counterclaim. In the case at bar, however, the defendant, after alleging the facts, states, as a conclusion of law, that they constitute a want of consideration, instead of a payment; but as a pleading is to be liberally construed, in view of the facts alleged, and not entirely upon a statement of the conclusion of law contained therein (Hill's Ann. Laws Or. § 106), we think the facts alleged constituted a defense to the action, and that the court erred in sustaining the demurrer, for which reason the judgment is reversed, and the cause remanded for trial.

(30 Or. 457)

STATE v. TICE. (Supreme Court of Oregon. April 5, 1897.) FORGERY-TESTIMONY AS TO HANDWRITING-DEC LARATIONS OF CO-CONSPIRATOR.

1. Under Hill's Ann. Laws, § 765, providing that evidence respecting the handwriting may be given by a comparison with writings admitted or treated as genuine by the party against whom the evidence is offered, an instrument not admitted or treated by defendant as genuine cannot be used for the sole purpose of comparing the handwriting with that of another paper charged to have been forged.

2. Testimony as to the genuineness of handwriting may be extended to a mark or cross by means of which an illiterate person signed his name, its weight being for the jury.

3. Declarations of a party to a conspiracy, not made at the time of the commission of the unlawful act, so as to become a part of the res gestæ, are not admissible against one charged as a co-conspirator.

4. On a charge of forging a will in pursuance of a conspiracy in which defendant participated, where the evidence tended to show that de