ant should be enjoined from placing any dam or other obstruction in the stream until it has constructed a channel to the beach of sufficient capacity to carry off the water of the creek to the same extent as the natural channel.

reasonable being denied no allowance can be
made.

Multnomah County; Robert G. Morrow,
Department 1. Appeal from Circuit Court,
Judge.

Action by the Columbia River Door Company, a corporation, against W. F. Todd (unand others, in which defendant last named married), E. P. Preble, William E. Markwood, filed cross-complaint seeking foreclosure of two mortgages. Judgment dismissing plaintiff's suit and foreclosing said mortgages, and plaintiff appeals. Decree rendered for plaintiff.

This is a suit to foreclose a mechanic's

The whole case is before us upon the pleadings and testimony, and in the interest of all parties it should be fully settled here. Each party is claiming more than it is entitled to. Therefore the decree below will be modified by enjoining defendant from obstructing the stream by dam, or otherwise, at any point at or above the dam shown in the testimony, and from rebuilding the same at any place in the stream, until it has provided a channel of sufficient capacity to prevent such dam lien. The complaint alleges, substantially, from overflowing the land of plaintiffs; and that G. A. Morrison, doing business under the plaintiffs, and each of them, shall be enjoin-name of “G. A. Morrison Lumber Company," ed from landing or going upon the lands of defendant between the westerly meander lines above described and its easterly boundary, without defendant's permission, and that neither party recover costs in this court. In all other respects the decree is affirmed.

2. MECHANICS' LIENS 126 STATUTES FAILURE TO GIVE OWNER STATEMENT OF MATERIALS FURNISHED.

Failure to mail or deliver statements of materials furnished to owner as required by L. O. L. § 7416, as amended by Laws 1915, p. 224, rendered nonlienable only those items delivered after May 22, 1915, when amendment became effective; it not being retroactive.

3. MECHANICS' LIENS 157(5)-AMOUNT OF LIEN-NONLIENABLE ITEMS.

Though some of the items of materials furnished were nonlienable, the subcontractor is entitled to a lien for the lienable items after deducting the credits for returned materials. 4. PARTIES 76(1) · WANT OF CAPACITY ASSUMED NAME WAIVER BY FAILURE TO PLEAD. In action to foreclose mechanics' lien where plaintiff alleged its assignor was doing business under a certain name, defendant's failure to plead noncompliance with requirements of Laws 1913, p. 270, as to doing business under an assumed name, waived any benefit which would otherwise accrue to them because of assignor's noncompliance with the statute. 5. MECHANICS' LIENS 310 (3)—ATTORNEY'S FEE-LACK OF EVIDENCE.

at the special instance and request of E. P. Preble, contractor and agent of the defendant W. F. Todd, owner of the land, sold and delivered certain building materials, consisting of lumber, hardware, paint, doors, and mirrors, to be used in, and which were used in, the construction of two certain buildings; that the reasonable value of the materials so furnished and used in the construction of the buildings is $1,145.85, no part of which has been paid. Then follow allegations of the filing of the lien, the assignment thereof to plaintiff, the allegation that $200 is a reasonable attorney's fee for the foreclosure, and a prayer for the relief sought. The owner of the premises, W. F. Todd, filed an answer, challenging the right of plaintiff to recover upon the grounds: (1) That the notice of lien was not filed within the statutory time after the completion of the buildings; (2) that prior to the delivery of any materials this defendant posted notices upon the premises that he (the owner) would not be responsible for any labor or materials used in the construction of the buildings; (3) that this defendant was never furnished with any invoices of any materials furnished for use in such buildings or any copies thereof, and was never notified by the G. A. Morrison Lumber Company of the furnishing of any materials or given any authority to so furnish them, until long after he had settled with his contractor. These allegations are followed by this averment:

"This answering defendant further alleges that he is informed, and has reason to believe and does believe, and therefore alleges, that much of the material now sought to be recovered for in this suit was not delivered upon said premises and never entered into the construc tion of the buildings thereon."

The defendant Markwood filed an answer and cross-complaint, wherein he sought the foreclosure of two mortgages upon portions of the premises involved in the controversy, In mechanic's lien foreclosure action where and praying that the liens of such mortgages there was no evidence as to whether $300 was a reasonable amount to be allowed as attorney's be adjudged prior and superior to that of fees, plaintiff's allegation that such sum was plaintiff. Replies having been filed, a trial

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

resulted in a decree dismissing plaintiff's, ecuted, the building which had been freed suit and foreclosing Markwood's mortgages. Plaintiff appeals.

taken thereof is thereby waived.

Beamish | the lower court and the case has been reversv. Noon, 76 Or. 415, 149 Pac. 522; Schucking ed in this court, it has been the practice to

v. Young, 78 Or. 483, 153 Pac. 803.

[5] The complaint alleges that $300 is a reasonable sum to be allowed as an attorney's fee for foreclosing the lien, and this averment is denied by the answer. No evidence was offered upon the issue so joined, and therefore nothing can be allowed there on. Guernsey v. Marks, 55 Or. 323, 106 Pac.

334.

It follows that a decree should be entered here foreclosing plaintiff's lien in the sum of $922.15, and giving such lien priority over the two mortgages of the defendant Mark wood; plaintiff to recover its costs and disbursements in the lower court, and neither party to recover costs in this court. It is so ordered.

remand the case for a new trial. It appears upon the face of the record before this court that the appellant is now entitled to a judgment against the defendant for the difference between the original contract price and the price at which the contract was sublet, or four cents per lineal foot; yet under the issues made by the pleadings defendant might tender and produce at a second trial in the lower court testimony which might contradict the prima facie case made by plaintiff, and in the interests of justice, and to give it such right, we are of the opinion that the case should be remanded.

HALDEMAN v. WEEKS.

MCBRIDE, C. J., and BURNETT and (Supreme Court of Oregon. HARRIS, JJ., concur.

(90 Or. 31)

WALLACE v. OREGON ENGINEERING &
CONSTRUCTION CO.

(Supreme Court of Oregon. Oct. 15, 1918.)
APPEAL AND ERROR 1177(1)-DISPOSITION
-RENDITION OF JUDGMENT.

Where judgment of nonsuit is reversed, notwithstanding it appears on the face of the rec ord that plaintiff is entitled to recover a specific amount, the case will be remanded for new trial where under the issues defendant might tender evidence to contradict the prima facie case.

Department 2. Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

On motion for rehearing. Motion overruled.

For former opinion, see 174 Pac. 156. Thomas Mannix, of Portland, and Grant B. Dimick, of Oregon City, for the motion. J. Dean Butler and Joseph E. Hedges, both of Oregon City, opposed.

PER CURIAM. In the former opinion by Mr. Justice Bean, 174 Pac. 156, it was held to be error for the lower court to sustain defendant's motion for nonsuit (against the plaintiff), and the case was reversed and remanded for new trial. The appellant filed a petition for rehearing in which he contends that this court should render him a judgment against the respondent for the amount of his claim. It appears from the record that under his contract the plaintiff was to receive ten cents for each lineal foot of pipe; that he sublet the contract at six cents per lineal foot, or a profit of four cents for each foot of pipe. His cause of action is to recover the amount of the difference between his original contract and the subcontract. Such fact appears upon the face of the record and is undisputed.

Appellant's counsel has cited respectable authorities from other jurisdictions, sustaining his position; but with one or two exceptions, where a nonsuit has been granted by

(90 Or. 201)

Oct. 15, 1918.)

1. TRUSTS 360-ENFORCEMENT-RIGHT OF ACTION BY CESTUI QUE TRUST AGAINST TRUSTEE.

A suit by the beneficial owner of mining stock against the trustee holding it must be dismissed, where the answer admits the trusteeship, the trust has not terminated by its terms, and there have been no dividends. 2. TRUSTS 44(1) - ESTABLISHMENT EVIDENCE-MUST BE CLEAR AND CONVINCING. Evidence of plaintiff's beneficial interest in notes held not sufficiently clear and convincing to establish a trust.

-

3. GIFTS 47(3)-To PARENT-PROOF-EQ

UITY RULE-APPLICABILITY.

Where the mother in a divorce settlement transfers some of her property to her daughter to reconvey the same when she became of age, on the promise of the daughter, then a minor, such reconveyance, a year and a half after the daughter becomes of age, does not constitute a gift to the mother, and the rule that requires a parent to prove that the transaction was bona fide, free from force, duress, or undue influence, and not manifest in gross detriment of the child's interest, does not apply. 4. INFANTS

30(1)-CONTRACTS-RATIFICA

TION AFTER MAJORITY.

A minor's contract to deed to her mother lands received from her mother in a divorce settlement is voidable, and is ratified by the daughter deeding such property to her mother after becoming of age.

In Banc. Appeal from Circuit Court, Multnomah County: W. N. Gatens, Judge.

Suit by Annie M. Haldeman against Sarah B. Weeks. From a decree for defendant, plaintiff appeals. Affirmed.

This is a suit in equity to secure a reconveyance of certain parcels of realty, and to declare a trust in the proceeds of a $5,000 note executed by the father of plaintiff to defendant, and to secure the possession of certificates of shares of stock in a coal company, and for an accounting for rents and profits on the real estate first mentioned.

In September, 1912, the father of plaintiff was being sued for divorce by defendant. At that time defendant was the record holder of title to a large amount of real estate, and negotiations were on for the settlement of the property rights outside of the divorce pro

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ceedings. The father of plaintiff was insist- of the capital stock of the Big Hill Coal Mining upon a division of the property, which ing Company; (2) a $5,000 note executed by would give him one half of the real estate, F. O. Weeks, father of appellant, to respond. and place the title to the other half in de-ent as part of the property settlement; (3) fendant and plaintiff herein. Defendant certain parcels of realty in Portland and adwould not consent to this, and thereupon joining thereto; and (4) the rents and profits plaintiff offered defendant, if a settlement of a farm near Portland, in which, by the were made on the basis agreed upon by the terms of the property settlement, appellant father of plaintiff, that she would, as soon and respondent were given an undivided oneas she became of age, deed to her mother her half interest as tenants in common for a periinterest in said real estate. Three other od of five years from date of settlement. conditions of the settlement were: That the [1] As to the first item, the evidence disthen husband of defendant should give a closes that such certificate was made out to note for $5,000 to defendant, and also turn respondent as trustee. The answer of reover two certificates of stock in a coal com- spondent admits that appellant is the benefipany, one to said defendant in her own right, cial owner thereof. There having been no and the other to defendant as trustee for dividends, no evidence was presented that the plaintiff, and give to plaintiff and defendant trust by terms has terminated, so nothing the income for five years from a farm near further need be said on this point. Portland wherein plaintiff and defendant [2] As to the second item, the exhibits and were to be possessed of an undivided one-other evidence show that this note was made half interest. This agreement was evidenced to respondent as sole payee; that by the terms by the execution of a formal agreement for of the property settlement it was to be paid the division of the property and the making of deeds to trustee, and, after the decree of divorce was granted, conveyances were made and delivered and the entire agreement carried out. On May 15, 1914, plaintiff became of legal age, and on or about November 3, 1915, she was married. About two weeks before said marriage, plaintiff made and executed deeds to the defendant conveying all of her interest in the real property given by the divorce settlement, which deeds, being found defective, were destroyed. About three days before said marriage, new deeds for the same purpose were executed and delivered. After being married, plaintiff and her husband resided with defendant. On April 1, 1916, plaintiff assigned her interest in an insurance policy on improvements on one of the parcels of realty in question to defendant. In the following May, through a disagreement, plaintiff and her husband were asked by defendant to leave her home. The following August this suit was commenced without notice to defendant other than the bringing of the suit, which is founded in fraud and undue influence, and further seeks to set aside the transfer on the ground that the relation of parent and child does not permit gifts from child to parent to the material disadvantage of the child. A verbal trust is also sought to be declared in the proceeds of the $5,000 note made out to defendant alone, and by the terms of the property settlement to be paid to defendant. There was a decree for defendant, and plaintiff appeals.

Wilson T. Hume, of Portland, for appellant. Plowden Stott, of Portland (Malarkey, Seabrook & Dibble, of Portland, on the briefs), for respondent.

OLSON, J. (after stating the facts as above). The relief sought in this suit covers four items: (1) A certificate for 8,108 shares

to respondent alone; and that the payments were so made by F. O. Weeks, the maker, to respondent, without objection and without inquiring whether appellant was receiving any of the proceeds. The evidence, however, is not convincing as to such prior understanding, and no trust should be declared except on clear and convincing evidence. Counsel for Weeks in the divorce settlement, testifying for appellant, says that F. O. Weeks requested the note to be made out to appellant and respondent jointly; that respondent refused and would not change the note; that she refused to incur the obligation of ac counting for the proceeds; and that upon said refusal F. O. Weeks executed the note.

[3, 4] As to the third item, counsel have contended for the well-known rule of law that a court of equity will guard the rights of children while standing in the relation of parent

and child, and will closely scrutinize gifts from child to parent requiring the parent to prove that the transaction was bona fide, free from force, duress, or undue influence and not manifest any gross detriment of the child's interest. It seems, however, that this rule does not apply to the case at bar. This was not a gift. At the time of the divorce property settlement, appellant had no rights to this property. She was not entitled to aliwas partially put in her name only after she mony or a property settlement. The property had promised respondent to deed it back as soon as she became of age. The contracts of a minor are generally not void but voidable, and this agreement was merely voidable. About a year and a half after becoming of age, after appellant had been out in the world and taught school for eight or nine months (the standard experience to cultivate self-reliance and independent action), after appellant was engaged and about to marry, she consummated the agreement made when the original property settlement was made, and conveyed her interest in the realty to re

and remanded, with directions to enter judgment for defendant.

spondent. The evidence fails to show fraud, duress, or undue influence. The deeds were made at two different times with at least The substance of the complaint is that ons three trips to the notary taking the acknowl- Hart had a contract with the defendant city edgments. Nearly six months later appellant for hauling wood, upon which there became transferred the insurance on a portion of the due to him in various sums during the month property. About a month later the farm was of March, 1916, the aggregate sum of $1,465, partitioned between respondent and F. O. which chose in action he had assigned to the Weeks with appellant's knowledge, and no plaintiff and upon which the city has paid objection on the part of F. O. Weeks or ap- $968, leaving a balance due in the sum of pellant, nor was appellant required to sign $497; also, that under the same contract said partition, or agreement, or consent there- during the month of April of that year Hart to, or execute any further waiver. It seems had earned $735, no part of which has been conclusive that appellant, while holding title paid, and that Hart also assigned that claim to an interest in said realty, was not a bene- to the plaintiff. After sundry denials, the ficial owner thereof but the mere holder of city alleges that Hart earned during the title to an interest therein, and that the re-month of March various amounts aggregatconveyance of said interest was not a gift as ing $1,599.97, all of which it had paid to the no consideration is required for the convey-plaintiff as his assignee; that during April ance of a bare legal title other than the ex- he earned $187.30 which was paid to the pressed or implied promise to so convey.

As to the fourth item, the rents and profits of the farm were reserved to appellant and respondent in the deeds given, pursuant to the settlement agreement. They were convey ed to respondent by her deeds November 1, 1915, at which time there were no uncollected rents. Appellant was not a beneficial owner of the realty, and it follows therefore that the decision as to the third item necessarily decides the fourth, and no accounting for such rents and profits should be had.

The trouble between mother and daughter arose over F. O. Weeks. He was active in this suit in the court below and furnished the bond on appeal. The daughter has transferred allegiance to her father. The acts of both father and daughter prior to the trouble between appellant and respondent in May, 1916, are inconsistent with the charges of appellant and testimony of F. O. Weeks. There is no special reason for equity to interfere and reduce the amount of property respondent retained in her divorce property settlement. The decree of the lower court is affirmed. BURNETT, J., concurs in the result.

(90 Or. 40)

plaintiff, and besides that, $735.90, but that prior to that month Hart had become and then was indebted to the defendant for money which he had collected for the city and had not paid, and for wood belonging to the city which he had converted to his own use, all in the sum of $779.52; and, lastly, that the New Amsterdam Casualty Company, as surety for Hart upon the bond which he executed and delivered to the defendant conditioned for a faithful performance of the contract, assumed the performance thereof on Hart's failure, and thereafter completed it with his consent, being thereby subrogated to his rights and assuming all his liabilities, and that the defendant has settled with the surety company for all matters, obligations, and rights arising under the contract. The new matter of the answer is denied by the reply, except that the plaintiff charges that some of the payments which the defendant applies to the March earnings were really for February services of Hart. The court made findings of fact to the purport that during March and April Hart had earned under the contract $2,041.16, all of which had been paid by the city to the plaintiff as his assignee, except $735.90, for which as a conclusion of law the court found that the plain

ASHLEY & RUMELIN, BANKERS, v. CITY tiff was entitled to judgment against the de

AGAINST ASSIGNED CAUSE OF ACTION. Plaintiff corporation, which secured assignment of sums due assignor under his contract with defendant city for hauling wood, was in no better position than assignor, and defendant I could counterclaim for sums collected for the city by assignor for wood sold by him, although defendant had exacted a bond from him in view of L. O. L. § 28.

fendant. Contending that there is no evidence to justify this result, the defendant appeals.

L. E. Latourette, of Portland (W. P. La Roche, City Atty., and Stanley Myers, both of Portland, on the brief), for appellant. W. S. Hufford, of Portland, for respondent.

BURNETT, J. (after stating the facts as above). Without dispute, the testimony discloses that Hart assigned to the plaintiff all Department 1. Appeal from Circuit Court, his March earnings, amounting to $1,613.97, Multnomah County; W. N. Gatens, Judge. and that the city paid to the plaintiff that Action by Ashley & Rumelin, Bankers, sum of money. It is uncontroverted, also, against the City of Portland. Judgment for that during the month of April he earned plaintiff, and defendant appeals. Reversed $187.30 which the city paid to the plaintiff.