It fact, and not be so as a legal conclusion. [ court to decree them the priority to water If these claimants or their predecessors settled upon and purchased their respective lands and appropriated and diverted water from Canyon creek for the purpose of irrigating such lands, and subsequently agreed with the irrigation company to waive and relinquish their water rights in consideration of receiving similar rights from the reservoir and irrigation system, then and in that case the water rights from the irrigation system are merely a continuation of the original appropriation, and their priority should date from the original diversion and appropriation. In this respect, we think the court's legal conclusions were entirely erroneous. [6] It appears quite conclusively that the original appropriators of the waters of Canyon and Rattlesnake creeks prior to the construction of the reservoir system continued from year to year to divert and apply water from the stream in varying quantities up to the time that they had their agreement or understanding with the irrigation company and the construction of the first reservoir. The evidence, however, is extremely conflicting and uncertain as to the use or application of water subsequent to 1891, and on this point the court finds as follows: "That ever since the building of said reservoir, they have ceased to use any of said waters so previously owned or claimed by them from said Canyon or Rattlesnake creeks under said rights except at such times early in the spring when a larger quantity of water flows down Canyon creek than can be carried by the supply canal from said creek to said reservoir, and the only waters used by them or their predecessors in interest from said reservoir are such as they have acquired by use as renters or under conveyance of water rights by deed from the owners of such reservoir." If we were weighing the evidence in this case as a court of original jurisdiction, we are inclined to think we should find from the evidence in the record that some of these claimants have continued to receive and apply small quantities of water with sufficient frequency to entitle them to priorities for certain small portions of these tracts of land; but with the evidence conflicting as it is, and the trial court having found against the appellants, we do not feel justified in disturbing the findings and judgment in this respect. It must be admitted that the use of water under these appropriations or from the canal system since 1898 has been intermittent and infrequent and with apparently less purpose of applying it to a beneficial use than to keep alive if possible the appropriation and priority. We therefore conclude that the judgment should be affirmed as to this class of appellants. There are two other appellants, Smith and Moyses, who complain of the refusal of the for a 70-acre tract of land known as a part The record in this case is long and tedious, and we have been obliged to go through the entire record, and from such examination have reached the foregoing conclusions. The judgment should be affirmed as to all the appellants, and it is so ordered. Costs awarded in favor of respondents. STEWART, C. J., and SULLIVAN, J., concur. (61 Or. 403) MCDANIEL v. CHIARAMONTE. (Supreme Court of Oregon. March 19, 1912.) 1. CHATTEL MORTGAGES (§ 6*)-"CONDITIONAL SALE" OR MORTGAGE. A contract, binding a buyer to buy and providing that the seller shall retain title as unconditionally pay the price of a chattel, and security for the price, and on default he may take possession, is a conditional sale, and not a chattel mortgage; the term "conditional sale" applying to transactions where, by the terms of the contract, the possession of the goods is delivered to the buyer, but the property is to remain in the seller until payment solutely to pay the price. of the price, though the buyer is obligated ab [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41; Dec. Dig. § 6;* Sales, Cent. Dig. § 1332. vol. 2, pp. 1408-1410.] 2. SALES (8 454*)-CONTRACTS-INTENTION OF Whether a transaction is a conditional sale depends on the intention of the parties, gathered from the language of the contract. Dig. §§ 1324, 1325, 1333, 1334; Dec. Dig. § [Ed. Note.-For other cases, see Sales, Cent. 454.*] 3. CHATTEL MORTGAGES (§ 6*)-INSTRUMENTS CREATING. Where title, pursuant to a contract of sale. is created in favor of the seller for the price, passes to the buyer, and a lien on the chattels a chattel mortgage is created. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41; Dec. Dig. § 6;* Sales, Cent. Dig. § 1332.] 4. SALES (§ 479*)-CONTRACTS - BREACH REMEDY OF SELLER. er A contract of sale, providing that the sellshall retain title as security for deferred *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 122 P.-3 payments of the price, and that on default_of | payment on the 8th day of December, 1910, payment he may take possession and at his election declare all deferred payments due, gives to the seller, on the buyer's default, the right to retake the chattels and hold them subject to the contract, and subject to the obligation of. the buyer to pay the price; and he may sue in equity to enforce his rights against the buyer. [Ed. Note. For other cases, see Sales, Cent. Dig. 88 1418-1438; Dec. Dig. § 479.*] 5. PLEADING (§§ 8, 214*)-COMPLAINT-CON CLUSIONS. An allegation in a complaint that the contract relied on was intended to be and is a chattel mortgage is but an allegation of a legal conclusion, and is not admitted by demurrer. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 12-282, 525-534; Dec. Dig. $8 8, 214.*] 6. PLEADING (§ 214*) - Demurrer-ADMIS SIONS. A demurrer admits the facts pleaded. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge. Suit by N. M. McDaniel against Rosi Chiaramonte. From a decree for plaintiff, defendant appeals. Affirmed. and on the 8th day of January, 1911; and one hundred and fifty ($150) dollars on the 8th day of February, and on the 8th day of March, 1911, and two hundred ($200.00) dollars on the 8th day of each month thereafter until the whole amount is paid; deferred payments to bear interest at the rate of eight per cent. per annum to be paid monthly at the time of payment of each installment. And the second parties further agree to pay for and carry insurance on said automobile in the amount of twentyfive hundred ($2,500) dollars for the benefit of the first party as his interest may appear until the said automobile is fully paid for. And it is understood and agreed that the party of the first part shall retain the title to said automobile as security for the amount due him on said purchase price until the same shall be paid in full; and that failure of the second parties to pay any of said installments of principal or interest when the same shall fall due shall entitle the party of the first part, at his election, to declare the whole of said purchase price and all On October 8, 1910, plaintiff entered into said promissory notes given therefor due an agreement with defendant to sell her a and payable and proceed immediately for Witness our hands certain automobile for the price of $3,005.20, the collection thereof. of which defendant paid $700. in cash, $100 the day and year first above written. in ten days, and gave three promissory notes [Signed] N. M. McDaniel. Rosi Chiaraof that date for the balance of the price, monte. namely, one for $300, payable in monthly "Whereas the automobile mentioned in installments of $100 each, beginning Novem- the attached contract is being purchased ber 8, 1910; one for $300, payable in two in- by the parties of the second part for the stallments, namely, $150 on February 8, 1911, benefit of their son, Peter Chiaramonte, who and $150 on March 8, 1911; and one for is not yet of the age of majority; and where$1,605.20, payable in eight monthly install- as, Giuseppe Chiaramonte is at this time ments of $200.65 each, beginning April 8, absent from the city of Portland and can1911; each note providing for attorney's fees not sign said contract until his return: It in case of suit or action thereon. At the is understood and agreed that the said autime the agreement was made, and as a tomobile shall immediately be delivered into part of that transaction, plaintiff and de- the possession of said Peter Chiaramonte, fendant executed an agreement as follows: and that said Giuseppe Chiaramonte shall "Memorandum of Agreement, made this sign said contract and the promissory notes 8th day of October, 1910, between N. M. Mc- therein referred to immediately upon his Daniel, party of the first part, and Giuseppe return to the city of Portland. Otherwise Chiaramonte and Rosi Chiaramonte, his wife, the party of the first part shall be entitled parties of the second part, witnesseth: That to declare the whole of said purchase price the said party of the first part has agreed immediately due and reclaim the possession to sell and deliver to the parties of the of said machine; but, if the said notes second part one seven-passenger Rambler and contract are joined in by said Giuseppe 1910 automobile, model 55, complete, with Chiaramonte immediately upon his return one extra wheel, tube and tire, equipped with to the city of Portland, then the said Peter top, glass wind shield and speedometer, at the price of three thousand five and 20/100 ($3,005.20) dollars, which said price the parties of the second part promise and agree to pay as follows: Seven hundred ($700.00) dollars cash down, receipt whereof is hereby acknowledged; and the balance in installments in accordance with the terms of promissory notes of even date herewith, as follows: One hundred ($100) dollars within ten days, one hundred ($100.00) dollars on the 8th day of November, 1910, and a like Chiaramonte shall be entitled to the possession and use of said automobile until there shall be a default in the payments therefor; that upon such default the party of the first part shall be entitled to the immediate repossession thereof. Witness our hands the day and year first above written. [Signed] N. M. McDaniel. Rosi Chiaramonte." Upon default in payment of a part of the first promissory note, plaintiff took possession of the auto. Thereupon defendant brought an action against plaintiff to recover the sum of $950, the amount paid on the purchase price, and thereafter plaintiff brought this suit as a cross-bill to enjoin the law action and foreclose defendant's equity in the automobile. To the cross-bill, defendant filed a demurrer, which was overruled by the court, and a decree was rendered in plaintiff's favor, as prayed. Defendant appeals. M. B. Meacham (Albert B. Ferrera, on the brief), for appellant. A. H. Tanner and John Van Zante (Johnson & Van Zante, on the brief), for respondent. absolutely to pay the price. It was specified in the notes that the title was to remain in the seller until the price was fully paid, reserving the power to declare all notes due upon default as to one; and that the seller might repossess himself of the property, sell it, and apply the proceeds upon the notes and recover any balance due. It was held that the transaction was not a mortgage, but a conditional sale, and valid. See, also, Freed Furniture, etc., Co. v. Sorensen, 28 Utah, 419, 79 Pac. 564, 107 Am. St. Rep. 731, 3 Ann. Cas. 634; Frick v. Hilliard, 95 N. C. 117. [4] The difficulty in this case is not so much in ascertaining the character of the transaction as in determining what is the seller's remedy. It has been held in some cases that if the sale is on credit and the title to the property remains in the seller, upon breach of the conditions, he may have an election of two remedies: (1) He may treat it as an absolute sale and sue for the price, or (2) he may treat the sale as a nullity and retake the property; but that he cannot do both. See Sanders v. Newton, 140 Ala. 335, 37 South. 340, 1 Ann. Cas. 267, and note. EAKIN, C. J. (after stating the facts as above). [1] The first question relates to the character of the transaction as disclosed by the complaint, whether it is a conditional sale or a chattel mortgage. "The term 'conditional sale' is, however, commonly applied to a class of transactions where, by the terms of the contract, the possession of the goods is delivered to the buyer; but the property in them is to remain in the seller until the payment of the price." 35 Cyc. 652. The transaction is none the less a conditional sale, because the defendant is obligated absolutely to pay the price, as that is a conIn some forms of the conditional sale, this dition alike of absolute and conditional sales. statement is quite applicable; but in 1 Freed Furniture, etc., Co. v. Sorensen, 28 Mechem on Sales, § 615, it is said that the Utah, 419, 79 Pac. 564, 107 Am. St. Rep. seller has four remedies, namely: (1) He 731, 3 Ann. Cas. 637, and note; 35 Cyc. 654. may treat the contract as rescinded, upon [2] Here defendant agreed to buy and un- default of the buyer, and recover the goods. conditionally to pay the purchase price of In that event, that is his only remedy. (2) the machine. Plaintiff retained title to the He may treat the contract as in force, but machine as security for the payment of the broken by the buyer, and, if by the transpurchase price, and on default of payment action the buyer contracts to pay, the seller he was authorized to take possession, and may retake the goods and recover damages at his election declared all notes due and for the breach. (3) He may, if the buyer proceeded immediately for the collection agreed to pay the price, waive the return of thereof. This is, without doubt, a condition- the goods and sue for the price. (4) He al sale. The apparent diversity of utterance may, if the contract permits it, without reby the courts as to the effect of the reserva-scinding, take possession of the goods and tion of title by the seller is largely due to hold them as security for the fulfillment of the diversity in the form or terms of the the contract. This classification is cited sale. Whether the transaction is a condi- with approval in Herring-Marvin Co. v. tional sale depends, not upon the name given Smith, 43 Or. 321, 72 Pac. 704, 73 Pac. 340. to it by the parties, or the form of the instrument evidencing it, but upon the ruling intention of the parties, gathered from all language of the contract. 35 Cyc. 654; Henryford v. Davis, 102 U. S. 235, 244, 26 L. Ed. 160; Parke, etc., Co. v. White River L. Co., 101 Cal. 37, 39, 35 Pac. 442; Hamilton v. Highlands, 144 N. C. 279, 56 S. E. 929, 12 Ann. Cas. 876. 25 [3] If the title to the property remains in the seller, then the transaction is not a mortgage. In case of mortgage, the title passes to the buyer, and a lien on the property is created in favor of the seller. Cyc. 652-654, 658, 659; 6 A. & E. Ency. 446. In the case of Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. Ed. 285, an appeal from Utah, there was an agreement to sell certain goods; the buyer undertaking The case before us comes clearly within the fourth remedy, as the contract provides that the seller shall retain the title as security for the payment of the price. In discussing the remedies in such a case, it is stated in 1 Mechem, Sales, §§ 621-623, that by retaking the goods the seller does not in effect rescind the contract, but holds the property still subject to the contract; and the buyer is not thereby excused from performance. See, also, Tufts v. D'Arcambal, 85 Mich. 185, 48 N. W. 497, 12 L. R. A. 446, 24 Am. St. Rep. 79; Latham v. Sumner, 89 III. 233, 31 Am. Rep. 79; Dederick v. Wolfe, 68 Miss. 500, 9 South, 350, 24 Am. St. Rep. 283. The only contention of defendant is that plaintiff has a complete remedy at law; and therefore there is no jurisdiction in equity. But, as we have seen, plaintiff retained the UDICE. title to the automobile as security for the [2. TRIAL (§ 127*)-EVIDENCE-REVIEW-PREJ. price. When he repossessed himself of the goods, he did not thereby make the property his own. Defendant still had an equitable interest therein to the extent of the purchase price paid, namely, $951.25, and that interest cannot be cut off by the act of the seller retaking possession; but the buyer can be protected best in equity. It is not necessary here to determine whether or not plaintiff can sell the property at public or private sale, as he may see fit, as there is no provision made in the instrument for the manner of terminating defendant's equity. In Foundry Co. v. Pascagoula Ice Company, 72 Miss. 608, 615, 18 South. 364, it is said that the reservation of the title is but as security for the purchase price, and if the property is recovered by the seller he must deal with it as security and with reference to the equitable right of the purchaser; and that the jurisdiction of chancery to enforce conventional liens is too well recognized to require argument or the citation of authorities. In Campbell Print. Press Co. v. Powell, 78 Tex. 53, 63, 14 S. W. 245, where the title to goods was retained by the seller, it was held that the seller was entitled to a decree for the sale of the property; and in Re National Cash Register Company, 174 Fed. 579, 582, 98 C. C. A. 425, it is said that, if the seller treats the title to the property, reserved by the contract, as security for the payment of the price, he may file his bill in equity to obtain a judicial sale. By that course, the equity of the buyer was protected by the conscience of the court and its power of control over the sale. That the seller had the right to proceed in that manner the court thinks cannot be doubted, and we think that the plaintiff was properly in the equity court. [5, 6] By the complaint in this case, plaintiff alleged that the agreement was intended to be and is a chattel mortgage. As is well said in defendant's brief, this is but an allegation of a conclusion of law. The facts are fully set forth which, for the purpose of this demurrer, are admitted and disclose the transaction to be a conditional sale, the title being retained by plaintiff as security until the purchase price is paid; and the relief prayed for can well be granted upon those facts. The decree is affirmed. (61 Or. 527) TUOHY v. COLUMBIA STEEL CO. (Supreme Court of Oregon. March 19, 1912.) 1. TRIAL (§ 127*)-MISCONDUCT OF COUNSEL -ATTEMPT TO GET INADMISSIBLE MATTER BEFORE JURY-INSURANCE. A willful attempt by plaintiff in a personal injury case to show that defendant is protected by insurance is reversible error. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 275; Dec. Dig. § 127.*] In an action for injuries to a servant, an attorney employed by the firm conducting the defense testified in defendant's behalf, and on cross-examination was asked if he was not active in assisting in procuring the facts in cases in which his firm was interested. He testified that that was part of his duty, but that about three-fourths of his time was taken up with other classes of work, when he was asked whether it was not in cases in which the clients were protected by insurance, to which question an objection was sustained. Held, that the question asked in the manner it was, and under the existing circumstances, was not calculated to excite prejudice against defendant, and was therefore not reversible error. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 275; Dec. Dig. § 127.*] 3. EVIDENCE (§ 116*)—INJURIES TO SERVANT -EVIDENCE. Plaintiff, a servant, claimed that his eye was destroyed by a piece of tool steel flying into it, while the theory of the defense was that the metal was from a manganese casting, and not from the tool, and that such a substance could not be attracted by a magnet. The piece of steel presented by plaintiff and which his testimony tended to show was the identical one extracted from his eye was readily attracted by a common magnet, while a physician testified that he applied the steel in plaintiff's eye to a large electric magnet, and it was not attracted thereby. There was other evidence that pieces of manganese steel were attracted by a common magnet. Held, that a question as to the effect on an electric magnet of the disconnection of the current, which the witness answered by saying that the magnet would not attract if the current was disconnected, was not error. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 134, 135; Dec. Dig. § 116.*] 4. DAMAGES (§ 43*)-INJURIES TO SERVANTELEMENTS OF DAMAGES-MEDICAL SERVICES -REASONABLENESS. An injured servant may not recover expenses for medicines and medical treatment in the absence of proof that the charges were reasonable. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 242-254; Dec. Dig. § 43.*] 5. APPEAL AND ERROR (§ 1171*)—ReviEW— AMOUNT OF DAMAGES-REVERSAL. A judgment for damages for personal injuries would not be reversed for an erroneous submission of expenses for medicines and medical treatment, where the amounts claimed therefor were definite, and could easily be separated from the rest of the recovery. Error. Cent. Dig. §§ 4546-4554; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 1171.*] 6. DAMAGES (§ 132*)-EXCESSIVENESS-Per SONAL INJURIES. Plaintiff, a foreman, in the molding department of defendant's machine shop, earning $175 per month, was injured by a piece of tool steel striking him in the eye. He lost that eye, and suffered a sympathetic impairment of sight in the other. He also lost two months' time, suffered intense pain, but was subsequently employed by another corporation at the same labor and for the same salary. Held, that a verdict for $11,300, sustained by the trial court, would not be set aside on appeal as excessive, except to the extent of $950 allowed for medicines and medical services which he was not entitled to recover under the evidence; the question of excessive damages being solely for the trial court, and its refusal to | set aside the verdict on that ground not to be reviewed. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.* While W. E. Farrell, an attorney employed by the legal firm conducting the defense, was upon the witness stand in behalf of defendant, the following questions were asked on cross-examination: "Q. And you are, of course, active in assisting in procuring the facts in the cases in which his firm are inAction by John Tuohy against the Colum-terested, are you not? A. Occasionally that bia Steel Company. Judgment for plaintiff, is a part of my duty. Q. Isn't it your duty and defendant appeals. Affirmed on condition. Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge. This is an action to recover for personal injuries, resulting from the loss of an eye, sustained by plaintiff while working as a foreman in the molding department of defendant's machine shop. Plaintiff's evidence tends to show that at the time of the accident he was engaged in making a thermite weld, the processes of making it being unnecessary to describe, upon a defective casting. In the prosecution of this work, it was necessary to have a piece cut off of a tenpenny iron spike, and plaintiff asked an operator in an adjoining department to cut the spike with a pneumatic chisel. The spike was laid upon a casting, plaintiff holding one end of it to keep it in place, and, when the necessary power was applied, the chisel, by reason of its defective quality -it being too hard or too brittle-broke or splintered near the point, and a piece of the steel became imbedded in plaintiff's eye in such a position that it was impossible to discover or extract it, and, after suffering great pain and inconvenience for about a year, plaintiff was compelled to have the eyeball removed. The evidence also tends to show that the chisels were manufactured in defendant's blacksmith shop, which was connected with the works, and that previous to the accident repeated complaints by employés had been made to defendant's superintendent that they were too hard and of poor quality, but that no action was taken to require them to be properly constructed or tempered. The testimony on behalf of defendant tends to show that the injury did not occur while a spike was being cut at the request of plaintiff, but, on the contrary, that plaintiff had requested the person operating the chisel to chip off a piece of manganese steel from a casting of that substance as a test of its hardness, and that the manganese steel, being harder and more brittle than ordinary steel, splintered and a piece struck him in the eye, causing the injury. It is also contended that he was guilty of contributory negligence in standing too near the chisel, when the power was applied, without protecting his eyes by goggles. At the time of his injury plaintiff was earning $175 per month, and he lost over two months' time. Afterwards he was employed by another corporation at the same labor for the same salary. The evidence tends to show that the remaining eye is sympathetically affected, and is not so strong as it was before the injury. always? A. No; that constitutes a very small part of my work, Mr. Idleman. Q. I mean the class of cases such as we have here? A. My duty? Q. Yes. A. What distinguishment do you make between the class of cases here and the balance of the work? I presume three-quarters of the time is in other classes of work. This forms but a very small part of it. Q. Well, what I am trying to get at is whether it is in cases in which the clients are protected by insurance." To negative the claim that the foreign substance extracted from plaintiff's eye was a splinter from a steel chisel, defendant showed by Dr. Connell that he applied it to a large electric magnet, and that it was not attracted thereby, whereas the piece introduced in evidence and shown to the jury was readily attracted by a small magnet. Another witness, shown to be familiar with the magnet used by Dr. Connell, was asked, over objection of defendant's counsel, what would be the effect on an electric magnet if it should get out of order or the current should not be connected, and he testified that in such a case the magnet would not attract. It is claimed that the admission of this testimony was error. No evidence was introduced as to the reasonable value of the medical and surgical services rendered to plaintiff, and the court was requested to withdraw this part of plaintiff's case from the jury, but refused to do so. The jury returned a verdict for $11,300. A motion to set aside the verdict as excessive was overruled, and plaintiff had judgment. Defendant appeals. R. W. Wilbur and I. D. Hunt (Wilbur & Spencer and Williams, Wood & Linthicum, on the brief), for appellant. C. M. Idleman, for respondent. MCBRIDE, J. (after stating the facts as above). [1, 2] It has been frequently held. that a willful attempt by a plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. The ground for this holding, is that a knowledge that the defendant has such protection might have a tendency to render jurors careless as to the amount of the verdict. But the rule is not universal. In the case at bar the witness was an attorney, and the fact that as such and acting for an insurance company he had procured a statement from a prospective witness in re For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes |