charter, to realize the fund to pay for such improvement out of the property benefited. When, therefore, a city orders a local improvement, and enters into a contract for doing the work, containing a stipulation that the contractor will look for payment to the fund so realized, such stipulation does not absolve the city from the performance of its duty to put and keep in motion the machinery to obtain such fund, but the contract is based on the obligation of the city to perform its duty, in consideration of which the contractor stipulates to look for payment to the fund realized from its performance. So that, if a city fails to perform its duty, or, owing to its neglect or unreasonable delay, fails to obtain such fund, it is guilty of a breach of duty and is liable. The plaintiff's action rests upon this theory. We think the record discloses a case against the city of want of diligence and neglect in the performance of its duty, and therefore there was no error, and the judgment must be affirmed.

(24 Or. 158)

JENSEN v. FOSS et al. (Supreme Court of Oregon. June 26, 1893.) APPEAL-ASSIGNMENT OF ERRORS.

An assignment of error that covered the entire charge to the jury, without pointing out the particular error on which appellants rely for reversal, is too general, and will not be considered on appeal. Murray v. Murray, 6 Or. 17, and Swift v. Mulkey, 21 Pac. Rep. 871, 17 Or. 532, followed.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by A. E. L. Jensen against J. S. Foss and others for the conversion of certain personal property. From a judgment for plaintiff, defendants appeal. Affirmed. John H. Hall, for appellants. G. J. McGinn and J. F. Boothe, for respondent.

PER CURIAM. This was an action for the conversion of certain personal property alleged to belong to the plaintiff. The action was dismissed as to the defendants S. Hannum and Penumbra Kelly. The defendants Foss and Boscow denied the conversion, and alleged title in themselves. A jury trial was regularly had, and a verdict rendered in favor of the respondent for the sum of $800. Defendants moved for a new trial, and the court decided that the plaintiff should accept a judgment for $600, or a new trial would be ordered. The plaintiff accepted this amount, and judgment was rendered therefor, from which judgment this appeal has been taken.

The objection is that the notice of appeal does not state the errors upon which the defendants and appellants rely for a reversal of the judgment. The first error assigned is to the entire instruction of the court to the jury, and is too vague and general to notify the plaintiff of the particular issues to be

tried on the appeal. This objection falls directly within the rule laid down in Murray v. Murray, 6 Or. 17, and Swift v. Mulkey, 17 Or. 532, 21 Pac. Rep. 871.

The judgment must be affirmed.

QUINN v. GROSS.

(24 Or. 147)

(Supreme Court of Oregon. June 19, 1893.) PRINCIPAL AND AGENT SALE OF LAND BY ATTORNEY IN FACT - ACTION AGAINST EXECUTOR FOR PROCEEDS-STATUTE OF LIMITATIONS-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS.

1. Where a daughter gave her father a general power of attorney, authorizing him to sell and convey lands which she inherited from her mother, and manage the proceeds, without any restrictions whatever, and he sold the land 17 years prior to his death, without at any time notifying her of such fact, the daughter's claim against his estate for the proceeds of such sale is not barred by the statute of limitations, in the absence of any demand by her on her father for payment.

2. Where, in an action against the executor of such estate to establish such claim, it appears that, before the commencement thereof, plaintiff demanded the allowance of her claim, and that it was refused, and plaintiff shows, by documentary evidence, the agency and sale of her property by her father, she is entitled to recover, without her own testimony, in the absence of any evidence by defendant to show that the agency was terminated more than six years prior to the commencement of the action.

3. In such case it is not error to refuse to instruct that before the jury could find for plaintiff they must believe that deceased sold the lands, and kept the proceeds, and also that plaintiff did not know of the sale, and was prevented from getting knowledge of such sale by some wrongful act of deceased.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Mary Quinn against W. H. Gross, executor of the last will of Terence Quinn, deceased, to establish a claim against decedent's estate for the proceeds of plaintiff's land sold by deceased under power of attorney. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by MOORE, J.:

This is an action brought by the plaintiff against the defendant, as executor of the last will of Terence Quinn, deceased, to establish a claim of $7,000 against his estate. The record discloses the following facts: The plaintiff is the daughter of Terence Quinn and Mary Quinn, his wife. That on March 7, 1854, Mary died intestate, leaving plaintiff her sole surviving heir. That at the time of her death she was seised of certain real property in the city of Portland, which plaintiff inherited. That plaintiff's father kept her at school in California from the time she was six years old until she became of age, and that on December 26, 1871, and soon after attaining her majority, at her father's solicitation, she executed and delivered to him a general power of attorney, which authorized him to sell and convey

the real property which she had inherited from her mother, and manage the proceeds, without any restrictions whatever. That in 1874 plaintiff went from California to New York, where she remained until about September 1, 1890, when she came to Oregon. That her father on September 15, 1873, under the said power of attorney, in consideration of $7,000, sold and conveyed her real property to W. S. Ladd. That he died September 4, 1890, leaving a will wherein defendant was named as executor, and in which his property was devised to plaintiff, his sisters, and others. The plaintiff alleges that she was ignorant of her estate in Oregon, and relied upon her father for information, and that he, taking advantage of the confidence reposed in him by reason of their relationship, fraudulently kept her in ignorance of the condition of her property, and of his receiving any money on account of its sale, and fraudulently misinformed her concerning the facts, and that she only discovered the sale and receipt of the money by her father since his death, and hence failed to demand the same during his lifetime; that by reason of the said sale of her land, and conversion of the proceeds, said estate 'became indebted to her in the sum of $7,000; that on February 28, 1891, she duly presented her claim to the defendant for allowance, and that he rejected it. The defendant, for a separate answer, pleaded the statute of limitations, and that whatever money had been received by the testator was with the knowledge and consent of the plaintiff. The case was tried before a jury, which rendered a verdict in favor of plaintiff for the amount of her claim, and from the judgment thereon the defendant appeals, and assigns as error the failure of the court to sustain a motion for a nonsuit; to the admission of certain evidence; and to the giving and refusing to give certain instructions.

Wm. Foley, A. L. Frazer, and F. P. Mays, for appellant. W. W. Page, for respondent.

MOORE, J., (after stating the facts.) The appellant contends that the motion for a nonsuit should have been allowed, because -First, no case was made to prevent the statute from running; and, second, there was no competent evidence to establish plaintiff's claim.

It is a well-established principle of law that a cause of action against an agent does not accrue until demand is made. Busw. Lim. § 323. In Taylor v. Bates, 5 Cow. 376, it was held that an attorney was not liable to an action for money collected for another till demand made, or directions to remit, and that he was not in default till he received orders from his principal. In Leake v. Sutherland, 25 Ark. 219, it was held that the agent was not bound to account to the principal until a time fixed by the stipulations of his agency, or a demand made by the prin

cipal. It is the duty of an attorney or agent who has collected money on account of his client or principal to give notice, within a reasonable time, of the fact. Story, Ag. § 208. When the principal has received such notice he is bound to make demand of it within a reasonable time; and if he omits to do so he puts the statute in motion, and, when he suffers the time which it limits to expire without bringing suit, is concluded by his laches. Jett v. Hempstead, 25 Ark. 463. In State v. Sims, 76 Ind. 328, it was held that the principal's money in the agent's hands was, in the absence of any allegation of proof, presumed to have been lawfully collected, and that before it could be recovered from the agent a demand must have been made, which must be alleged and proved. If the money was unlawfully collected, however, no demand was necessary. A distinction seems to be made between general and special agents. If the agency be general or continuing, the statute would not commence to run until the termination of the agency; but if the agency were special, and related to special transactions, in regard to which the agent had received special authority, then the statute would begin to run from each transaction. Hopkins v. Hopkins, 53 Amer. Dec. 664.

Applying these rules to the case at bar, it appears that the plaintiff, by her power of attorney, appointed her father as her agent to dispose of her property in Oregon and elsewhere, and to manage and care for the proceeds thereof. This instrument, by its terms, made the testator the general agent of the plaintiff. The agency was a continuing one, and the statute would not commence to run until it was terminated, or until the agent had notified the principal that the proceeds of the sale of her property were at her disposal, and then, if she failed to demand them within the statutory period, her right of action would be barred.. The agency being general and continuing, the money received by the testator on account of the sale of plaintiff's land must, in the absence of proof of the termination of such agency, be considered as held by him for her use and benefit. The record shows that before this action was commenced the plaintiff had demanded the allowance of her claim, which had been denied, and this demand she alleges and proves. Section 1134, Hill's Code, provides that no claim which shall have been rejected shall be allowed by any court except upon competent evidence other than the testimony of the claimant. The record shows that plaintiff introduced in evidence copies of the following records: The United States patent to her mother, her power of attorney to her father, and the deed to W. S. Ladd. She then offered in evidence letters from her father to her, and testified that since the execution of the power of attorney he had sent her only $17. When the plaintiff had estab

lished the agency, and the sale of her property by the agent, she had made her case, and the burden then shifted to the defendant to show that the agency had been terminated more than six years prior to the commencement of the action. Jett v. Hempstead, supra. The defendant having offered no testimony upon that subject, it is clear that the plaintiff's claim was established by competent evidence without her testimony. The instruction of the court to the jury that "in general, when an agent has transacted business for his principal,-especially when he has received money belonging to his principal, he should make report of those facts at the earliest convenient time to the prin cipal, unless there is something in the agreement between them which excuses the agent from rendering such account; and at all events it is the duty of the agent, when a demand is made by the principal for an account, or for the payment of money received by him, to respond according to the nature of the demand, and if he fails to do so he cannot claim the benefit of the statute of limitations, unless the conduct of the principal may have been such as to excuse him. But, in order that the principal may be subject to the operation of the statute upon his claim, he must have had knowledge, either by direct notice from the agent, or by some other means, of the facts that the agent has received money, and holds it for his benefit," -clearly enunciates the law applicable to the case, and the refusal of the following instruction: "Before you can find for the plaintiff in this cause you must not only believe that the land was sold by Quinn, as alleged, and that he kept the purchase price, but you must also believe that the plaintiff did not know of such sale, as she alleged, and, further, that she was prevented from getting knowledge of such sale by some wrongful act done by Terence Quinn,"-asked by the defendant, was correct. The agency being a continuing one, plaintiff had a right to expect that, in case her property had been sold, the proceeds were being managed by her father for her benefit. The judgment of the court below will be affirmed.

(24 Or. 61)

STATE v. FOOT YOU. (Supreme Court of Oregon. June 19, 1893.) HOMICIDE-EVIDENCE-DYING DECLARATIONS

COMPETENCY.

1. The test to be applied to dying declarations to determine their admissibility is whether, if living, deceased would have been permitted to testify to the things contained in the declarations.

2. The first statement in a dying declaration was that "I was shot in the back, and could not see the man that shot me, but I caught a glimpse of him as I fell, and I think I would know him if I see him." Defendant was afterwards taken into deceased's presence, when the latter stated that he recognized him "as the man whom I first spoke to when I went into the saloon. he is the stout man I refer

to in my previous statement. I then turned, and walked away, and he shot me. I could see him as I fell. I fully recognize the man I just saw as the man whom I spoke to, and who afterwards shot me." Held, that such declaration was not objectionable as being the statement of the opinion of deceased, and was properly admitted in evidence on the trial of the person identified for murder.

On rehearing. Petition denied.

For report of decision on appeal, see 32 Pac. Rep. 1031.

BEAN, J. A petition for rehearing has been filed, in which it is claimed that the dying declarations of the deceased were inadmissible in evidence, because, as argued, they contain merely his opinion as to who did the shooting. The rule is well settled that dying declarations must relate to such facts only as the deceased would have been competent to testify to if sworn as a witness in the case, and not to mere matters of opinion. The test is whether, if living, the party making the declaration would have been permitted, if called as a witness on the trial, to have testified to those things contained in the declaration. Applying this rule to the case at hand, the evidence was clearly competent. The first statement of the deceased was: "I was shot in the back, and could not see the man that shot me, but I caught a glimpse of him as I fell, and I think that I would know him if I see him." On the following day, when the defendant was taken to the hospital for identification, the deceased, after seeing him, made another statement, in which he said: "I recognize the defendant, Don Foot, [Foot You,] as the man whom I first spoke to when I went into the saloon. He is the stout man I refer to in my previous statement. I then turned, and walked away, and he shot me. I could see him as I fell. I fully recognize the man I just saw as the man whom I spoke to, and who afterwards shot me." There is here no statement of an opinion as to who did the shooting. It is a positive. unqualified declaration of a fact to which deceased could have testified had he been living and called as a witness on the trial. The case of People v. Wasson, 65 Cal. 538. 4 Pac. Rep. 555, relied on in the support of the petition, is wholly unlike the case at bar. In that case the deceased did not see the defendant fire the shot, and did not pretend to know who it was that shot him, and his declaration was merely the expression of an opinion on the subject. Here the de ceased saw the man who shot him, and positively identified the defendant as the person who inflicted the fatal wound. Petition denied.

(24 Or. 160)

GIACHETTA v. MARQUAM. (Supreme Court of Oregon. June 27, 1893.) APPEAL-AFFIRMANCE OF JUDGMENT. Where appellant neglects to file a brief, and the court is unable from the record to dis

cover any error substantially affecting his rights, the judgment will be affirmed.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Fortunato Giachetta against U. S. G. Marquam to recover money. Judgment for plaintiff, and defendant appeals. Affirmed.

U. S. G. Marquam and R. P. Graham, for appellant. John Ditchburn, for respondent.

PER CURIAM. This was an action to recover money. The complaint charges that the defendant was employed by the plaintiff as an attorney at law to conduct a certain action for him, and that it was agreed that defendant should have as compensation for his services one-third of the amount recovered, which was the sum of $738.33; that defendant refused to pay plaintiff the balance due him, amounting to the sum of $417.22, after deducting the sum of $75 paid on behalf of plaintiff to Dr. Boies for medical treatment. The defendant, by his answer, admits the agreement, and that the sum of $738.33 was received in said action, but sets up as a defense a settlement with one Albert B. Ferrara by paying him $323.60 in full of all money due plaintiff, claiming that said Ferrara was the authorized agent and attorney of plaintiff. In his reply plaintiff denies that Albert B. Ferrara was his authorized agent or attorney, also any knowledge of the alleged payments. A trial was regularly had, and the jury returned a verdict in favor of the plaintiff and against the defendant for the sum of $417.20. It thus appears that the main question in the case was one of fact, which was for the jury to determine. When the case was called the appellant had not prepared his brief, and, although he was allowed five days in which to file one, he failed so to do. The entire instructions given by the court are in the record, and, taken as a whole, we think they correctly apply the law to the facts. We are unable from the record before us to discover any error substantially affecting the rights of appellant, and the judgment must be affirmed.

NEY'S LIEN-REMARKS BY COURT.

1. Defendant, an attorney, received money for which he gave a written receipt, reciting that it was received of W. for bail of L., to be returned to W. on final disposition of the charge. Held, on indictment for the crime of larceny by a bailee, in that defendant, after receiving back the money from the magistrate, converted it to his own use, that it was not varying the receipt by parol testimony to show. in proof of the allegation of the indictment, that the money belonged to another than W.

2. Though defendant had a claim for attorney's fees against the owner of the money intrusted to him to be used for bail, still, his agreement being to return it on receiving it

back from the magistrate, he would not have an attorney's lien on it.

3. A remark of the court, that it does not follow, because a woman is lewd, her veracity is affected thereby, is improper, as invading the province of the jury, who are the exclusive judges of the credibility of a witness.

Appeal from circuit court, Multnomah county; M. G. Munley, Judge.

John M. Lucas was convicted of the crime of larceny by bailee, and appeals. Re versed.

H. E. McGinn and A. F. Sears, for appellant. Geo. E. Chamberlain, Atty. Gen., and John H. Hall, for the State.

BEAN, J. The defendant, who is an attorney of this court, was indicted, tried, and convicted of the crime of larceny by bailee, on an indictment charging that on October 22, 1892, being the bailee of $300, lawful money of the United States, the personal property of one Ninta Parker, he felo niously embezzled and converted the same to his own use. It appears that some time in 1892 an information was made before a magistrate, charging Frank Lynch and Ninta Parker with the crime of adultery, and that defendant appeared for and represented Lynch, who alone was arrested. The preliminary examination resulted in his being held to await the action of the grand jury in the sum of $2,000, in default of which he was committed to jail. Through the efforts of the defendant, Lynch's bail was subsequently reduced to $300; but, being unable to secure a bail bond, the defendant called upon Miss Parker, and consulted her about furnishing the money to deposit in lien thereof, telling her that the bail had been reduced to $300. After some hesitation, Miss Parker finally agreed to furnish the money for such bail, and borrowed $300 of one Winser, which was delivered to the defendant, either by Miss Parker or Winser, both being present at the time,-for the purpose indicated; he giving to Winser the following instrument in writing, in acknowledgment thereof: "Portland, Ore gon, Aug. 23, 1892. Received of M. L. Winser $300 for bail, and for securing the discharge or release of Frank J. Lynch, charged with adultery; said bail money to be returned to said M. L. Winser upon final disposition of such charge. [Signed] John M. Lucas. George H. Thurston." After receiving the money the defendant repre sented to the committing magistrate and district attorney that it was impossible to raise more than $150 as bail for Lynch, and, with the consent of the district attorney, the bail was reduced to that amount, which was deposited by the defendant, and Lynch discharged, the defendant appropriating the remaining $150 to his own use. On the 29th of August the defendant procured and filed with the magistrate a bail bond, and received from him the money deposited in lieu thereof. Thereafter, but prior to the

date of the conversion alleged in the indictment, Miss Parker repaid to Winser the $300, and received from him an order directing the defendant to deliver to her the money placed in his hands to be used as a deposit in lieu of bail for Lynch. There are numerous assignments of error in the record, both in the admission and rejection of testimony, and in the giving and refusal of instructions by the trial court; but as we are of the opinion that the judgment must be reversed, and a new trial ordered, it is unnecessary to notice them in detail, and we will indicate our view only on questions likely to arise on another trial.

The indictment does not set out or allege the terms of the bailment under which defendant received possession of the money in question, nor was it necessary that it should. State v. Chew Muck You, 20 Or. 215, 25 Pac. Rep. 355. But the court, in charging the jury, after stating that among the material allegations of the indictment are (1) "that the money was put into the hands of the defendant as bailee, by Miss Parker, for a specific purpose," (2) "and that it was to be returned to her when the object of such trust was accomplished," and (3) "that the defendant bailee had failed to return the money, or account for it, according to the nature of his trust, and that he had wrongfully, and with felonious intent, converted the same to his own use," proceeded to say that if "the defendant, Lucas, received this money from Miss Parker upon the specific trust alleged in the indictment, to be returned to her when the purpose of the trust had been accomplished, and that the defendant had not accounted to Miss Parker for the money in accordance with the nature of the trust, and feloniously converted the same to his own use," etc., "you must find him guilty as charged." | Now, the indictment does not allege that the defendant received the money from Miss Parker, or that he ever agreed to return it to her; and the evidence, about which there is no dispute, shows that by the written agreement he was to return the money to Winser, and not to Miss Parker, and for a breach of this trust he is being prosecuted. The allegation that the property belonged to Miss Parker is a material averment in the indictment, and must be proven by the state before a conviction can be had, because it is descriptive of the offense charged; but if it did belong to her it is of no consequence, for the purpose of this prosecution, from whom the defendant received the money. The gravamen of the offense charged is that the defendant was in possession, as bailee, of certain money belonging to Miss Parker which he has unlawfully and feloniously converted to his own use; and it is of no consequence from whom he received the money, or with whom the contract of bailment was made, if in fact it was the property of Miss Parker,

and he has so converted it to his own use. "Within the meaning of the criminal law, a bailment," says Mr. Bishop, "is where one has personal property intrusted to him to be returned or delivered to another, in specie, when the object of the trust is accomplished." Bish. Crim. Law, § 857. When, therefore, the money was intrusted to the defendant by either Miss Parker or Winser, to be returned or delivered to Winser when the object of the trust should be accomplished, his undertaking included the duty of a bailee, and the object of this trust would be accomplished by the return of the money to Winser or his assignee after it had served the purpose for which it was intended; and yet, by the instruction, the jury were, in effect, told that, unless the defendant had accounted to Miss Parker for this money after the purpose of the trust upon which he received it had been accomplished, he should be convicted, and this notwithstanding the fact that by the terms of the contract of bailment he was to return the money to Winser.

It was contended by the defendant that the court erred in the admission of the testimony of Miss Parker and Winser, tending to show that the money belonged to Miss Parker. This objection is based upon the contention that because the contract of bailment was in writing, and between Winser and the defendant, it was not competent to show by parol that the money in fact belonged to Miss Parker. The rule is too well settled to require the citation of authorities that, as between the parties, parol evidence is not admissible to contradict or vary the terms of a written contract, but this rule has no application to the case in hand. This evidence does not in any way tend to contradict or vary the terms of the writing, but only to show the ownership of the subject-matter. The writing does not. purport to be a contract between the owner of the money and the defendant. simply acknowledges the receipt of it by the defendant from Winser, to be used for a special purpose, and to be returned to him when that purpose shall have been accomplished. It contains no statement as to the ownership of the money, and, even if it did, would not preclude the state from alleging and proving the name of the real owner. Although the ownership of the property and the fact of bailment are material, they are, in a certain sense incidental; the offense consisting in the unlawful and felonious conversion of the property or money by the defendant to his own use. The material subjects of inquiry on the trial were whether the money in fact belonged to Miss Parker, and, if so, whether the defendant feloniously converted it to his

own use.

It

The next question is whether the defendant, if employed by Miss Parker as attorney for either Lynch or herself, had a lien upon the money in question after the purpose for which he received it had been accomplished,