tax of 191⁄2 mills on the dollar upon all the taxable property in the county, the amount of taxes properly chargeable to their property is easily ascertained; that, this being so, the plaintiffs had failed to bring themselves within the rule entitling them to the relief sought, because they have not paid or tendered the amount of such taxes, which, upon their own showing, is justly chargeable against their property.

Mr. High says: "It may be laid down as a general rule that equity will not interfere by injunction with the collection of a tax which is alleged to be illegal or void merely because of its illegality, hardship, or irregularity, but there must be some special circumstances attending the threatened injury to distinguish it from a mere trespass, and thus to bring the case within some recognized head of equity jurisprudence; otherwise, the person aggrieved will be left to his remedy at law." 1 High, Inj. § 485. And, again: "Nor will equity interfere by injunction with the enforcement or collection of taxes because of irregularities, illegalities, or errors in the assessment of the tax, or in the proceedings incident to its collection, or in the execution of the power conferred upon taxing officers; but in all such cases the taxpayer seeking relief will be left to pursue his remedy at law. And where it does not appear that the established principle of taxation has been violated, or that actual and substantial injustice will result from the operation of the tax, or that it was for an unauthorized purpose, equity will not restrain the execution of a deed of land sold for taxes on the ground that the proceedings were irregular, or even void in some particulars." Id. § 486. In Bank v. Kimball, 103 U. S. 732, Mr. Justice Miller said: "We have announced more than once that it is the established rule of this court that no one can be permitted to go into a court of equity to enjoin the collection of a tax until he has shown himself entitled to the aid of the court by paying so much of the tax assessed against him as it can be plainly seen he ought to pay; that he shall not be permitted, because his tax is in excess of what is just and lawful, to screen himself from paying any tax at all until the precise amount which he ought to pay is ascertained by a court of equity; and that the owner of property liable to taxation is bound to contribute his lawful share to the current expenses of government, and cannot throw that share on others while he engages in an expensive and protracted litigation to ascertain that the amount which he is assessed is or is not a few dollars more than it ought to be; but that, before he asks this exact and scrupulous justice, he must first do equity by paying so much as it is clear he ought to pay, and contest and delay only the remainder." State Railroad Tax Cases, 92 U. S. 575; Huntington v. Palmer, 7 Sawy. 355, 8 Fed. Rep. 449. In stating the rule pertaining to the interference of

equity with tax proceedings, Caton, C. J., said: "They are confined almost, if not entirely, to cases where the tax itself is not authorized by law, or, if the tax itself is authorized, it is assessed upon property not subject to the tax." Railroad v. Frary, 22 Ill. 34. In Mining Co. v. Auditor General, 37 Mich. 391, the court says: "Equity will not interfere to restrain the collection of the public revenue for mere irregularities. Either it should appear that the property is exempt from taxation, or that the levy is without legal power, or that the persons imposing it were unauthorized, or that they have proceeded fraudulently." Other authorities might be cited to the same effect, but these are sufficient to illustrate the principle of noninterference, in tax proceedings established by courts of equity. Upon the other hand, it must be admitted there are authorities of great weight and respectability opposed to the doctrine announced in such cases. They are cited and referred to by Mr. High, who says: "The decisions are neither few in number, nor wanting in respectability, which have inclined to a departure from the doctrine of noninterference in equity with the collection of taxes; and it will be found, as we proceed, that the courts have in many instances extended preventive relief by injunction against the exercise of the taxing power in cases where such relief was unwarranted, either upon principle or upon the clear weight of authority." 1 High, Inj. § 484; Cooley, Tax'n, 536 et seq. In view of the authorities, the considerations which influenced a court of equity to restrain the collection of a tax are confined to cases where the tax itself is not authorized, or, if it is, that such tax is assessed upon property not subject to taxation, or that the persons imposing it were without authority in the premises, or that they have proceeded fraudulently. Nor is this all. The plaintiff must, in addition to illegality, hardship, and irregularity, bring his case within some of the recognized foundations of equity jurisprudence, and observe the maxim that "he who seeks equity at the hands of a court must first do equity," by paying or tendering the amount of taxes properly chargeable against his property. The rule is founded upon the principle that public policy requires that the revenues should be promptly collected by the agencies established by law for that purpose, and that equity should not interfere with tax proceedings, because they are faulty or illegal, when no wrong results to the taxpayer by requiring him to pay what is conceded to be due. In such case a court of equity will not enjoin, as Mr. Justice Miller said, "the collection of the whole tax, when it is obvious that in justice a large part of it should be paid, and, if not paid, that the complainants escape taxation altogether." State Railroad Tax Cases, supra. Applying these principles to the case at bar, we find

that the plaintiffs have alleged and specified in their complaint the true cash value of their property liable to taxation, thus showing the excess in its valuation which they would have asked the board to remit, and disclosing on the face of their complaint the amount of taxes chargeable to their property which they concede it is liable for. In view of these admissions, and the duty incumbent on the owners of property liable to taxation to contribute their lawful share of the public expenses, we cannot see why plaintiffs should not pay so much of the taxes assessed as are admitted to be due, and can plainly be seen they ought to pay. Is it just or equitable that they should pay nothing because their assessment is too high when they concede an amount for which their property is liable? If the board had sat, and an opportunity had been afforded them to appear and secure the remission of the excess, they would have been bound to pay the amounts chargeable against their property as corrected. Why, then, should they not pay so much of the taxes assessed as they concede liability for. before they ask the aid of a court of equity to be relieved of the excess? The court thinks that, notwithstanding the irregularities in the proceedings, and the failure of the board of equalization to hold its session at the time prescribed by law, by reason where of the plaintiffs were deprived of an opportunity to be heard, and secure the remission of the excess in the valuation of their property, which constitutes their grievance, they ought, nevertheless, to pay what is conceded to be due before the injunction should be granted. The decree is therefore affirmed.

(24 Or. 338)

KANE v. RIPPEY et al. (Supreme Court of Oregon. July 24, 1893.) VENDOR AND VENDEE ABSTRACT OF Title.

A vendor's contract to furnish an abstract of title "showing a good and clear title, free from defects," is not performed if the abstract show defects which may or may not exist in the title as tested by the original records, and an incumbrance which may or may not be barred by limitation.

Appeal from circuit court, Jackson county; W. C. Hale, Judge.

Action by E. C. Kane against Charles G. Rippey and Frank Amy to recover money paid on a contract for the sale of land. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.

For former reports of the case, see 23 Pac. Rep. 180; 29 Pac. Rep. 1005.

P. P. Prim, for appellants. W. M. Colvig, for respondent.

LORD, C. J. This is an action to recover money. The facts are, in substance, that the defendants made a contract with the plaintiff to sell him certain lands, and that they received $500 on the purchase price; that, by

the terms of the contract, they were to furnish plaintiff with an abstract of title showing a good and clear title, free from defects, before he should make the next payment on the purchase price; that the defendants furnished an abstract, but not one showing a good title, free from defects; that the plaintiff tendered the defendants the balance of the purchase price, and demanded a compliance with their contract, which they failed and refused to do. On the trial the plaintiff offered in evidence the abstract of title which had been given to him by the defendants, and upon which he justifies his refusal to complete the purchase, claiming that it showed a defective title. The instruction of the court to the jury was to the effect that the abstract showed the title to be legally defective. The contention for the defendants is that the abstract showed a good title, and one free from defects, and hence that the instruction was error.

This makes no less than three times that this cause has been before us. Kane v. Rippey, 22 Or. 296, 23 Pac. Rep. 180; Id., 22 Or. 299, 29 Pac. Rep. 1005. On the first appeal the bill of exceptions disclosed the fact that, when the plaintiff offered in evidence the abstract of title, the trial court refused to admit it, on the ground that it was not the proper evidence of title, but that the records or original conveyances were the only legal proof of title admissible. In the course of its opinion, this court said: "The plaintiff was endeavoring to show, not that the abstract conveyed title, but that the abstract of such title furnished the plaintiff by the defendants did not exhibit the 'good title, free from incumbrances,' that the defendants had agreed to convey. His position, in substance and effect, was that the defendants had agreed by their contract to assure him a good title, and to furnish him an abstract thereof from which its validity and marketable quality might be ascertained and determined; but that the abstract furnished him by them for this purpose, and which the plaintiff offered in evidence, and the court rejected, showed that the title was defective, or not such as would be in accordance with the terms of such contract." Whether or

not the abstract disclosed such title as the defendant agreed to convey the court refused to determine, saying that "the abstract is not before us for that purpose, but only to show its object as applied to the contract," and then adds: "When, therefore, the abstract was offered in evidence, it was not for the purpose of proving title by the abstract, but of showing that the abstract furnished did not disclose evidence of such title as the defendants had agreed to convey. It results that we think the abstract was admissible for the purpose offered, and that it was error to exclude it." Hence the judgment was reversed, and a new trial ordered. When the case came on to be heard the second time, by consent of the parties the trial was had

before the court, and without the intervention of a jury. The abstract was admitted in evidence, and the court ruled that it did not disclose any legal defects, or, as we must take it, in the light of the former opinion, that the abstract showed a good fee-simple title, free from incumbrances, such as the defendants agreed to convey. As a consequence, the court found that the plaintiff was not entitled to recover in the action, and rendered judgment in favor of the defendants for their costs and disbursements, from which judgment the plaintiff again appealed.

It thus appears that the ruling of the trial court which was relied upon as error on the second appeal presented the same question as the instruction which is relied upon as error on this appeal. Nor do we understand that counsel controvert this proposition, but they claim that the court failed to pass upon it, and hence the question is still open for decision. While, as a matter of fact, the court did determine that the abstract furnished did not disclose such title as the defendants had agreed to convey, the opinion does not directly so declare; yet it follows as a consequence, and is so announced. It is, as the court says, "for that reason, and because the findings of fact are defective, that the judgment is reversed." The de cision, then, upon that point, is the law of the case, and is conclusive upon the parties and the court. It may be true that the title, tested by the original record and conveyances and other facts not upon the face of the abstract, is good and free from defects. It may be true that the curative acts will obviate the objections suggested, and the statute of limitations bars the uncanceled incumbrance, but these are matters which may involve litigation or judicial inquiry to determine the validity of title. The title, as disclosed by the abstract, is not the good title the defendants agreed to convey. The Judgment must be affirmed.

(24 Or. 440)

DOWELL et al. v. APPLEGATE et al. (Supreme Court of Oregon. July 31, 1893.) QUIETING TITLE-EVIDENCE-RES JUDICATA.

1. In an action to quiet title, it appeared that the ownership of part of the land in controversy had been adjudged to be in defendant in a former action between the same parties. Held, that such judgment was res judicata as to this tract.

2. In an action to quiet title, plaintiff claimed under a decree of a federal court. From the record of the cause, it affirmatively appeared that the controversy was wholly between citizens of the same state, and that no federal question was involved. Held, that the decree was void, in that the court had no jurisdiction, and plaintiff could not recover.

Appeal from circuit court, Douglas county; M. L. Pipes, Judge.

Action by B. F. Dowell and another against Daniel W. Applegate and others to quiet title. From a judgment for defendants, plaintiffs appeal. Affirmed.

A. M. Crawford and E. B. Preble, for appellants. J. W. Hamilton, for respondents.

PER CURIAM. This is a suit to quiet title to certain real estate in Douglas county, formerly belonging to Jesse Applegate. Passing without notice all preliminary and incidental questions, and coming directly to the merits, it appears:

1. That the title to the 46-acre tract of land under which plainturs now claim was in controversy between the same parties in the case of Applegate v. Dowell, reported in 15 Or. 513, 16 Pac. Rep. 651, and 17 Or. 299, 20 Pac. Rep. 429, and was there adjudged to belong to the defendants; and the question is therefore res adjudicata in this case.

2. Plaintiffs' title to the remainder of the land depends upon the validity of a decree of the United States circuit court for the district of Oregon, rendered in the suit of B. F. Dowell v. Jesse Applegate et al., brought to set aside certain conveyances for fraud. From the record of that case in evidence it affirmatively appears to have been a controversy wholly between citizens of this state, and involving no question arising under the laws of the United States, and therefore, in our opinion, the court was without jurisdiction, and the decree is void. It follows that the decree of the court below must be affirmed

(13 Mont. 235)

KRIEGER et al. v. SMITH. (Supreme Court of Montana. July 17, 1893.) HUSBAND AND WIFE-PURCHASES BY WIFE. Defendant "Please wrote plaintiffs: don't let my wife run any bills unless accompanied by my order. Don't tell her you are forbidden. Tell her you must have my order, or would prefer it." Thereafter defendant and his wife were in plaintiff's store, where the wife bought a large bill or goods, not necessaries. They were both looking at the goods, and his wife called defendant's attention to some she was buying. About the same time he gave her a check which was paid on the bill. The goods were delivered at defendant's residence at C., where his wife lived, and he part of the time, and where he afterwards saw some of the goods. Defendant never objected to the purchase, nor offered to return anything. He was a man of some means, and his wife had no separate estate or business. Held, that he was estopped to deny her right to bay the goods.

Appeal from district court, Park county; Frank Henry, Judge.

Action by F. A. Krieger and others, trading as Krieger & Co., against W. A. Smith, for the price of goods sold and delivered. Judgment for plaintiffs. Defendant appeals.

Savage & Day, for appellant. A. P. Stark and A. J. Campbell, for respondents.

PEMBERTON, C. J. Respondents (plaintiffs below) received judgment in the court below against the appellant (defendant below) for goods, wares, and merchandise purchased by appellant's wife, and charged to appellant. From this judgment, and the

order of the trial court refusing a new trial, this appeal is prosecuted. It appears from the evidence that respondents are merchants at Livingston; that appellant had purchased goods of them for some years, and that his wife had also done so, having the goods she purchased charged to appellant; that appellant, becoming dissatisfied with the purchasing of goods by his wife, and having them charged to him, gave to respondents the following notice in writing concerning the matter: "Krieger & Co., Livingston, Montana. Sirs: Please don't let my wife run any bills unless accompanied by my order. Don't tell her you are forbidden. Tell her you must have my order, or would prefer it, and oblige, Yours, W. A. Smith." This notice was given in January, 1890. About May 1, 1890, the appellant, with his wife, visited the place of business of respondents; at least appellant and his wife were together in the store of respondents at that time, for two or three days, during which time the wife purchased of respondents a considerable bill of goods, (the goods sued for in this action.) The evidence tends to show that they were both looking at and examining the goods being purchased by the wife; that the wife called appellant's attention to some of the goods she was selecting and purchasing; that appellant gave his wife during the time a $50 check; that nothing was said between respondents and appellant at the time about the wife's right to purchase goods and have them charged to appellant; that the wife partially paid on the goods, the whole thereof being charged to the appellant. The goods were afterwards delivered at the residence of appellant at Castle, where it seems the wife generally lived, the appellant spending most of his time at Black Hawk, where he was engaged in business, and had another home. The appellant and his wife were not living separate and apart. He spent a part of his time with her at their home in Castle. It does not appear that the wife had any separate estate or business of her own. The appellant saw some of the goods at his home in Castle when he was there, he testifying that he "stayed there off and on during the summer." The appellant never returned, or offered to return, the goods, or any of them, either before or after he knew they had been charged to him. The appellant made no inquiry of his wife at the time he saw her purchasing the goods, or at any other time, as to how they were to be paid for, or as to whom they were to be charged. He testifies that he notified his wife of the notice given respondents, quoted above. It is not contended that these goods were necessaries furnished the wife. The appellant is a man of considerable wealth. The case was tried with a jury, and verdict rendered for the amount sued for in favor of respondents. The appellant contends that the presumptive agency of the wife to procure such articles as are usual and proper for her,

according to the financial condition of her husband, was terminated and revoked by the notice offered in evidence, and quoted above. That her authority "is purely and simply a question of agency, which rests upon the same considerations which control the creation and existence of the relation of principal and agent between other persons. The ordinary rules as to actual and ostensible agency must be applied. To hold the husband liable, there must have been some affirmative proof of authority from him, either express or implied, from his acts and conduct," and cites in support of his position the following authorities: Bergh v. Warner, (Minn.) 50 N. W. Rep. 77; 9 Amer. & Eng. Enc. Law, p. 839, § 3; 1 Bish. Mar. & Div. §§ 556, 558; Mackinley v. McGregor, 3 Whart. 369; Keller v. Phillips, 39 N. Y. 351; Benjamin v. Benjamin, 15 Conn. 347.

But in this case was there no authority in the wife to purchase these goods on the credit of the husband, reasonably "implied from his acts and conduct?" Here, as shown by the evidence, is a husband and wife living pleasantly together. She has no separate estate or business. He is present, seeing her purchase, and, as the evidence tends to show, being by her consulted as to the purchase of a large bill of goods. He offers no protest or objection. He gives her his check to assist in making payment, and all this in the presence of the persons to whom he has given notice not to permit her to buy goods on his account without his order, she knowing of such notice having been given. Can no authority be implied from these acts, and this conduct on the part of the husband? Was the wife not justified, and were respondents not authorized, to presume authority in the wife from such acts and conduct of the husband? Were the presence and these acts and conduct of the appellant not equivalent to an order from him? We think so. We think, under the circumstances of this case, the appellant is estopped from questioning the authority of his wife to purchase these goods. We think this holding is decisive of this case. There are other assignments of error; but, from an inspection of the whole record, we are unable to discover any errors that prejudice the appellant. We think the case was tried and determined on its merits, and that the result should not be disturbed. The judgment and order appealed from are affirmed.

(13 Mont. 226) SCHUTTLER et al. v. KING. (Supreme Court of Montana. July 17, 1893.) NEGOTIABLE INSTRUMENTS-PLEADING.

Under Code Civil Proc. § 85, requiring a complaint to contain "a statement of the facts constituting the cause of action in ordinary and concise language," a complaint averring that, on a certain date, defendant, for a valuable consideration, executed and delivered to plaintiffs his note of that date for the sum of $679.74, due

at a certain date now past, with interest, etc.; that there is due and unpaid from defendant the sum of $977.47 to this date; and that plaintiffs are now the owners of the note,-is not bad for failure to aver that defendant ever made any promise to pay any money to plaintiffs, nor any facts implying such a promise, nor when, according to such promise, payment should be made.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Peter Schuttler and Christopher Hotz, trading as Schuttler & Hotz, against John R. King, on a promissory note. Judgment for plaintiffs. Defendant appeals. Thomas C. Bach, for appellant. Wade & Blackford, for respondents.

PEMBERTON, C. J. This is a suit on a promissory note alleged to be lost. The allegations of the complaint, omitting the formal parts, are as follows: "That on the 22d day of January, 1885, the said defendant, J. R. King, and Wheatly Bros., of Bozeman, Mont., for a valuable consideration, executed and delivered to the said Schuttler & Hotz, as such partners, their certain promissory note of that date, for the sum of six hundred and seventy-nine and seventy-four hundredths dollars, ($679.74,) due on the 13th day of September, 1885, together with interest after maturity at the rate of 10% per annum; that on the 3d day of January, 1887, the said J. R. King paid on said note the sum of $91.69; that no other sum or amount has been paid on said note, and that there is now due and unpaid on the same, from said defendant King, the sum of nine hundred and seventy-seven and forty-seven hundredths dollars, ($977.47,) principal and interest to this 6th day of July, 1891; that the said plaintiffs are now the owners of said note, and entitled to receive the money due and unpaid thereon; that said plaintiffs, or either of them, have not indorsed or transferred said note, but that the same since its maturity has been lost." The appellant (defendant below) was personally served with summons in this case, but made no appearance of any kind. Judgment was entered against him, in accordance with the prayer of the complaint, on the 6th day of July, 1891. On the 4th day of June, 1892, this appeal was taken from the judgment.

The contention of the appellant is that the complaint does not state facts sufficient to constitute a cause of action or to sustain a judgment. The appellant especially contends that the complaint does not contain any of the following facts, each of which he claims the complaint should aver: "That the defendant ever made any promise to pay any sum of money, or any facts from which such a promise is by law implied. The complaint does not show by any statement of fact any promise in fact or promise by implication to pay to plaintiffs or either of them any money. The complaint does not contain any statement of fact showing when,

In

according to defendant's promise, payment should be made; that is to say, there is no statement of a breach of the contract." Hook v. White, 36 Cal. 299, in a case similar to the one under consideration, the court says: "The allegation in the complaint 'that said defendant executed to this plaintiff a promissory note' is equivalent to an allegation that defendant made his note payable to plaintiff;' and an allegation that defendant executed to plaintiff his note in writing, or made his note in writing payable to plaintiff, includes and imports a delivery of the same to plaintiff. Churchill v. Gardner, 7 Term R. 597; Russell v. Whipple, 2 Cow. 536. The making and delivery of a promissory note by defendant to plaintiff imports a liability to pay in accordance with its terms, without any averment of a continuous holding or ownership; and, after the allegation of the execution of the promissory note to plaintiff by defendant, a further allegation that plaintiff is still the owner and holder thereof would be surplusage. Poorman v. Mills, 35 Cal. 118; Wedderspoon v. Rogers, 32 Cal. 571. Defendant not having denied the execution of the note to plaintiff, his liability to pay is a legal conclusion; and not having affirmatively alleged any fact showing that he had paid, or relieving him from the legal liability to pay, he was not entitled, under his answer, to offer any defense in evidence. Edson v. Dillaye, 8 How. Pr. 274." In Ward v. Clay, 82 Cal. 502, 23 Pac. Rep. 50, 227, the court held: "Defects of form of averment or uncertainty cannot be urged upon general demurrer. A

complaint on a promissory note which states the material substance and legal effect of the note, showing its date, consideration, parties, principal sum, and rate of interest, and the amount due and unpaid, and avers that defendant refuses to pay the same or any part thereof, and that plaintiff is still the owner and holder of the note, is not subject to a general demurrer on the ground that a copy of the note is not embodied in the complaint." See Graves v. Drane, 66 Tex. 658, 1 S. W. Rep. 905. Our Code of Civil Procedure (section 85) requires the complaint to contain "a statement of the facts constituting the cause of action in ordinary and concise language." From a consideration of these authorities, we are of opinion that the complaint states facts sufficient to constitute a cause of action, and therefore sufficient to sustain the judgment appealed from. The appellant contends that, this being a suit upon a lost negotiable instrument, an indemnity bond should have been given or tendered by respondents before suit to entitle them to recover judgment. We do not think that the tender of indemnity can be considered as any part of the plaintiffs' cause of action, or as a fact or event upon which their right of action accrues. Randolph v. Harris, 28 Cal. 562, and cases cited. The appellant can fully protect himself by de