That this building was the property of the railroad company is not denied; that the company caused it to be constructed and equipped in manner described, was proven by the witnesses.

C. W. Fisher, superintendent of the defendant, stated upon the witness stand, that the building was constructed for the company upon contract; that it was his business to inspect the building and property of the company, and that on the completion of the depot he inspected it, found it all right and received it.

When asked about the condition of the defective flue in the office ceiling, he answered that he did not remember of giving special attention to the flue, he was under the impression that the flues were all right. He said it was his special duty to see that such things were safe, that he went there to examine and found them all right. He was unable to say, however, whether there was a flue in the office ceiling or not, at the time of his inspection, but admitted that the furnishing of flues for the building was not included in the contract. He then stated that an employee of the railroad company known as "foreman of buildings," by name of John Greenslit, was to look after the flues. Mr. Greenslit being called to the stand and asked if he knew anything about a flue in the office ceiling, answered that he did not. He said he had furnished but one flue, and that went into the waiting room; he had put none in the office.

The testimony shows there were three stoves in use in this build- · ing, but we have here the remarkable admission that but one flue was provided, and that was not for the office, where it seems, fire was necessary at all seasons, but for the waiting room.

The testimony further shows that from the completion of the building to the time of the fire, this depot station was in the general charge of one F. E. Colyer, as station agent and telegraph operator of the defendant. The only other employee of the defendant at that point, at and about the time of the fire, was one Charles Hilton, who appears to have been employed as an assistant to the agent, Colyer. Mr. Rundle, the defendant's superintendant of telegraphs, says he authorized Colyer to employ Hilton, for the business of checking tracking freight at the station. But the testimony shows that in the absence of Colyer, Hilton ran the station, excepting only the telegraph instrument. These two men, Colyer and Hilton, slept together in a bed in the office, and were sleeping there when the fire occurred. The weather was cool in the evenings, at that point, rendering it necessary to have fire in the office stove almost every night, although it was in the month of August. On the night of the thirteenth of August, there was a fire in the stove, and as these men were about to retire to bed, the stove was filled up with coal, more than the usual quantity being put in, according to the testimony of Colyer. They were awakened about twelve o'clock in the night, by the fire, which had been communicated to the ceiling, and had gained such headway that they could do nothing but escape from the building, which was soon destroyed. Two or three weeks before this, the station agent was alarmed by

a fire on the ceiling at the same point. It appears that some chips had been left there by the carpenter when constructing the building, and that they were ignited by the heat of the stovepipe. This fire was extinguished by the agent, with the assistance of other persons, by means of a bucket of water, but no precautions were taken to prevent a recurrence, save to brush back the chips. The occurrence is mentioned by the witnesses as creating quite a "scare" at the time.

As to the contents of the building, on the night of the final conflagration, witnesses testified that there were about twenty cases of giant powder, or giant cartridges in the freight room, weighing fifty pounds to the case; also, a considerable quantity of coal oil in the immediate vicinity.

Testimony was introduced as to the explosive and dangerous nature of giant powder, and as to what agencies would cause it to explode.

The facts of the fire and explosion; the situation of the plaintiff and his property, and the effects produced by the disaster, were all proven.

In view of the issues and the testimony, then, we have no hesitation in pronouncing the instructions both correct and applicable to the case presented to the jury.

Concerning the unsafe condition of the building in respect to fire, the testimony was confined to the so-called defective flue, showing wherein it was defective; also, that the fire which destroyed the building originated at this point, and that it was communicated from the fire in the office stove, by means of the stovepipe, which passed through the defective flue. The reference in the instructions, then, to the unsafe condition of the building, and its liability to take fire from a fire kept therein, could not have been misunderstood by the jury.

Appellant's counsel think the previous fire without significance on the question of a defective flue. They say the ceiling did not ignite on the occasion, but only the chips against the stove-pipe. But the witness Colyer said, when asked if he saw where the fire was when he poured on the water, "Yes, sir, the chips and the ceiling were also burnt."

This testimony was received without objection, and we think it was proper matter for the consideration of the jury on the question of negligence. It showed that the special attention of the defendant's agents was called to the condition of this flue, or stove-pipe passage, before the storing of the explosive materials in the building. It was a notice to the defendant's agent, and through him to the defendant itself, not only of the condition of the flue, but of the degree of heat generated by the stove-pipe and the danger, great or small, of a fire originating at this point.

This agent being in charge of the company's property and business at this station, the rule applies that knowledge acquired by

agents of corporations of facts coming within their respective departments of service is the knowledge of the corporation.

On the question of notice, it further appeared that officers of the company whose special duty it was to inspect this building, and to see that necessary flues were provided and put in, neglected that duty. The agent in charge of the building knew from a personal inspection, and from the warning of a previous fire, that the socalled flue was defective and dangerous. Within the principles announced, then, all these agents were chargeable with knowledge of the dangerous condition of the building. This knowledge being acquired within the course of their several employments, it was their duty to communicate it to the company, and in law, the knowledge of these agents was the knowledge of the company. In the language of the instructions, notice to these agents was notice to the company.

This disposes of the objection that the "instructions sanction a notice to any brakeman or laborer in the service of the company." The notices proved were to the officers and employees who were duly authorized by virtue of their offices, and the scope of their employment, to represent the company in these identical matters, and not to be brakemen or laborers.

Lastly, under the rules of law before stated, the shipping of the giant cartridges to this depot; the depositing of them in the building, and the making of the fire in the office stove were each and all of them the acts of the defendant.

These, and the failure to provide a sufficient flue, being the acts complained of, and it being shown that they were all committed by agents of the company in the course of their employment, and within the scope of the authority confided to them, the court properly said of them in its instructions-" the acts of its agents and employees. were the acts of the defendant."

The question whether the acts complained of constituted negligence, was a question for the jury to decide, and was so left. We think their finding was fully warranted.

The remaining errors assigned relate to the allowance of interest on the value of the property destroyed. The court instructed the jury that if they found a verdict for the plaintiff, they should assess his damages at the value of the property destroyed, with interest thereon, at the rate of ten per centum per annum from the time it was so destroyed.

Interest in this state is a creature of statute and regulated thereby. It is only recoverable, in the absence of contract, in the cases enumerated in the statute, and damages to property arising from the wrong or negligence of a defendant is not one of the enumerated.

cases.

The statute is not out and construed in Hawly v. Barker, 5 Colo., 118, where it was held that interest was not recoverable on the amount of a verdict, although a period of nearly two years had

elapsed from the date of its rendition up to the time of the entry of judgment thereon.

For adjudications upon similar statutory provisions see I. C. R. R. Co. v. Cobb et al., 72 Ill., 148; City of Chicago v. Allcock, 86 Ill., 384; Atkinson v. A. & P. R. R. Co., 63 Mo., 367; Kenney v. H. & St. J. R. R., Id., 99. The instructions were erroneous in this particular, and since it is to be presumed that the jury obeyed them and computed interest, at the rate mentioned, on the value of the property destroyed by the explosion, from the date of its destruction to the date of verdict, the judgment must be reversed for this error. But it will not be necessary to remand the cause for a new trial on account of this single error. It is true that interest was only given upon the value of the property destroyed and not upon the damages assessed for personal injuries; also, that we have no means of ascertaining the amount of the sum upon which interest was allowed. But the plaintiff consents to remit from his judgment a sum equivalent to the interest on the total amount of his damages, which not only cures the error, but is more favorable to the defendant.

Interest upon the entire amount of damages from August 14, 1880, the date of the fire, to May 3, 1881, the date of the judgment, would amount to the sum of one hundred and fifty-one dollars. ducting this sum from two thousand two hundred and fifty dollars, the amount of the judgment, leaves as the true amount for which judgment should be entered, the sum of two thousand and ninetynine dollars.

It is therefore ordered that the judgment of the district court be reversed, and that judgment be entered herein in favor of the appellee for the sum of two thousand and ninety-nine dollars, and for costs in the district court as taxed. It is further ordered that appellee pay the costs in this court to be taxed.

SUPREME COURT OF OREGON.

NECKLIN v. NELSON ET AL.

Filed December 1, 1884.

NOTICE.—

BILL OF SALE ABSOLUTE IN FORM WHEN A CHATTEL MORTGAGE-RECORDING A bill of sale absolute in form is considered a chattel mortgage upon proof by parol that it was given to secure a debt, not only as to the parties to it, but also as to third parties who are affected with notice. Such bill of sale is entitled to be filed with the county clerk as a chattel mortgage, under section 46 of the code, page 522, and thereafter it imparts notice to third parties, although the clerk may omit to index the instrument.

CHATTEL MORTGAGE TO SECURE FUTURE ADVANCES LIEN OF WHEN ATTACHES.-In the absence of fraud, a chattel mortgage to secure future advances is valid, whether such object be expressed in the mortgage or not. The lien of such mortgage attaches from the date of the advance, and not from the date of the mortgage.

APPEAL from the circuit court for Multnomah county. The opinion states the facts.

Alfred S. Frank, for the appellant.

P. L. Willis, for the respondent.

LORD, J. The plaintiff took from the defendant Nelson a bill of sale, intended to operate as a mortgage, of certain property belonging to him, and which the plaintiff left in his possession, and which the defendant, Betts' Spring Company, attached, after such bill of sale had been filed and recorded. Thereafter, the plaintiff commenced suit to foreclose, and the Betts' Spring Company answered, claiming the lien of said attachment was to be preferred to any lien or rights accruing under such bill of sale. After issue joined, the matter was referred to a referee, who, after taking the evidence, reported to the court his findings of fact and conclusions of law. These findings were set aside by the court below and a decree rendered, adjudging the lien of the plaintiff under such bill of sale to be prior to that acquired by the attachment, and from which decree the defendant, Betts' Spring Company, appeal to this court.

As a

As ground of error, it is alleged: (1) That the bill of sale was not entitled to be entered of record as a mortgage, and must, therefore, be postponed to the lien of the attachment, and as a matter of law was fraudulent. (2) That the bill of sale was executed and delivered without consideration, and with the intent to defraud, delay, and hinder creditors. (3) That the amount of the consideration recited in the bill of sale was in excess of the amount due and owing the defendant Nelson by the plaintiff, and exceeded such indebtedness in the sum of seven hundred and fifty dollars. reply to the matter of false consideration, the plaintiff alleged that it was given to cover future advances; and further alleged, that previous to and up to the time of the execution and delivery to him of the bill of sale now in question, the defendant Nelson, more than a year prior to this, had executed and delivered to him, for a valuable. consideration a bill of sale to secure this same debt, and which was duly filed in the clerk's office, and which, up to the time of the execution and delivery of the last bill of sale-the one now in dispute, covered nearly all of the same property. It is hardly necessary to cite authorities to show that a bill of sale absolute in its terms becomes a chattel mortgage upon proof by parol that it was made to secure a debt. It is the nature of the transaction at its inception which determines the character of the instrument. If it be in form a bill of sale, but the transaction was intended to secure a debt, it is a mortgage, and parol evidence is admissible to show the true nature of the transaction for this purpose. And it is not only a mortgage between the parties to it, but also as to third parties who are affected with notice: Jones on Chattel Mort., sec. 22, and n. The evidence shows that the bill of sale was given to secure a debt of two thousand two hundred and fifty dollars, and for future advances not to exceed seven hundred and fifty dollars, making a total of three thousand dollars, the amount of the consideration recited in the bill of sale. Without detailing the particulars, the evidence shows sub