REPORTS OF CASES DETERMINED IN THE SUPREME COURT JANUARY TERM, 1880. THE STATE OF OREGON, EX REL. J. H. MAHONEY, RESPONDENT, v. J. D. McKINMORE ET AL., APPELLANT. APPEAL-MOTION TO PERFECT, WHEN FILED.-A motion to perfect an appeal by filing a new undertaking must be filed before a motion to dismiss the appeal is brought on for hearing. IDEM-AFFIDAVITS OF SURETIES, WHEN FILED.-Affidavits showing the qualifications of sureties to an undertaking must be filed contemporaneously with the undertaking. IDEM-AMOUNT OF UNDERTAKING.-An undertaking on appeal must not be limited in amount. APPEAL from Douglas County. In this cause the respondent moves to dismiss the appeal: 1. For the reason that the undertaking is limited in amount to the sum of two hundred dollars. 2. Because no affidavits are filed, undertaking as to the qualifications of the sureties thereto. After this motion was called for argument and the counsel for respondent had opened the case, and while he was making his argument upon the motion, the counsel for appellants filed a cross-motion asking leave to file a new and sufficient undertaking. By the Court, BOISE, J.: In the case of Cross v. Chichester, 4 Or. 114, it was held by this court that it is too late to apply to the court to perfect the appeal by filing a new undertaking "after the motion to dismiss is brought on for hearing," and such has been the rule of practice since that decision; and we think Opinion of the Court-Boise, J. the rule laid down in that case is decisive of this point in this case, and that the appellant was too late in filing his motion to perfect the appeal by filing a new undertaking. In the case of Holcomb v. Teal, 4 Or. 352, it was held that the affidavits of the sureties in an undertaking on appeal as to their qualifications must be filed contemporaneously with the filing of the undertaking, and as there are no affidavits as to the qualifications of the sureties filed in this case, we must hold this undertaking insufficient unless we disregard the authority of that case, which we do not think we would be warranted in doing. It is also urged that this undertaking is not sufficient, for the reason that the obligation of the sureties is limited to the sum of two hundred dollars. The statute regulating appeals, page 219, sec. 528, provides that "the undertaking of the appellant shall be given with one or more sureties to the effect that the appellant will pay all damages, costs, and disbursements, which may be awarded against him on the appeal, but such undertaking does not stay proceedings unless the undertaking further provides to the effect following." * order to perfect the appeal the appellant must comply with the statute, and give to the respondent all the security which the statute guarantees to him. It is not possible to ascertain before the appeal is tried the amount of the damages, costs, and disbursements that will be awarded to the respondent if the appeal is determined in his favor. If the appellant can limit the liability of his sureties to two hundred dollars, he may to any less sum. The law has limited the liability of the sureties to the damages, costs, and disbursements, and the respondent has a right to insist that the undertaking be not otherwise limited in amount. it is a general rule that statutory bonds and undertakings, to be valid and binding as such, must in substance conform to the requirements of the statute. It is a statutory remedy that the appellant is seeking by his appeal, and in order to avail himself of it he must comply with the requirements of the statute. In And We think that the undertaking is defective in binding the liability of the sureties. The appeal will be dismissed. Opinion of the Court-Boise, J. B. F. DRAKE, RESPONDENT, v. JAS. K. SEARS, APPEL LANT. MEASURE OF DAMAGES-WARRANTY OF ENGINE.-In case of a breach of APPEAL from Polk County. The facts are stated in the opinion. B. Hayden, W. H. Holmes, and X. N. Steeves, for appellant. By the Court, BOISE, J.: This is an action to recover the price of an engine, boiler, and appurtenances, alleged by the respondent to have been by him sold and delivered to the appellant at the agreed price of seven hundred and fifty dollars; also to recover the sum of four hundred and fifty-three dollars and twenty-one cents for materials and machinery sold and delivered to the appellant by the respondent on a book account, both claims aggregating the sum of one thousand two hundred. and three dollars and twenty-one cents. The defendant, in his answer, denied the absolute sale of the engine, and denies that the materials and other machinery, contained in plaintiff's second cause of action, were worth more than the sum of three hundred and sixtytwo dollars and eighty-eight cents, and alleges that the same were purchased by defendant at the agreed price of said three hundred and sixty-two dollars and eighty-eight cents between the plaintiff and defendant, and admits that they were worth that price; so that the only controversy as f48 Opinion of the Court-Boise, J. to these articles named in said count of the complaint is as to the price. As to the engine named in the first count of the complaint, the defendant, after denying the sale and indebtedness therefor as alleged in the complaint, alleges, by way of a separate and further answer, that he purchased the same to be used in his warehouse at McCoy, in Polk County, in elevating and cleaning grain; that the plaintiff warranted the engine to be perfect, and capable of doing the work of elevating and cleaning the grain at his said warehouse in a complete and satisfactory manner, and that it was a good and capable engine for said purposes, and that the defendant was not to pay for the engine until it was proved to be capable; that the engine was received by the defendant at the earnest request of plaintiff, and on his express warranty that it was sufficient for said purposes; that the plaintiff selected a man, by the name of J. F. Leach, to set up the engine to give it a fair trial, for whose services the defendant was to pay three dollars and a half per day; that said J. F. Leach did set up said engine in said warehouse, but that it could not be made to do the work, and that the same proved worthless, and that the defendant notified the plaintiff of that fact, and that he would not accept said engine; that said Leach was employed on said engine, in putting up and trying to operate the same, eleven days, between the twentieth day of August, 1879, and the fifth day of September of the same year, and that defendant has paid said J. F. Leach eighteen dollars on said work. Defendant claims that there has been a breach of said warranty by the plaintiff, and claims damages therefor in the following allegations in his answer: "Defendant alleges that under the contract aforesaid the plaintiff was to deliver said machine on or before the sixteenth day of July, 1879, but the same was not delivered until some days later, to wit: about the twenty-first of August, 1879. Defendant alleges that by reason of the aforesaid representation and warranty of the plaintiff, the defendant paid for hire of teams and men, and for materials used in trying to operate said engine-amounting to two hundred |