4. Land agent Schulze was the general agent of appellant in relation to its lands and land business, and the making of the oral agreement extending the time of performance of the contract of sale until the settlement of the overlap controversy was within the scope of his authority: Hughes v. Lansing, 34 Or. 118, 124 (75 Am. St. Rep. 574, 55 Pac. 95); United States Bank v. Dandridge, 25 U. S. (12 Wheat.) 63; Rolling Mill v. Railroad, 120 U. S. 256, 259; American Cent. Ins. Co. v. McLanathan, 11 Kan. 533, 549; Denman v. Bloomer, 11 Ill. 177, 192; German Fire Ins. Co. v. Grunert, 112 Ill. 68, 71; Pratt v. Railroad Co. 21 N. Y. 305, 311; Standard Oil Co. v. Insurance Co. 64 N. Y. 85, 89; Isaacson v. New York C. & H. R. Co. 94 N. Y. 278, 285 (46 Am. Rep. 142); Credit Co. v. Howe Machine Co. 54 Conn. 357, 388 (1 Am. St. Rep. 123, 8 Atl. 472); McCormick H. Mach. Co. v. Russell, 86 Iowa, 556 (53 N. W. 310); Fishbaugh v. Spunaugle, 118 Iowa, 337 (92 N. W. 58); White Lake Lum. Co. v. Stone, 19 Neb. 402 (27 N. W. 95); Huntley v. Mathias, 90 N. C. 101 (47 Am. Rep. 516); Palmer v. Roath, 86 Mich. 602 (49 N. W. 500); Baker v. Kansas City R. Co. 91 Mo. 152, 158 (3 S. W. 486); Scott v. Wells, 6 Watts & S. 357 (40 Am. Dec. 568); Gano v. Chicago & N. W. R. Co. 66 Wis. 1 (27 N. W. 628); Kickland v. Menasha Woodenware Co. 68 Wis. 34 (60 Am. Rep. 831, 31 N. W. 471); Story, Agency, § 85; 4 Thompson, Corp. § 5251.

5. The oral agreement extending the time of performance of the contract of sale until the settlement of the overlap controversy was upon sufficient consideration. The mutual agreement. of the parties to forebear their respective rights under the contract until that controversy was terminated was sufficient consideration: Robinson v. Bullock, 66 Ala. 548, 555; Pioneer Sav. & L. Co. v. Nonnemacher, 127 Ala. 521, 546 (30 So. 79); Connelly v. Devoe, 37 Conn. 570, 576; Izard v. Kimmel, 26 Neb. 51, 57 (41 N. W. 1068); Bowman v. Wright, 65 Neb. 661 (91 N. W. 580); Cutter v. Cochrane, 116 Mass. 408; Thomas v. Barnes, 156 Mass. 581 (31 N. E. 683); Tingley v. Fairhaven L. Co. 9 Wash. 34, 39 (36 Pac. 1098); Long v. Pierce County, 22 Wash. 330, 348 (61 Pac. 142); Dyer v. Irrigation Dist, 25 Wash,

(25-46 Or.]

80 (64 Pac. 1009); Brown v. Everhard, 52 Wis. 205 (8 N. W. 725); Ruege v. Gates, 71 Wis. 634 (38 N. W. 181); Clark, Contracts, § 78.

6. The circuit court correctly charged the jury as to the measure of damages. The measure of respondent's damages was the market value of the land at the time of appellant's refusal to convey, less the unpaid balance of the purchase price. That is the correct measure of damages in all actions of this character: Mackey v. Olssen, 12 Or. 429 (8 Pac. 357); Hopkins v. Lee, 19 U. S. (6 Wheat.) 109, 118; Hamaker v. Coons, 117 Ala. 603, 611 (23 So. 655); Wells v. Abernethy, 5 Conn. 222, 227; Brooks v. Miller, 103 Ga. 712, 721 (30 S. E. 630); Gale v. Dean, 20 Ill. 320, 323; Plummer v. Rigdon, 78 Ill. 222, 226 (20 Am. Rep. 261); Doherty v. Dolan, 65 Me. 87 (20 Am. Rep. | 677); Kirkpatrick v. Downing, 58 Mo. 32, 38 (17 Am. Rep. 678); Hartzell v. Crumb, 90 Mo. 629, 635 (3 S. W. 59; Krepp v. St. L. & C. R. Co. 99 Mo. App. 94, 101; Wasson v. Palmer, 17 Neb. 330 (22 N. W. 773); Shaw v. Wilkins, 27 Tenn. (8) Humph.) 647 (49 Am. Dec. 692, 696); Boardman v. Keeler, 21 Vt. 78, 84; Cade v. Brown, 1 Wash. 401 (25 Pac. 457); Muenchow v. Roberts, 77 Wis. 520 (46 N. W. 802); Johnson v. McMullin, 3 Wyo. 237 (4 L. R. A. 670); Old Colony R. Corp. v. Evans, 72 U. S. (6 Gray) 25, 34; 2 Warvelle, Vendors, 959, 960; 3 Sedgwick, Damages (8 ed.), § 1012; 2 Sutherland, Damages (2 ed.), § 579.

7. In any view of the law as administered by the American courts, that is the correct measure of damages in the case, because where the vendor knows when he makes a contract to sell lands that he has not title, or that his title is in doubt, or where he has in fact title, but he refuses to convey, or where it is in his power to remedy the defect in his title but refuses or neglects to do so, the vendee is entitled to recover the value of the lands at the time they ought to have been conveyed: Snodgrass v. Reynolds, 79 Ala. 452 (58 Am. Rep. 601); Morgan v. Stearns, 40 Cal. 434; Irwin v. Askew, 74 Ga. 581, 585; Sanford v. Cloud, 17 Fla. 532, 554; Plummer v. Rigdon, 78 Ill. 222 (20 Am. Rep. 261); Foley v. McKeegan, 4 Iowa, 1, 8 (66 Am. Dec. 109); Sweem v. Steel, 5 Iowa, 353; Lewis v. Lee, 15 Ind.

499; Case v. Wolcott, 33 Ind. 5; Duncan v. Tanner, 25 Ky. (2 J. J. Marsh) 399; Tracy v. Gunn, 29 Kan. 362; Brigham v. Evans, 113 Mass. 538, 540; Cannell v. McClean, 6 Harr. & J. (Md.) 297; Allen v. Atkinson, 21 Mich. 351, 362; Hammond v. Hannin, 21 Mich. 373 (4 Am. Rep. 490); Barbour v. Nichols, 3 R. I. 187; Carver v. Taylor, 35 Neb. 429, 434 (53 N. W. 386); Chartier v. Marshall, 56 N. H. 478; Drake v. Baker, 34 N. J. Law, 358; Driggs v. Dwight, 17 Wend. 71 (31 Am. Dec. 283); Trull v. Granger, 8 N. Y. 115; Bush v. Cole, 28 N. Y. 261 (84 Am. Dec. 343); Taylor v. Barnes, 69 N. Y. 430, 434; Lee v. Russell, 30 N. C. (8 Ired. L.) 526; Nichols v. Freeman, 33 N. C. (11 Ired. L.) 99; Hartzell v. Crumb, 90 Mo. 629 (3 S. W. 59); Cooper v. Simpson, 41 Minn. 46 (16 Am. St. Rep. 667); Dustin v. Newcomer, 8 Ohio, 50; Hopkins v. Yowell, 13 Tenn. (5 Yerg.) 305; Clark v. Locke, 33 Tenn. (11 Humph.) 300; Phillips v. Herndon, 78 Tex. 378 (22 Am. St. Rep. 59, 14 S. W. 857); Dunshee v. Geoghegan, 7 Utah, 113 (25 Pac. 731); Cade v. Brown, 1 Wash. 401 (25 Pac. 457); 2 Sutherland, Damages (2 ed.), § 581.

8. The circuit court correctly ruled upon the admissibility of evidence going to show the value of lands: Boom Co. v. Patterson, 98 U. S. 403, 408; Snodgrass v. Reynolds, 79 Ala. 452, 462 (58 Am. Rep. 601) Little Rock, etc., Ry. v. McGehee, 41 Ark. 202; Little Rock J. Ry. v. Woodruff, 49 Ark. 381, 391 (4 Am. St. Rep. 51); Illinois & W. R. Co. v. Von Horn, 18 Ill. 258, 260; Haslam v. G. & S. W. R. Co. 64 Ill. 353, 355; Lafayette B. & M. R. Co. v. Winslow, 66 Ill. 219, 221; Chicago & E. R. Co. v. Jacobs, 110 Ill. 414, 416; Dupuis v. Chicago & N. W. Ry. Co. 115 Ill. 97 (3 N. E. 720); Dickenson v. Inhabitants of Fitchburg, 79 Mass. (13 Gray) 546-556; 1 Sutherland, Damages (2 ed.), § 450.

MR. JUSTICE BEAN delivered the opinion of the court.

The controlling propositions made by the defendant on this appeal are: First, there never was any agreement or understanding for an extension or waiver of time of performance; second, if such an agreement were made, Schulze had no authority to act for or to bind the defendant thereby; third, if such

contract were made, and Schulze had authority to bind the defendant, it was void because within the statute of frauds, and not in writing; and fourth, the court erred in ruling and instructing the jury that the measure of damages for a breach of the contract was the value of the land agreed to be conveyed at the time of the breach, less the balance due on the purchase price, and in admitting evidence tending to prove such value.

1. The first two points involve questions of fact. They were submitted to and decided by the jury adversely to the defendant, and if there was evidence to support the verdict, it cannot be disturbed. We are only, required, therefore, to look far enough into the record to ascertain whether or not this is so, and not to determine whether it is in accordance with the weight of the testimony.

2. The plaintiff testified that he was a half owner with Himpel in the contract for the purchase of the land, and that such fact was known to the defendant and its officers at the time it was made; that after the contract had been executed, in the latter part of the summer or early fall of 1883, Himpel told him that there was a question about the title to the land which the defendant had agreed to sell to them, and that Schulze had been talking to him about it; that thereupon he and Himpel immediately went to the office of Schulze to see about the matter, and Schulze told them that there was a dispute between the defendant and the Northern Pacific Railroad Co. concerning the land, and in his (Schulze's) opinion the Northern Pacific would finally get it; that in view of this controversy he would not accept any further payments on the contract with the defendant until it was settled; that he was the land agent of each company, and that, if the Northern Pacific Co. got the land, he would sell it to them on the same terms, but in that event they must take their money back from the defendant without interest, and without making any trouble; that, if the Northern Pacific should lose the land, they should commence making the payments on their contract with the defendant the same as before; that witness and Himpel agreed to this arrangement, and relied upon the same; that they heard nothing more about the matter, but when the second payment became due witness went to the office

of Schulze to inquire about it, and, finding him out of the city, and having no written contract for the extension of the time of payment, offered to make the second payment to the clerk in charge of the office, who received the money, and made the proper credit on the contract.

Continuing, he says that when Col. Moores, who was acting as land agent during Schulze's absence, learned of the payment, he refused to accept it, and told witness that he had positive instructions from Schulze not to take the money or receive any more payments on the land until the overlap controversy was settled; that the money was then handed back to witness, and Moores erased the credit on the contract by drawing lines with red ink through it; that nothing more was done until about the time the third payment became due, when plaintiff and Himpel again went to the office of the defendant to inquire about the overlap controversy, and to see whether it was ready to receive payments on the contract, and there had a conversation with Mr. Andrews, who in the mean time had succeeded Schulze as land agent; that witness asked Andrews about the controversy, and whether he and Himpel should go ahead with their payments, and talked over with him the arrangements they had made with Schulze; that Andrews said: "Schulze is certainly mistaken about our not getting the land," whereupon Himpel said: "We will make the payments any time that you are prepared to make your deed. We stand prepared to pay the whole contract right up at any time. Are you ready now?" And Andrews said: "No, we are not in a position to make a deed now; there is only one thing to be done, and that is to let the matter rest until this controversy between the Oregon & California Railroad Co. and the Northern Pacific Railroad Co. is settled, and when it is I will personally notify you"; that Andrews took the addresses of witness and Himpel, and they went away from the office; that a few weeks later when witness returned from one of his trips in the country, he found a note to him from Andrews, requesting him to deliver an inclosed sealed letter to Himpel; that on May 3, 1885-the first time he saw Himpel thereafter-he delivered the note to him that it was from Andrews, dated April 4, 1885, and informed Himpel that the second and third payments on the