in what had been done, and a ratification of the unauthorized acts of the plaintiff in the first instance. Persons do not usually remain silent when they are put into possession of the knowledge that their property is being appropriated without warrant or right and converted to the use of another, and silence thereafter for a considerable length of time with full knowledge of the facts would indicate, in some measure at least, an assent to what had taken place, and therefore a ratification of the unauthorized act. We are impressed that the testimony above noticed should have gone to the jury for their consideration as to whether there was an acquiescence in or ratification of the acts of the plaintiff in appropriating defendant's property and making the indorsement of the same upon the note. There is a presumption, disputable in character, that a letter duly directed and mailed was received in the regular course of the mail (B. & C. Comp. § 788, subd. 24), and it was competent for the jury to have considered this in connection with the other testimony bearing upon the case.

The judgment of the circuit court will therefore be reversed, and the cause remanded for such other proceedings as may seem proper. REVERSED.

Argued 19 January, decided 20 February, 1905.

STATE. LEE.

79 Pac. 577.

PROOF OF OTHER CRIMES NOT INCIDENTAL TO THE ONE CHARGED. 1. Although proof of the commission of other crimes is sometimes admissible as incidental to the crime charged, it is never allowable to show that defendant has committed, or is said to have committed, crimes not connected with the one for which he is on trial.

For example, in a prosecution for larceny of a calf, after a witness had admitted that he did not feel kindly toward defendant, he should not have been permitted to state that his feelings were influenced by the supposition that defendant had stolen cattle in the neighborhood where he lived, for such a statement was merely an expression of the opinion that defendant was a thief, and was not connected with the disappearance of the calf, nor did it explain the bias of the witness.

SHOWING CHARACTER OF DEFENDANT.

2. Evidence of defendant's character or his general reputation is not admissible until he has raised the issue.

WITNESS-EXPLAINING BIAS.

3. Where it appears that a witness is biased he may state in general terms the reasons for his feeling, but details should be avoided.

From Washington: THOMAS A. MCBRIDE, Judge.

James G. Lee, feeling that he had not received justice by a sentence of four years in the penitentiary, appeals from a conviction of larceny. REVERSED.

For appellant there was an oral argument by Mr. Harry Taylor Bagley, with a brief over the names of Henry E. McGinn and H. T. Bagley to this effect.

In a prosecution for larceny it is prejudicial error to admit evidence that defendant was suspected of committing other larcenies. Even if it could be shown that such other larcenies had been committed by the defendant, it not appearing that such other larcenies were a part of the transaction for which the defendant was on trial, or connected with it in respect to either time or locality, they could not be received in evidence against him. Nothing can be gained by presenting the suspicions of hostile neighbors: State v. Olds, 18 Or. 440 (22 Pac. 940); State v. Baker, 23 Or. 441 (32 Pac. 161); State v. O'Donnell, 36 Or. 222 (61 Pac. 892); People v. Romano, 84 App. Div. 318; People v. Molineaux, 168 N. Y. 264, 291 (61 N. E. 286); People v. Guajardo, 24 Tex. App. 603; Denton v. State, 42 Tex. Cr. Rep. 427, 429; State v. Fritchette, 88 Minn. 145 (92 N. W. 527); People v. Carpenter, 136 Cal. 391, 393 (68 Pac. 1027); Gay v. State, 115 Ga. 204 (41 S. E. 685); State v. Murphy, 84 N. C. 742; State v. Sheppard, 49 W. Va. 597 (39 S. E. 676); People v. Ascher, 126 Mich. 637, 643 (86 N. W. 140); Paulson v. State, 118 Wis. 89 (94 N. W. 771); Commonwealth v. Jackson, 132 Mass. 16; State v. Kirby, 62 Kan. 436, 443 (63 Pac. 752); State v. Gottfreedson, 24 Wash. 398 (64 Pac. 523).

For the State there was an oral argument by Mr. Harrison Allen, District Attorney, and Mr. Edmund Burke Tongue, with a brief to this effect.

The purpose of the question asked of the witness Dennis was to show a hostility on his part toward the defendant, and then the witness had a right to explain the exact state of his feeling toward defendant and the reason therefor: Wharton, Crim. Ev. $477; Fisher v. State, 58 Ala. 215; Beasley v. People, 89 Ill. 571; Ellsworth v. Potter, 41 Vt. 687; State v. Warren, 41 Or. 348, 356 (69 Pac. 679).

MR. JUSTICE BEAN delivered the opinion of the court.

The defendant was tried and convicted of the larceny of a calf, the property of one Dennis. From the judgment sentencing him to the penitentiary he appeals.

1. Dennis was a witness for the State, and gave material testimony tending to support the theory of the prosecution. On cross-examination he was asked, "Your feelings have not been good. toward him (the defendant) ?" and replied, "No." He was then asked, "You and Mr. Boyd are known to be the enemies of Mr. Lee?" and answered, "I don't know how it is known. Q. What is the fact about it? A. I don't bear him any ill will, only it is the general supposition up there"- Here objection was made to the witness further answering the question, but it was overruled, and he continued: "That Mr. Lee has been getting away with cattle. There has been a good many cattle missing up there for years, and for that reason I have no particular friendship for him, or any one else that is in that kind of business." A motion was made to strike out all the testimony of the witness after the words "ill will," but it was overruled, the court saying, "I think he has a right to explain why." These rulings were erroneous, because the evidence objected to tended to show the commission by the defendant of crimes other than the one charged against him, or to prove his general bad character. Proof of the commission of a crime unconnected with that alleged in the indictment or information cannot be given against a defendant: State v. Baker, 23 Or. 441 (32 Pac. 161); State v. O'Donnell, 36 Or. 222 (61 Pac. 892); State v. McDaniel, 39 Or. 161, 173 (65 Pac. 520).

2. Nor is evidence of defendant's general reputation or bad character admissible until he has himself put his character in issue: Wharton, Crim. Ev. § 64.

3. It is argued by the State that the testimony objected to was the legitimate result of the cross-examination, and merely tended to explain the grounds of the feelings or bias of the witness toward the defendant. The hostility of a witness to the party against whom he is testifying affects his credibility, and the extent thereof is a proper subject of cross-examination. When

such examination discloses that the witness is biased or hostile to the party against whom he is testifying, he has a right to state, without entering into particulars, the grounds of such bias or ill will: State v. Warren, 41 Or. 349 (69 Pac. 679); Ellsworth v. Potter, 41 Vt. 687; Fincher v. State, 58 Ala. 215. But here the witness denied that he had any ill will or bias toward the defendant, except such as might arise from the general supposition that he had been committing other crimes. The evidence did not go to an explanation of the personal feelings of the witness. Its manifest tendency was to show the general reputation of the defendant, and not to explain the ill will or bias of the witness.

Judgment reversed, and new trial ordered.

REVERSED.

Decided 9 January, 1905.

BARNES v. LEIDIGH.

79 Pac. 51.

CONTRACTS-PERFORMANCE BY INSTALLMENTS*-ACCRUAL OF ACTION. 1. In the case of a contract of sale to be performed by installments, the vendor may sue for any proportionate payment whenever it is due without showing a full performance of the contract.

As an example: Where a sawmill owner contracted to sell and deliver the entire output of his mill for a certain period, the delivery, acceptance and payments to be made monthly, the vendor may sue for any installment whenever it is overdue, without reference to the balance of the contract. He need not plead or prove compliance with that part of the contract subsequently to be performed.

EVIDENCE OF MEANING OF PARTICULAR TERMS.

2. In an action on a contract to purchase a quantity of lumber at a specified price for "merchantable lumber, mill run," it is competent to show by oral testimony the meaning of those words in the lumber business in that vicinity, they being unusual words without settled judicial meaning.

REFUSING INSTRUCTIONS ALREADY GIVEN.

3. Instructions proposed by counsel may properly be refused when they have already been practically given in the language of the judge.

From Union: ROBERT EAKIN, Judge.

Statement by MR. JUSTICE BEAN.

This is an action by J. H. and D. Barnes against John H. Leidigh and another to recover $349.07 for lumber sold and

NOTE. As to the right of one party to abandon or rescind a contract because of the default of the other party, see Lake Shore & M. S. Ry. Co. v. Richards, 30 L. R. A. 33, with note, and Ross Meehan F. Co. v. Royer Wheel Co., 68 L. R. A. 829. REPORTER.

delivered. In February, 1903, the plaintiffs and defendants made a contract in writing as follows:

"That the said J. H. Barnes & Son have this day sold to the Lake Superior Lumber Company their entire mill cut for the year 1903-mill located near Elgin, Oregon; the lumber to be delivered and unloaded from wagons at proper piles in the yards of the Lake Superior Lumber Company at Elgin, Oregon, for which the Lake Superior Lumber Company agrees to pay $9.25 per M for merchantable lumber-mill run. The said J. H. Barnes & Son have sold to the Lake Superior Lumber Company their entire cut of lath and moulding strips at the following prices: Lath, $2.50 per M; 1 inch and 1 inch moulding strips at 25c per 100 lineal feet; 2 and 24 inch at 35c; and 3 and 34 inch at 45c; payments to be made as follows: All lumber delivered during the month to be paid for the 10th of the following month.

"The said J. H. Barnes & Son agrees to sort and furnish from the common at the mill and give the Lake Superior Lumber Company the use of their lumber yard for a rental of $50 per

year.

"The said J. H. Barnes & Son agrees to cut lumber of such dimensions as ordered by the Lake Superior Lumber Company."

The complaint alleges that defendants paid for all lumber and material delivered under the contract from the 11th of February to the 31st of July, but that there is a balance of $349.07 due and unpaid for lumber delivered during the month of August. The answer admits the contract as alleged, but avers that, at the time of its execution, defendants were engaged in buying and shipping lumber principally upon orders; that plaintiffs were so informed, and knew that they were to cut and deliver no lumber except such as would be suitable for the purpose stated, and of sizes and dimensions to be ordered by the defendants; that defendants furnished plaintiffs cutting orders, in pursuance of which they delivered lumber to the amount and value of $8,208.25, for which they have been paid in full, but that, in violation of their contract, they delivered 37,845 feet of defective and unmerchantable lumber, for which they charged defendants the contract price, amounting to $349.07; and that plaintiffs did not furnish to defendants the entire output of their mill, but sold and delivered 5,000 feet of merchantable lumber to other parties, to defendants' damage in the sum of $15. The reply denies the