quo of the final termination of the dam on the south bank of Rogue River, when the dam was relocated and reconstructed about the years 1893 or 1894; and he made no objection to such relocation or reconstruction, although he must have known of the fact, and that the company was expending money in furtherance of the project. The company continued to use such dam as so relocated and reconstructed for about six years or more, and no one seems to have disputed or controverted its right to maintain the structure until it began to make some repairs about the year 1900, when the plaintiff says he objected to such construction and maintenance. His further examination, however, is effective to develop the fact by clear deduction that the objection was not to the maintenance of the dam or the abutment where located, but to increasing its height, and to the manner in which it was being tied to the bank, and to the lack of bank protection. This, it seems to us, is tantamount to an assent to the maintenance of the structure at the place where the present dam is located; and not only did he not manifest his dissent to such maintenance, but he suggested and advised with the officers and employees of the company as to how and in what manner the abutment should be constructed to protect the bank and make it secure against the action of the water.

So, with Mr. Corliss, who was interested in the premises prior to the plaintiff's acquiring title thereto, his objection was not to the locus in quo, but to the manner of the maintenance of the structure, and to the lack of protection to the bank against injury by overflow. Under these conditions, and with the tacit, if not express, assent of the plaintiff, the company continued to expend large sums of money in making the structure permanent and substantial, and in a fair endeavor to protect the plaintiff from harm from inundation. And the plaintiff is now estopped to insist that the dam or its south abutment should be removed. As was observed in Boynton v. Ress, 8 Pick. 329, 332 (19 Am. Dec. 326), "the change of its original position, acquiesced in by the proprietors of the land, was justifiable, and will be presumed to be in accordance with the intention of the parties to the conveyance." In the present instance we must presume that it was in

accordance with the intention of the parties to the grant of the easement.

6. It is further insisted that the dam has been raised in height so as to overflow plaintiff's land to a depth greater than formerly, and that this should be inhibited. The evidence probably sustains the contention as to the raising of the height of the dam, but the grant is so broad in its terms as to indicate clearly an intendment to confer the right so to do. It reads, after giving the right to construct, repair, rebuild, and maintain the dam, abutments, and cribs therein, thus:

"Together with the full, free right, liberty, and privilege forever to flow the waters of said Rogue River back upon and over the said land of the party of the first part at any and all times as a result and in consequence of said dam across said river without any damages or claim or demand for damages upon the part of the party of the first part, his heirs or assigns."

These terms are explicit, and do not in any way limit the company in constructing the dam to any height it might deem proper, in so far as the plaintiff is concerned.

There is some contention that the instrument does not correctly express the agreement of the parties, and that its consummation was the result of fraud practiced upon the grantor. The complaint, however, does not make any mention of fraud in the premises, nor is it in any manner made the basis of recovery, so that inquiry concerning it is not germane to the issues under which the case was tried.

These considerations affirm the decree of the trial court, and such will be the order here. AFFIRMED.

:

Argued 4 January, decided 30 January, 1905.

AGENCY-ESTOPPEL.

GARDNER v. WILEY.

79 Pac. 341.

1. Under the general law of estoppel an employer who permits his employee to sell goods as though he were an independent dealer, holding him out to the public as such, will not be permitted to deny his apparent position as against those who have dealt with him without notice of the facts and in good faith.

NOTES-NEED OF INDORSEMENT BY JOINT PAYEES.

2. Notes payable to more than one payee cannot be assigned except by the joint action of all the payees, nor can an undivided interest therein be transferred by any one or more payees less than all.

INDORSEMENT OF NOTES PAYABLE TO PAYEE BY A FIRM NAME.

3. A note payable to one by a firm or business name may be indorsed by him personally.

From Multnomah: ÁLFRED F. SEARS, JR., Judge.

Bill of interpleader, wherein the plaintiffs were discharged and the money in court was ordered paid to C. S. Wiley, from which the Mihalovitch-Fletcher Co. appeals. AFFIRMED.

For appellant there was a brief over the name of Paxton, Beach & Simon, with an oral argument by Mr. Nathan D. Simon.

For respondent there was a brief over the name of Williams, Wood & Linthicum, with an oral argument by Mr. J. Couch Flanders.

MR. JUSTICE BEAN delivered the opinion of the court.

1. This is a bill of interpleader filed by Gardner Bros. against Charles S. Wiley and the Mihalovitch-Fletcher Co. to have determined the conflicting claims of the defendants to the amount due on certain promissory notes given by the plaintiffs to the G. Winehill Anti-Trust Distilling Co., and subsequently transferred by Winchill to one Rosenberg, and by Rosenberg to Wiley. The facts are that in June, 1902, Winehill, who had previously been employed by the Crystal Springs Distilling Co., desiring to make some change in his business arrangements, entered into negotiations with the Mihalovitch-Fletcher Co., wholesale liquor dealers of Cincinnati, Ohio, for the handling of their goods in the States of Oregon, Washington, Idaho, Montana, and Wyoming. After satisfactory arrangements had been made, the Mihalovitch-Fletcher Co. suggested that Winehill do business under the name of George Winehill & Co.; but, as he had previously been working for a wholesale house belonging to the trust, he preferred the name of the Anti-Trust Distilling Co., and that was agreed upon by the parties. They thereupon entered into a written agreement designating the parties thereto as Mihalovitch-Fletcher Co., party of the first part, and the Anti-Trust Distilling Co., party of the second part. By the terms of this agreement the Mihalovitch-Fletcher Co. agreed to sell to the Anti-Trust Distilling Co. all the line of goods they manufactured or had for sale at certain prices, to keep the books of the distill

ing company for the nominal charge of $10 a month, to fill and ship orders as directed, bill out all goods, attend to all correspondence, and draw on customers as accounts became due. The distilling company was to give each month a note due four months after date for all goods ordered by it from the Mihalovitch-Fletcher Co. during the previous month, and remit to the latter all collections from customers, the amount thereof to be credited on the notes. If the collections were not sufficient to pay the notes of the distilling company at maturity, a further extension of two months was to be given, but the extension notes were to be paid in full when due, without further delay. If the Mihalovitch-Fletcher Co. had to buy goods in the market to fill orders, it was to receive ten per cent profit thereon. The distilling company was to take out and pay for wholesale and retail licenses, hire and direct all salesmen, and pass on all orders. Such orders were to be filled by the Mihalovitch-Fletcher Co. if it found them satisfactory. A monthly statement was to be rendered by the Mihalovitch-Fletcher Co. to the distilling company of all sales and collections, and it was to extend to the distilling company a credit of $20,000, should the company use proper judgment in selling goods to responsible parties. The distilling company was to take out an insurance policy on its accounts, so as to provide against loss, and all accounts for goods sold were to belong to the Mihalovitch-Fletcher Co., the proceeds to be applied in payment of the bills and notes of the distilling company. This contract was signed, "G. Winchill for the AntiTrust Distilling Co.," and "Mihalovitch-Fletcher Co."

After the making of the contract, Winehill traveled and sold goods under the name of the Anti-Trust Distilling Co., or G. Winehill Anti-Trust Distilling Co., within the territory mentioned, to whomsoever he pleased, and at such prices as he desired; sending his orders to the Anti-Trust Distilling Co., at Cincinnati, where they were filled from the goods of the Mihalovitch-Fletcher Co., but billed to the customers in the name of the Anti-Trust Distilling Co. On the first of each month the Mihalovitch-Fletcher Co. sent a statement or bill for goods previously ordered to Winchill, who made, executed, and delivered

to them a promissory note therefor. The business relations thus continued between the parties until some time in 1903, and during that time Winehill sold to the plaintiffs, for the AntiTrust Distilling Co., goods of the value of $789.76, for which he took their five several promissory notes, payable to the order of "G. Winehill Anti-Trust Distilling Co." These notes he subsequently sold and transferred to one Rosenberg, who assigned them to the defendant Wiley for collection. The position of the Mihalovitch-Fletcher Co. is that the name "Anti-Trust Distilling Co.," used in its dealings with Winehill, and under which he did business, was intended as a mere device to deal with the retail trade without offending the jobbers, and that Winehill was in fact nothing more than a traveling salesman of theirs, and therefore had no right to take notes in his own name for goods, or to transfer or dispose of such notes. Winehill, on the other hand, testifies that he was not a salesman, or in the employ of the Mihalovitch-Fletcher Co., but was doing business on his own account as the Anti-Trust Distilling Co., paying for such goods as he ordered from time to time from the Mihalovitch-Fletcher Co., and therefore owned and had a right to sell to Rosenberg the notes taken by him from the plaintiffs for goods sold to them. In this position Winehill is corroborated by the form of the agreement made by him with the Mihalovitch-Fletcher Co. and the subsequent course of dealings, but it is not necessary to decide that question in this case. In any event, the Mihalovitch-Fletcher Co. permitted him to do business under the name of the AntiTrust Distilling Co., or G. Winehill Anti-Trust Distilling Co., holding him out as such company, and it is therefore estopped to deny his authority as against parties dealing with him without notice or knowledge.

It is admitted that the notes given by the plaintiffs to Winehill in payment of goods sold by him to them were valid and binding as between them and the Mihalovitch-Fletcher Co., and a complete settlement of their account, because they had no notice or knowledge of the alleged relationship between Winehill and the company, but acted and relied upon the apparent fact that Winehill was himself the proprietor and owner of the Anti-Trust Dis