him at large upon the public, it would materially affect their determination of the cause. The court should therefore inform the jury that such a verdict may not necessarily so result, and that under the law it is a matter for the court to determine whether his running at large would endanger public peace and safety. This would in no sense be stating to the jury what the penalty would be, or what the court would do under such circumstances; nor is such the import of the requested instruction. Since the law requires the insanity to be established beyond a reasonable doubt, unless the jury is fully enlightened as to the law bearing on the subject, this defense, however insane may be the accused, becomes indirectly eliminated. Jurors are not presumed to know the law governing the issues presented. If they were, instructions would probably not be required. I am of the opinion that the Constitution intended that the jury should be sufficiently apprised of every phase of the law governing the case as would enable them fully to determine the course they should pursue under the evidence adduced at the trial. This was not done in this case. Believing that the defendant has been de prived of his constitutional and statutory rights in this respect, I therefore dissent from the conclusions announced by the majority, and think the judgment of the court below should be reversed, and a new trial ordered. (54 Or. 585) KESLER et al. v. NICE et al.t (Supreme Court of Oregon. Oct. 5, 1909.) 1. APPEAL AND ERROR (§ 80*)-"FINAL DE CREE. The "final decree" in partition, within Const. art. 7, § 6, limiting the review by the Supreme Court of decisions of the circuit court to those that are final, is that entered on confirmation of the report of referees. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 450; Dec. Dig. § 80.* For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.] 2. APPEAL AND ERROR (§ 792*)-DISMISSAL WANT OF JURISDICTION. It being patent from the face of the record that the decree in partition is interlocutory, the court will of its own motion dismiss the appeal therefrom for want of jurisdiction. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3138; Dec. Dig. 792.*] Appeal from Circuit Court, Washington County; J. U. Campbell, Judge. Suit by Abraham L. Kesler and others against Charles W. Nice and others. Decree for plaintiffs. Defendants appeal. Dismissed. tenants in common thereof; that on the lot there is a small house, so situated that the premises cannot be divided and the several shares allotted to the persons entitled thereto. The answer denies that the plaintiffs have any interest in the lot, and affirmatively avers that the defendants are the sole owners thereof, and prays for a dismissal of the suit. The cause was submitted to the trial court upon a stipulation of the parties as to the facts, and on July 27, 1909, an interlocutory decree was rendered by the court establishing the rights of the parties in conformity with the averments of the complaint, and directing a sale of the property by a referee named therein. The defendants have attempted to appeal from this decree. W. M. Langley & Son, for appellants. H. T. Bagley, for respondents. SLATER, J. (after stating the facts as above). The jurisdiction of this court to re view the decisions of the circuit court is expressly limited to such as are final decisions. Section 6, art. 7, Const. Finality, therefore, must be put to the suit by the circuit court have the decision therein revised in this before an attempt can properly be made to court. Shirley v. Birch, 16 Or. 1, 4, 18 Pac. 344; Conrad v. Packing Co., 34 Or. 337, 49 Pac. 659, 52 Pac. 1134, 57 Pac. 1021. And This is it has been settled in this court that in suits for partition the only decree that is by the statute declared to be "effectual forever," and "binding and conclusive," and therefore final, is that entered upon confirmation of the report of referees. All orders or decrees in the regular course of proceedings prior to that time are merely interlocutory. Sterling v. Sterling, 43 Or. 201, 72 Pac. 741. the only final decree contemplated by the statute, and the only one from which an appeal will lie. Bybee v. Summers, 4 Or. 354. No objection to the jurisdiction of the court has been suggested by any of the parties, but the want of jurisdiction is patent upon the face of the record; and, the subject-matter of the suit involving the title to realty, it is the duty of the court, at any stage of the proceedings, when the want of jurisdiction appears, to refuse to proceed further, and to dismiss the appeal. Evans v. Christian, 4 Or. 375; McKay v. Freeman, 6 Or. 449, 453; State v. McKinnon, 8 Or. 487, 492. The record should show affirmatively the proper taking of all steps, and the existence of all the facts necessary to confer jurisdiction upon the appellate court. 2 Cyc. 1025. Since the printed abstract upon which the cause is being submitted by stipulation of the The plaintiffs brought this suit for parti-parties, in lieu of the transcript, shows that tion of a lot in the city of Forest Grove, and allege that four of them and two of the defendants are the owners in fee simple and the decree is interlocutory, and not final, the appeal must be dismissed, and it is so ordered. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (55 Or. 227) KREBS HOP CO. v. LIVESLEY et al. (Supreme Court of Oregon. Oct. 5, 1909.) 1. JUDGMENT (8 714*)-RES Judicata-Ques TIONS CONCLUDED. A decision in a former action between the same parties for breach of a contract is res judicata in a subsequent action for a different breach in which issues related to that decided were raised. [Ed. Note. For other cases, see Judgment, Cent. Dig. 1240; Dec. Dig. § 714.*] 2 APPEAL AND ERROR (§ 173*)-REVIEWQUESTIONS NOT RAISED BELOW. Where a contention by defendant as to a construction of a contract was not raised below in any manner, it will not be considered on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1120; Dec. Dig. § 173.*] 3. PLEADING (8 380*)-ISSUES. An allegation of the complaint which was not demurred to, but was denied by the answer, was an issue in the case upon which testimony was admissible. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 1237; Dec. Dig. § 380.*] 4. SALES ( 87*)—EVIDENCE-INTERPRETATION OF CONTRACT CONDUCT OF PARTIES. Where a contract provided for delivery of hops at either of two places, the parties, by permitting the buyer to designate the place of delivery of the first installment, interpreted the contract to permit him to do so, so that in an action thereon parol evidence was admissible to show such conduct of the parties as to the place of delivery. [Ed. Note. For other cases, see Sales, Dec. Dig. 87.*] 5. WITNESSES (8 267*)-DISCRETION OF TRIAL The complaint states that the plaintiff is a corporation, and that the defendants are partners, and avers, in substance, that on August 25, 1904, a contract was consummated whereby the defendants stipulated to buy, and the plaintiff to sell, 500,000 pounds of prime Oregon hops, to be grown on the latter's farm in Polk county, of which quantity 100,000 pounds were to be delivered f. o. b. cars at Independence, Or., or in like manner boat at Murphy's Landing, not later than October 15th of each year from 1905 to 1909, inclusive, for which product the defendants were to pay 14 cents a pound, and to advance on account thereof $2,000 in April, a like sum in May, $6,000 in September, and the remainder when the hops were delivered and accepted; that the designation of the places of delivery was inserted in the contract for the benefit of the defendants, whose duty it was to advise the plaintiff at which place the property should be left; that on previous years they had indicated the locality, with which se lection the plaintiff acquiesced; that, in order to ascertain where the crop so grown in 1907 should be surrendered, the plaintiff about October 10th of that year notified the defendants that it had 100,000 pounds of contract hops for them and requested to be informed at which of the specified places delivery should be made, but defendants re fused to comply therewith, and in the year 1906 had unlawfully attempted to rescind the agreement, and wrongfully declined to receive any hops thereunder; that plaintiff duly performed all the terms of the contract required to be kept by it, and in October, 1907, was able, ready, and willing to transfer to the defendants f. o. b. at either place, 100,000 pounds of prime Oregon hops, grown that year on the farm mentioned, and would have offered to surrender that quantity if the defendants had designated the place where it should be left, but, because of their refusal in this respect, the plaintiff was unable to tender a delivery; that on October 15, 1907, the defendant refused to receive any of the hops or to pay the stipulated price therefor; that at that time hops of the quality so on hand were worth at the places named only 8 cents a pound; and that in consequence of such refusal the plaintiff had sustained damages in the sum of $6,000, for which judgment was demanded. The answer denied the material allegations of the complaint, and averred, in effect, that without the defendants' knowledge or consent the plaintiff about February 1, 1906, sold and conveyed its farm, assigned the contract, and, as collateral security, transferred the sums of money stipulated to be advanced to Ladd & Bush, bankers, which alienations were in violaThis is an action to recover damages for tion of the terms of the contract, in consean alleged breach of a written agreement. quence of which the defendants rescinded [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 923-930; Dec. Dig. § 267.*] 6. SALES (§ 371*) • ACTIONS CONDITIONS PRECEDENT-TENDER OF PERFORMANCE. A refusal before time of performance to comply with the contract, if not withdrawn, relieves the other party of offering to perform before suing thereon, so that where the buyer refused to perform by designating the place of delivery, before time of performance, as required, at which time the seller was ready, able, and willing to deliver, and would have delivered if the buyer had designated the place of delivery, the seller was not bound to tender delivery before suing for breach of the contract. [Ed. Note.-For other cases, see Sales, Cent. Dig. 1087; Dec. Dig. § 371.*] Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge. Action by the Krebs Hop Company against T. A. Livesley and another, doing business as T. A. Livesley & Co. From a judgment for plaintiff, defendants appeal. Affirmed. See, also, 51 Or. 527, 92 Pac. 1084. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes the agreement and so notified Ladd & Bush | Pac. 405; Pacific Biscuit Co. v. Dugger, 42 and the plaintiff. For a second defense it is alleged that on February 1, 1906, Ladd & Bush, with plaintiff's knowledge and consent, notified the defendants of the assignments of such anticipated payments, whereupon they requested a copy of the transfer and a statement of the ownership of the farm from such bankers, but they refused to comply therewith, in consequence of which the plaintiff is estopped, and ought not to be permitted, to allege or prove that the contract has not been violated by it, or that any payments have matured or will accrue thereunder. For a third defense it is alleged that on March 24, 1906, the defendants notified the plaintiff that in consequence of such transfers they abrogated the contract, and that thereafter, and during that year, the plaintiff raised, harvested, and baled more than 100,000 pounds of prime hops, but did not tender or offer to deliver any part thereof to the defendants, who, by reason thereof, were induced to believe that it assented to such rescission, which facts are pleaded in bar of a recovery herein. The allegations of new matter in the answer were denied by stipulation, in lieu of a reply, and, the cause having been tried, judgment was rendered against the defendants, and they appeal. W. M. Kaiser and Wirt Minor, for appellants. John A. Carson and Thos. Brown, for respondent. Or. 513, 70 Pac. 523; Baker County v. Hunt- MOORE, C. J. (after stating the facts as above). An action involving an alleged prior breach of the contract herein was determined by this court, which held that the conveyance of the farm, and the assignment of the advance payments which were to have been made on account of the purchase of the hops did not render it impossible for the plaintiff to perform its part of the agreement, and therefore the alienations made to the bankers did not justify a rescission of the contract by the defendants. Krebs Hop Co. v. Livesley, 51 Or. 527, 92 Pac. 1084. The conclusion thus reached was in a different action, but as it related to one of the issues now raised, and was litigated by the identical parties hereto, we shall take it for granted that such question was finally settled by the former adjudication. "The law," says Mr. Justice Bean in Portland Trust Co. v. Coulter, 23 Or. 131, 133, 31 Pac. 280, 281, "is well settled that a decision of this court upon a point distinctly made becomes in all subsequent proceedings were delivered on the boat. The first year between the same parties concerning the same subject-matter, and upon the same facts, the law of the case by which we are bound whatever our views might be upon an original consideration of the matter." To the same effect are the following cases: It is maintained by defendants' counsel that an error was committed in permitting Conrad Krebs, over objection and exception, to testify as follows: "Q. Now, with reference to this provision in this contract about the place of delivery, what has been the dealings between you and the defendants with reference to that? A. In 1905 they they indicated they wanted the hops delivered to the boat on the river, and we hauled them to the boat. Q. Hauled them there at their request? A. Yes, sir." It is argued that, although the plaintiff demanded to be informed as to which of the specified places their refusal to comply therewith did not to permit these questions to be answered absolve it from the obligation to elect the errors were committed. It nowhere appears place of delivery, or excuse it from making in the bill of exceptions that Krebs or Cara tender thereat. The complaint averred michael had given any testimony that would that on previous years the defendants had have rendered the questions thus asked propdesignated the place of delivery, with which er on cross-examination. An adverse party selection the plaintiff had complied. This may cross-examine a witness as to any matallegation was not challenged by demurrer ter stated in his direct examination, or conbut was denied by the answer, and hence nected therewith. B. & C. Comp. § 849. The testimony in relation thereto was within cross-examination of a witness within the the issues. Whenever the terms of a writ-limit thus prescribed is a matter resting ten contract are imperfect or indefinite, but largely in the discretion of the trial court, the parties to the agreement have acted upon and, before its exercise of such power can be it in a specified manner, they have thereby held erroneous, it must appear affirmativeinterpreted the language employed in a par-ly that the question asked on cross-examticular way, and such construction is bind-ination related to the matters stated by the ing upon them. Howell v. Johnson, 38 Or. witness on his direct examination. That 571, 64 Pac. 659. If but one place of de- fact is not disclosed by the bill of exceplivery had been named in the contract, notions herein, and for that reason we conclude uncertainty could have existed in relation that no error was committed as alleged. to the locality, and in such case, if the defendants had not rescinded the agreement, it would have been incumbent upon the plaintiff to have tendered a delivery of the hops at such place within the time specified. "(1) In view of all the testimony about Holmes v. Whitaker, 23 Or. 319, 31 Pac. the situation of the subject of this contract, 705; Longfellow v. Huffman, 49 Or. 486, 90 and of the parties to it, and their conduct Pac. 907. The contract provided for a de- in respect to the construction, the court will livery of the hops at Independence or at construe this contract set forth in the comMurphy's Landing. It is not to be supposed plaint as making it the duty of the defendthat the plaintiff was required to take the ants to designate the place of the delivery hops to both places for shipment, and hence of the hops under the contract either at Init was necessary for one of the parties to dependence or at Murphy's Landing; and select the locality to which the bales should their failure to designate the place of debe hauled from the farm, and, as the agree-livery within a reasonable time, or as soon ment was silent on this subject, the parties as it could be conveniently done after they thereto have given to it a construction that permitted the defendants to designate the place of delivery, and, this being so, no error was committed in receiving the testimony in relation to the prior transactions respecting the conduct of the parties as to the place of leaving the product agreed to be sold. Exceptions having been taken to parts of the instructions, it is maintained that the court erred in charging the jury as follows: were notified to do so by plaintiff, would constitute a breach of the contract on their part. It was their duty under the contract to designate the place of delivery, and to be present at the place of delivery to receive the hops under the contract. If they refused to do that, that would constitute a breach of the contract, for which they would be liable in damages if the plaintiff had performed its part of the contract. “(2) If you find under the rules of law that I have announced to you that the defendants broke their contract, and that the plaintiff was in a situation to comply with its contract, and was ready, able, and willing to comply with it within the rules I have given you, you would proceed to assess the damages in favor of the plaintiff." Objections were sustained and exceptions reserved to the following questions put to Conrad Krebs, on the ground that answers to the inquiries would not be proper crossexamination, to wit: "In 1907, is it not a fact, Mr. Krebs, that hops were worth more than 15 cents per pound on the 15th day of October, and that is the reason why you did not tender the delivery?" "Is it not true that some one else was interested in the hops along with the Krebs Hop Company, What has hereinbefore been said in relathe hops that were raised on the place?" tion to the admission of testimony respect"Did you deliver this year any hops at either ing the construction placed upon the written Independence or Murphy's Landing for these agreement by the parties to it, imposing defendants?" A similar ruling was made on on the defendants the duty to designate the the same ground respecting the testimony of place of delivery of the hops, will apply to John Carmichael, a witness for plaintiff, who, the first instruction, which announces the having stated on direct examination that he well-settled rule that where a contract is purchased a portion of the hops raised on doubtful or ambiguous, or where it does the plaintiff's farm in the year 1907, was not not expressly provide for the performance permitted on cross-examination to answer of the terms contemplated, and the parties the following question: "Did you buy them to the agreement have themselves given of the Krebs Hop Company?" It is main- to the language used a particular constructained by defendants' counsel that in refusing tion, such interpretation is binding upon * * NONSUIT MOTION [Ed. Note.-For other cases, see Wills, Cent. Dig. § 767; Dec. Dig. § 324.*] 5. TRIAL (§ 160*) GROUNDS. Plaintiff is ordinarily entitled to a motion specifying the grounds on which a nonsuit is asked, that he may, by amendment or further proof, supply the suggested defect. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 368; Dec. Dig. § 160.*] 6. APPEAL AND ERROR (§ 213*) — QUESTIONS NOT RAISED AT TRIAL. them. Central Trust Co. v. Wabash, etc., | court would have been bound to set aside a Ry. Co. (C. C.) 34 Fed. 254; Reissner v. verdict in favor of the contestant, it could refuse to submit the case to the jury. Oxley, 80 Ind. 580; Hosmer v. McDonald, 80 Wis. 54, 49 N. W. 112. The second instruction seems to be consonant with the rule stated in Longfellow v. Huffman, 49 Or. 486, 491, 90 Pac. 907, 909, where Mr. Chief Justice Bean says: "A declaration by one party to a contract, made prior to the time fixed for the performance, that he will not comply with such contract, if not withdrawn, may dispense with or excuse an offer to perform by the other party before bringing his action. * But it does not ordinarily excuse ability to perform." The bill of exceptions shows that the plaintiff offered in evidence a notice of rescission issued by the defendants March 24, 1906, and also proved that on October 15, 1907, and prior thereto, it had on hand, and was ready, able, and willing to deliver 100,000 pounds of prime hops, grown on its farm that year, and would have tendered a delivery thereof if the defendants had designated the place where the hops should be left. These facts bring the case within the rule last stated, and no error was committed in giving the instruction. Others errors are assigned, but, deeming them unimportant and that the legal questions involved were settled in the former action, the judgment is affirmed. (156 Cal. 257) In re HIGGINS' ESTATE. (L. A. 2,411.) (Supreme Court of California. Sept. 8, 1909. Rehearing Denied Oct. 8, 1909.) CONTEST - NONSUIT 1. WILLS (8 324*) [Ed. Note.-For other cases, see Wills, Cent. Dig. 769; Dec. Dig. § 324.*] 2. WILLS (§ 324*)-CONTEST-NONSUIT-ISSUES -WITHDRAWAL FROM JURY. Withdrawal of an issue of undue influence in a will contest from the jury, at the close of the evidence, was equivalent to an order granting a nonsuit as to one of the causes of action. [Ed. Note.-For other cases, see Wills, Cent. Dig. 769; Dec. Dig. § 324.*] Where a defect urged to support a nonsuit is one which might have been cured if called to plaintiff's attention, defendant cannot arge it for the first time on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1307; Dec. Dig. 213.*] 7. APPEAL AND ERROR (§ 1061*)-Erroneous NONSUIT-PREJUDICE. Where the defect in contestant's case in a will contest is incurable, in so far as the claim Court will not order a reversal because of erof undue influence is concerned, the Supreme ror in granting a nonsuit without formal motion therefor, merely that the case may be submitted to the jury on that issue. Error, Cent. Dig. § 4210; Dec. Dig. § 1061.*] [Ed. Note. For other cases, see Appeal and 8. WILLS (8 324*)-UNDUE INFLUENCE-EVI DENCE. Evidence held insufficient to justify submission of the issue of undue influence in the will contest to the jury. [Ed. Note.-For other cases, see Wills, Cent. Dig. 769; Dec. Dig. § 324.*] 9. WILLS (§ 166*)-CONTEST-UNDUE INFLUENCE-PRESUMPTION. Testator, before executing his will, consulted an attorney who visited him for that purpose. At this interview no member of his family but his wife was present. His wife's community interest was explained to him to consist of one-half of the estate, which he declared would be sufficient for her, and he then, after discussing the matter with the attorney, determined the shares to be given his children. Held sufficient to overcome the presumption of undue influence arising from confidential relations between testator and the child receiving the largest share, coupled with activity on his part in preparing the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 424; Dec. Dig. § 166.*] 10. WILLS (§ 155*)—EXECUTION-UNDUE IN FLUENCE. stroy testator's free agency at the time and in Undue influence, to avoid a will, must dethe very act of making the testament. [Ed. Note.-For other cases, see Wills, Cent. 3. WILLS (§ 324*)-CONTEST-Grounds-WITH- Dig. § 375; Dec. Dig. § 155.*] DRAWAL FROM JURY. Where probate of a will was contested on the ground of undue influence and testamentary incapacity, the court, in the absence of a request by the proponent, should not have taken the issue of undue influence from the jury on the theory that the evidence was insufficient to justify its submission. [Ed. Note. For other cases, see Wills, Cent. Dig. § 769; Dec. Dig. § 324.*] 4. WILLS (§ 324*)-CONTEST-SUBMISSION TO JURY. Where the evidence in a will contest is so conclusive in favor of the proponent that the 11. WITNESSES (§ 198*)-COMPETENCY-ATTORNEY-PRIVILEGE. In a will contest an attorney testified that he had been requested by proponent to draw a deed to be executed by testator conveying all his property to proponent; that he prepared the paper, but testator refused to sign it, and versation with proponent. Held, that there beon the following day witness had another coning evidence that the relation of attorney and client existed between proponent and attorney, the details of the last-mentioned conversation and concerning the balance of the first conversation were privileged under Code Civ. Proc. |