'But in this case, conceding all that is alleged by way of inducement to be true, the writing does not appear to have been defamatory or libelous. It is by the innuendo, taken in connection with the inducement and the alleged libelous matter, that the plaintiff seeks to sustain his complaint. In this class of actions the ordinary rule undoubtedly is that the words claimed to be libelous are to be construed according to their ordinary and usual import and meaning. It is only where the meaning is doubtful or equivocal that the pleader may, by innuendo, point the language to the sense in which he wishes it to be understood. Townsh. Sland. & L. § 142. The libelous words charged are: "The insulting remarks offered to our representative manager, Mr. B. Neustadter by your adjuster, O. H. Cole, at his office, in the matter of Le Lee & Co., warrants us to with. hold any new business from your local agent here." Innuendo: "That the defendants meant and intended by said letter to impute to this plaintiff a lack of business ability and skill necessary to properly conduct his said business and to adjust said loss, and to transact said business of an adjuster of fire losses, and lack of honesty and integrity in his said business, and that the plaintiff was not a fit, proper, or competent person to be employed in said business, and that, if the plaintiff was so employed in the future, the defendants would withhold all business and patronage of their own, and such business and patronage as they could control, from any and all insurance companies continuing to employ the plaintiff; and that the same was so understood by those by whom it was received, and to whose knowledge it came, as aforesaid." The office of an innuendo in pleading is well understood. It may serve for an explanation,-to point a meaning where there is precedent matter, expressed or necessarily understood known, but never to establish a new charge. It may apply what is already expressed, but cannot add to, enlarge, or change the sense of the previous words. Barham v. Nethersall, Yel. 22; Van Vechten v. Hopkins, 5 Johns. 211; Hays v. Mitchell, 7 Blackf. 117; Patterson v. Edwards, 2 Gilman, 720; Weed v. Bibbins, 32 Barb. 315; Thomas v. Croswell, 7 Johns. 264; McClaughry v. Wetmore, 6 Johns. 82; Holton v. Muzzy, 30 Vt. 365; Bell v. Publishing Ass'n, 3 Abb. N. C. 157. The colloquium, or matter by way of inducement, is pleaded at great length in the complaint, but there are no facts alleged tending to show that the language used in the alleged libel could have any such signification as is averred in the innuendo. The words themselves have no such import, and the extrinsic facts alleged do not show that they were used in any such sense. The words are not equivocal in themselves, have no covert meaning, are plain and unambiguous. In such case they must be taken to have been used in their ordinary signification, and no authority can be found for allowing their meaning to be totally changed by means of an innuendo. The words used make no defamatory charge against the plaintiff. For a reason which appeared sufficient and sat

or

isfactory to the defendants, they proposed, in the future, to withhold new business. This they had the right to do, whether the reason given was such as ought to have influenced business men or not. They had the right to do it without giving any reason. Payne v. Railroad Co., 13 Lea, 507; Cooley, Torts, pp. 278, 688. In whatever light the appellant's contention may be regarded, we think it is not sustained by authority, and that the court below did not err in sustaining the demurrer; and its judgment must be affirmed.

(22 Or. 182)

STEWART v. ALTSTOCK. (Supreme Court of Oregon. March 29, 1892.) PUBLIC LANDS-PATENTS-ATTACK BY HOMESTEAD CLAIMANT-PLEADING.

While a homestead claimant is in such

privity with the title of the United States that he may attack a patent for the land, still his complaint must show that the land was unappropriated public land of the United States; that he was a qualified claimant within Rev. St. U. S. § 2289; and that he had complied with the provisions of section 2290; and a mere general statement that he had taken the proper and necessary steps towards obtaining and perfecting title thereto under the general homestead laws presents no material fact.

Appeal from circuit court, Multnomah county; LOYAL B. STEARNS, Judge.

Cross-bill by Thomas Stewart against Marks Altstock for injunction, etc. From a decree entered on the overruling of a demurrer to the complaint defendant appeals. Reversed.

The other facts fully appear in the following statement by STRAHAN, C. J.:

This litigation was originally commenced by the present defendant against the plaintiff herein, and was in the form of an action of ejectment to recover all of lot No. 37 and the south four-fifths of lot No. 13, in the city of Eastwood, county of Multnomah, state of Oregon. The defendant in that action filed his answer substantially admitting that he was without a defense at law, but alleged that he was entitled to the interposition of a court of equity to make good his defense, and thereupon, as plaintiff, filed his cross-bill, by which he alleged in substance that the real property sought to be recovered in the original action is a part of the N. W. 4 of section 5, in township 1S., range 3 E., Willamette meridian; that said real property was covered and included in the grant of land made to the Northern Pacific Railroad Company by act of congress of July 2, 1864, entitled "An act granting lands to aid in the construction of a railroad and telegraph lines from Lake Superior to Pu get Sound, on the Pacific coast, by the northern route," and the acts and joint resolutions of congress supplementary thereto, and that by virtue of said grant the title to said land was conveyed to the Northern Pacific Railroad Company; that the congress of the United States, by act of July 25, 1866, entitled "An act granting land to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad in California, to Portland, Oregon," and an act amendatory thereof, (July 25, 1868,) granted certain lands to the Oregon Central Railroad

Company, and that the Oregon & California Railroad Company, as successor to the said Oregon Central Railroad Company, erroneously, falsely, fraudulently, and illegally claimed the land mentioned in the said complaint and first above described as being covered by said lastnamed grant, and belonging to it, the said Oregon & California Railroad Company, by reason and virtue of said grant; that the said Oregon & California Railroad Company erroneously, falsely, and fraudulently selected, listed, and certified the said land first above described as belonging to and included in its said grant; that the official agents of the United States, whose duty it was to carry into effect said grant, and execute conveyances to the lands conveyed thereby when earned, relying upon and believing such false and fraudulent representations, caused to be executed and delivered a patent and conveyance of said parcel of land first above described to the Oregon & California Railroad Company on the 7th day of May, 1871, which conveyance was first recorded in the records of eeds of said county and state on the 3d day of February, 1891; that the defendant herein, Marks Altstock's, only claim to said real estate is by virtue of claiming by mesne conveyances from and under the said Oregon & California Railroad Company; that the said real property never was included in or covered by the said grant of July 25, 1866, under which the said Oregon & California Railroad Company and its successors claim, and that neither the said company nor its successors, nor any of them, ever had any title thereto; that said conveyance from the United States to the Oregon & California Railroad Company was irregularly, erroneously, and illegally issued and made, and was issued and made by mistake, in the belief and with the intention of conveying only such land as was included in the last named grant, and that such conreyance was and is void; that the line of definite location of said Northern Pacific Railroad was duly fixed opposite said land, and maps of the routes of said road duly filed in the proper office of the land department of the United States prior to the time that the Oregon Central Railroad Company or its successors did the same as to the grant of the said last-named company; that the congress of the United States, by an act of September 29, 1890, entitled "An act to forfeit certain lands heretofore granted for the purpose of aiding in the construction of railroads, and for other purposes," duly forfeited to the United States that part of the said grant of the Northern Pacific Railroad Company which embraced and covered the parcel of land herein first above described, and that the same then became, and ever since has been, government land, and the sole property of the United States, open to homestead settlement, subject only to the rights of this plaintiff as hereinafter stated, of all of which foregoing facts the defendant had due notice; that this plaintiff settled upon and took possession of the said real estate on the day of April, 1891, as a homestead under the settlement laws of the United States, and ever since has been and

now is in the exclusive and actual possession of the same, and has taken and now is taking the proper and necessary steps towards obtaining and perfecting title thereto from the United States under the general homestead laws. Wherefore this plaintiff prays that said proceedings at law be stayed, and, upon trial, for a decree perpetually enjoining the same by final decree, and decreeing that the said patent and conveyance from the United States to the Oregon & California Railroad Company, so far as it affects the parcel of land mentioned in the said complaint and first above described herein, and all conveyances therefor subsequent to said patent, to be null and void; that the plaintiff is entitled to the possession of said land, and to his costs and disbursements herein, and for such other and further relief as may be equitable. The defendant demurred to this complaint, which being overruled, a final decree was entered in favor of the plaintiff, from which the defendant appealed.

J. V. Beach, for appellant. V. K. Strode, for respondent.

STRAHAN, C. J., (after stating the facts.) The questions presented by this appeal arise on the demurrer to the cross-bill, and to that our attention must be directed. It appears from this complaint that the real property in controversy lies within the grant made by congress to the Northern Pacific Railroad Company. By act July 2, 1864, (13 St. c. 217, p. 365,) congress incorporated the Northern Pacific Railroad Company, and after providing for the organization of said corporation, defining the line of its road, the third section of the act made a grant of land to aid in its construction. By this section congress granted to said company, by its corporate name, for the purpose of aiding the objects of said corporation, every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and 10 alternate sections per mile on each side of said railroad where the line thereof passes through any state and the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office. St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. Rep. 389, the supreme court considered the nature of this grant, and held it to be a grant in præsenti, in the nature of a float until the route should be determined, and after that attaching to specific sections, capable of identification, except as to sections which were specifically reserved. And in Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. Rep. 100, the construction of this grant was again before the court, and it was held that where the general route of the road provided for in section 6 of the act of July 2, 1864, was fixed, and information thereof was given to the land department

In

by filing a map thereof with the secretary of the interior, the statute withdrew from sale or pre-emption the odd sections to the extent of 40 miles on each side thereof; and by way of precautionary notice to the public an executive withdrawal was a wise exercise of authority. The statute and these authorities, taken in connection with the allegations of the complaint, are sufficient to show that the lands in controversy were separated and severed from the public lands of the United States by the location of the line of the road and the filing of a map or plat thereof in the proper land department at Washington.

The next question requiring attention is the effect of the act of July 25, 1866, granting land to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad in California to Portland, Or., (14 St. at Large, p. 239.) By this act every alternate section of public land not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile (10 on each side) of said railroad line were granted, and it is by virtue of this grant that the defendant claims title. By this act congress granted public land only, and not land that had been theretofore granted or appropriated by authority of congress in any way. Said grant did not extend to or include any lands not public, and no lands not included or covered by the terms of the grant could pass thereunder. In Newhall v. Sanger, 92 U. S. 761, construing a similar grant, the court said: "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws; that they were so employed in this instance is evident from the fact that to them alone could the order withdrawing lands from pre-emption, private entry, and sale apply." And it was held, in the early case of Wilcox v. Jackson, 13 Pet. 498, that a tract lawfully appropriated to any purpose becomes thereafter severed from the public lands, and that no subsequent law or proclamation will be construed to embrace it or to operate upon it, although no exception be made of it; and this doctrine was reaffirmed in Leavenworth Railroad Co. v. U. S., 92, U. S. 733. And this court, in Brown v. Corson, 16 Or. 388, 19 Pac. Rep. 66, and 21 Pac. Rep. 47, in construing the terms of the grant now under consideration, in effect held that a piece of land that had been pre-empted prior to the time the company's right attached under the grant, though within the limit and in an odd section, was excepted out of the grant, and that the railroad company acquired no rights to such land, even if the same were afterwards abandoned, and no attempt made by the pre-emption claimant to perfect his title by compliance with the law. And a subsisting homestead entry, valid upon its face, whose legality has been passed upon by the land authorities, and their action remains unreversed, precludes it from a subsequent grant by congress. Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. Rep. 112. The question we have to consider, then, is the effect to be given to a patent issued for lands not granted, or

that were excepted out of the grant under which the patent issued. In such case the patent passes no title, and is simply void. Morton_v. Nebraska, 21 Wall. 660; Sherman v. Buick, 93 U. S. 209; Doe v. Winn, 11 Wheat. 380: Field v. Seabury, 19 How. 323; Simmons v. Wagner, 101 U. S. 260; Kissell v. President, etc., 18 How. 19; Foss v. Hinkell, 78 Cal. 158, 20 Pac. Rep. 393; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228; Stoddard v. Chambers, 2 How. 284, 317; Reichart v. Felps, 6 Wall. 160. The plaintiff has not yet shown himself to be a qualified homestead claimant, nor has he shown any compliance with the law granting homesteads to actual settlers upon the public lands of the United States, or that the lands in controversy were public lands of the United States, and open to settlement under the homestead act; but assuming for the present that he night do so by an amendment of his complaint, and the question is presented whether or not he would be in such privity with the title of the United States as to enable him to attack the patent under which the defendant holds, and show its invalidity. On this point we had some doubt at first, but the authorities seem to go to that extent. Foss v. Hinkell, supra, was a case involving this principle, and it was held that the claimant stood in such relation to the land that he might attack a void patent which had been issued to the railroad company, through which the adverse party claimed title. Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228. In the latter case the court held that in an action at law such extrinsic facts may be proven as tend to show the patent is void.

But the important question remains. It is not to every person indiscriminately that the privileges of the homestead act are extended. It is confined to any person who is the head of a family, or who has arrived at the age of 21 years, and is a citizen of the United States, or who has filed his intention to become such, as required by the naturalization laws; or he must be a person owning and residing on land, who is allowed to enter other land lying contiguous to his land, which shall not with the land so already owned and occupied exceed in the aggregate 160 acres. Rev. St. U. S. § 2289. The plaintiff's complaint is fatally defective for the reason that the langage employed fails to bring the plaintiff within the words of this section. Unless he is such a person as is specified in some one of the clauses of this section it could not be claimed that he acquired any rights by virtue thereof. To enable a person in all respects qualified under section 2289, supra, to acquire the rights and status of a homestead settler he must show a compliance with section 2290, Rev. St. U. S. By that section any person applying for the benefit of the preceding sec tion shall, upon application to the register of the land-office in which he is about to make such entry, make affidavit before the register or receiver that he is the head of a family, or is 21 years or more of age, or has performed service in the army or navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the

actual purpose of settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person, and, in addition, he must show the lands were unappropriated public lands of the United States. The complaint is defective in failing to show a compliance with this section. It could hardly be contended that a person could acquire a title to the public lands of the United States without a compliance with the statutes under which such right is alleged to have been acquired. It is true, the complaint alleges that the plaintiff has taken, and is now taking, the proper and necessary steps towards obtaining and perfecting title thereto from the United States under the general homestead laws; but this allegation presents no material fact. What are the proper and necessary steps in such case is purely a question of law, and to enable the court to determine that question the facts must be alleged; that is, the plaintiff must allege what he did in that behalf, and then the court can determine whether the steps taken are proper and necessary. The principles announced in Larsen v. Railway & Nav. Co., 19 Or. 240, 23 Fac. Rep. 974, tend to this result. It might be assumed that these defects could be supplied or obviated by an amendment of the complaint in the court below, and if it appeared possible we would feel constrained to remand the cause so that the plaintiff could, if so advised, apply to that court for such permission; but in this case such a step could not avail him. To give him any standing to contest the defendant's title within the rule laid down by the authorities on that subject he must be able to allege, in addition to the matters above enumerated, that at the time of his settlement the lands in controversy were unappropriated public lands of the United States. Unless they were so, by the very language of the homestead act, they could not be settled upon or taken by virtue of its provisions. Whether the defeudant is within the act of March 3, 1887, (Supp. Rev. St. U. S. p. 313,) or the provisions of the act of Sept. 20, 1890, (Supp. Rev. St. U.S. p. 808,) we do not find it necessary to determine. The facts are not now before us sufficient to enable us to determine that question. That the present plaintiff shows himself not to be entitled is as far as we need inquire. It follows from what has been said that the decree appealed from must be reversed, and the cross-bill dismissed.

(3 Wash. St. 737)

PARK V. MIGHELL et al. (Supreme Court of Washington. Feb. 19, 1892.) ASSUMPSIT-COMMISSIONS TO AGENT-REPORT OF REFEREE-JUDGMENT ON INDEMNITY BOND.

1. An action by an agent against his principal for commissions is not an action for money had and received, but for money due; and an allegation in the complaint in such an action, that the principal has collected the proceeds of sales made by the agent and has appropriated them to his own use, does not charge a conversion.

2. In an action for commissions it appeared that plaintiff was employed as agent to obtain orders for safes on a blank form furnished to him; that where the sale was for cash the conditions of the order made no difference, but where a sale was on time it was expressly stip

ulated that the title to the safe should not pass until the whole price was paid; that his compensation was to be whatever he could obtain for goods above a certain percentage, which was to be net to his employer: and that he was to receive $50 every week, which was to be charged against his commissions when earned. Held, that the commissions of the agent on safes sold on time were not earned when the order was taken, but became due as payments were made to his employer.

3. In an action for commissions amounting to $758.96, defendant counter-claimed for $521.27; and a referee, who was appointed and charged to find the facts and the law, found simply that plaintiff was entitled to $300, and recommended judgment in that amount. Held, that a judgment confirming the report of the referee would be reversed on appeal, as the report should have stated what items the referee allowed for and against each party.

4. A referee's fee of 20 cents per folio for taking testimony,, as allowed by Code, § 514, is not increased by the employment of a stenographer and type-writer to act as amanuensis to the referee.

5. Hill's Code, § 317, providing that the indemnity bond of a defendant in an attachment proceeding "shall be part of the record, and, if judgment go against defendant, the same shall be entered against him and sureties," authorizes judgment against the sureties without notice to

them.

ty: FRANK ALLYN, Judge. Appeal from superior court, Pierce coun

Action by R. J. Park against W. E. Mighell and D. Richards, copartners, for commissions. Plaintiff attached defendment defendants gave an indemnity bond, ants' property, and to release the attachwith Charles Wilson and H. O. Piercy as sureties. Judgment for plaintiff, entered on the report of a referee. Defendants and their sureties appeal. Reversed.

H. W. Lueders, for appellants. Thomas Carroll and Charles Lytle, for respondent.

STILES, J. The respondent insists that this is an action for money had and received, but we do not so view it. The money received by the appellants from the purchaser of each safe belonged to them, and their relation to respondent was that of debtors for his earned commissions. The allegations to the effect that appellants had collected certain sums, the proceeds of sales made by respondent, and appropriated them to their own use, did not charge a conversion. It was all their money, and they had a right to appropriate it. These allegations need not have been made, but, being made, they did not change the cause of action, and it remained an action for commissions simply.

The contract under which respondent went to work for the appellants was, in substance, that he was to obtain written orders for safes on a blank form furnished him. Where the sale was for cash, the conditions of the order made no difference; but, wherever there was a sale on time, it was expressly stipulated that the title to the safe should not pass until the whole price was paid. Time was of the essence of the contract, and all payments made were to be taken as forfeited in case there was a failure to make any additional payment, and the safe might be retaken. A list of prices of safes was furnished respondent, and his compensation was to be whatever he could obtain for goods above

a certain percentage, which was to be net to his employers. In some cases he was to pay freight. The main question here arises as to when his commission was earned, for, after pursuing the business five or six months, he suddenly quitit; and this suit was for the full amount of all his commissious for all orders taken by him, up to the day of his stopping work, with out regard to whether any money had been collected by his employers or not. The appellants, however, contend that they were to pay him only as they were paid. The referee found for the respondent on this point, but we are unable to agree with him. The complaint, in the first place, was not drawn upon that theory, as is clearly shown, by the care which is taken to allege that all the money had been collected by appellants for safes sold, SO as to cut off any defense on that ground. Again, it was stipulated that respondent should receive $50 every seven days, which was to be charged up against his commissions when earned,-an arrangement which it was idle to make if, the moment he sent in an order which was accepted, he became entitled to be paid a commission in cash. The evidence, so far as it shows anything conclusively, is all against the respondent in this matter. His own statement of his understanding of the contract is his way, of course, but there is nothing in the facts to justify his construction of the agreement.

The cause should be retried upon the following construction of the contract: (1) Respondent was entitled to have $25 per week for the two weeks he worked at Seattle, and whatever he earned in commissions above that amount. (2) For each additional week he was engaged until he quit work he was entitled to $50. (3) For each safe sold for cash he should be at once credited with his commission. (4) At each payment made upon a safe sold on time he should be credited with his proportion of it as commission earned by him; this should apply to safes returned or retaken, the sum received as rent being considered as the proceeds of a sale. (5) Where orders were not accepted, or the purchasers refused to take and pay anything for the safes, there was no commission earned. (6) Respondent should not be charged with attorney's collection fees or the costs or expenses of suits. No reduction from the original percentage allowed respondent should be made, unless, before the sale in which it is made, he had notice from appellants that such reduction would be made upon that class of goods. (8) Freights for which respondent was chargeable should be debited to him when the amount was paid. (9) The $50 per week advanced should be treated as a guarantied commission or salary, not to be returned, except by charging it against commissions earned. (11) No interest should be allowed to either party.

(7)

We reverse this case, because it is an action at law tried by a referee, who was charged to find the facts and the law. He found no facts, except those pertaining to the making of the contract and its terms. If he had found the other facts, we

might ourselves be able, under the view we take of the law, to reach a proper judgment. But it is not our duty to wade through this mass of figures and explanations to reach a statement of these accounts which the referee was employed to make. The court below should have refused to receive or consider the report of the referee until the facts in detail were found, and should have returned the testimony to him for that purpose. The amount sued for was $758.96, and the defendants set up a counter-claim for $521.27. The referee simply finds that the plaintiff is entitled to $300, and recommends judgment in that amount. He must have had some data from which to arrive at that sum, and he should have given the court the benefit of them by stating clearly what items he allowed for and against each party. In other words, he should state the account between them. It is only by so doing that the court can intelligently review his action, and decide whether to confirm or reject it. Code, § 254.

The matter of the fees of referees is fixed by section 514 of the Code, and it would seem that in this case an excessive fee was allowed. The same section limits the rate per folio for taking testimony to 20 cents. In this case a larger price was charged and allowed. “Two copies" are included in the bill, and they probably increase the apparent rate. But the referee's fee is simply for writing the testimony. If he employs a stenographer and type-writer to act as bis amanuensis, the fee is not in. creased.

Judgment against the sureties upon a forthcoming bond, in an action where an attachment is levied, is authorized by the statute, without notice to them. The brief of appellants fairly bristled with points which have no foundation in the record, either before the court or the referee, and we cannot notice them here. The judgment is reversed, and a new trial granted upon the testimony taken before the referee.

ANDERS, C. J., and HOYT, DUNBAR, and SCOTT, JJ., concur.

Code 1881, c. 143, providing for assignments by insolvent debtors, and that no assignment of any debtor otherwise than as therein provided shall be legal or binding as against creditors, does not include assignments by corporations, and a common-law assignment by an insolvent corporation is valid.

Appeal from superior court, Pierce county; FRANK ALLYN, Judge.

Action by H. J. Nyman against John W. Berry for an injunction and the cancellation of a deed of assignment made by the Tacoma Brick Company to the defendant

Hill's Code, § 317, provides that defendant's indemnity bond in an attachment proceeding "shall be part of the record, and, if judgment go against the defendant, the same shall be entered against him and sureties."

'Rehearing denied.