(182 P.) [2] Prior to the passage of the amendment of 1917, the mortgagor, if he had not parted with his title to the property, had one year a mortgage, where no right of redemption pre-ed that these provisions were void as to viously existed, or which extends the period of him, because they impaired the obligation redemption beyond the time formerly allowed, of a contract. It was held in substance that cannot constitutionally apply to a sale under a Hooker, being an independent purchaser, was mortgage executed before its passage." not in privity with the original mortgagee; that as the original mortgage debt had been paid in full, from the sale of the property, and the mortgagee had not been a purchaser at the sale, he was not affected by a technical violation of a contract, which violation could not possibly injure him; and that a discussion of whether the contract-as between him and the mortgagor-had been impaired would be purely academic. Concluding this branch of the discussion, the within which to redeem. This was the situa court said: "The question of the impairment of the mortgage contract, therefore, is not before us as between mortgagor and mortgagee.” tion when the mortgage in question was executed. By the terms of the act of 1917, it was provided that, upon the happening of a certain contingency, namely, the failure of the property to bring the amount of the mortgage when sold, the judgment debtor should be permitted to redeem, and he should, after the expiration of one year, have ten days additional time within which to make such redemption. This constitutes a clear extension of the time for redemption from one year to one year and ten days, and also gives the mortgagor a right of redemption where no such right existed before. In our judgment, such extension cannot apply to a mortgage executed before the last-mortgagor and mortgagee, his rights are to be named statute was enacted. The court says further: "We are of the opinion that, as to the plaintiff in error, an independent purchaser at the foreclosure sale, having no connection whatever with the original contract between the determined by the law as it existed at the time The case of Hooker v. Burr, 194 U. S. 415, 24 Sup. Ct. 706, 48 L. Ed. 1046, is relied upon by counsel for defendant as modifying, in some degree, the rule laid down in Barnitz v. Beverly, supra; but we do not see that it in any way sustains defendant's contention here. In that case Spencer and wife mortgaged property to Swiggert, who assigned the mortgage to Bishop, who brought suit thereon and caused Burr, the sheriff, to sell the mortgaged premises. Hooker, who had no connection with the mortgage or any lien upon the land, purchased the property at the sale for a sum greatly in excess of the amount of the mortgage. One Rhodes, who was a judgment creditor of Spencer, the mortgagor, assumed to redeem by paying to the sheriff the amount of the purchase price paid by Hooker, together with 1 per cent. per month interest, as required by the statute then in force. This the sheriff accepted, but Hooker refused to receive it, and thereafter Burr executed a deed to Rhodes. Hooker brought a suit to set this deed aside for the alleged reason that when the mortgage was executed the law of California provided that a judgment debtor, or redemption. er might redeem from the purchaser at a foreclosure sale at any time within six months after the sale, by paying the purchase money and 2 per cent. interest; and that in the case then at bar the redemptioner had al- The sum of the whole opinion seems to be lowed more than six months to elapse and that, as between the mortgagor or his ashad paid the purchase money only and 1 per signee and the mortgagee, such mortgagee cent. interest. It appeared that after the or his assignee has the right to insist upon execution of the mortgage, but before the redemption, according to the requirements foreclosure and sale, the law had been of the statute in force at the time the mortamended so as to permit a redemption with-gage was executed, but that an independent in one year and reducing the interest from purchaser at the mortgage sale has no such 2 per cent. to 1 per cent. Hooker contend- privity with the contract between the mort We agree "The purchaser must found his rights upon the law as it existed when he purchased. An dice, would be a different thing. alteration after he had purchased, to his prejuCooley on Const. Limitations (4th Ed.) 356. that the law existing when a mortgage is made enters into and becomes a part of the contract, but that contract has nothing to do, so far as this question is concerned, with the contract of a purchaser at a foreclosure sale having no other connection with the mortgage than that of a purchaser at such sale. His rights regarding matters of redemption are to be determined as we have stated." gagor and mortgagee, as entitles him to insist on redemption in accordance with the law existing at the time of execution, but, on the contrary, will take the property subject to the provisions of the law in force at the time of the sale. [3] The logic of the opinion seems, to the writer, to be questionable; but it is the decision of the highest court of the land upon a question arising under the Constitution of the United States, and this court must accept it. plaint and decree describe it as situated in "Blackstone's addition." It is admitted in the petition and writ that the property sold was the idéntical property mortgaged. The names "Blackistone" and "Blackstone" are so similar as to come fairly within the rule of idem sonans. A judgment will be entered directing the sheriff to execute a deed to the petitioner. BER CO.* (93 Or. 386) (Supreme Court of Oregon. July 1, 1919.) 1. APPEARANCE 8(3)-DEFECTS IN PROCESS -WAIVER-ANSWER UPON MERITS. The filing of an answer upon the merits constitutes a voluntary appearance and a waiver of any defect in the service of summons, though plea in abatement challenging jurisdicmerits, notwithstanding L. O. L. § 74, as amendtion of the person is joined with plea to the ed by Laws. 1911, p. 144. 2. EVIDENCE ~442(6)—WRITTEN CONTRACT— SALES-NEGOTIATIONS. Where written order constituted complete contract, evidence of letters and telephone conversation between the parties during the negotiations, whereby it was agreed that terms should be different from those contained in the written instrument subsequently signed, was not admissible. 3. SALES 418(2)-FAILURE TO DELIVERMEASURE OF DAMAGES. The case at bar stands upon a different DUNCAN LUMBER CO. v. WILLAPA LUMfooting. Here the mortgagee was the purchaser at the foreclosure sale. The property did not bring the amount of the mortgage. On May 2, 1919, Mrs. Rosin conveyed to petitioner herein all her right, title, and interest in the property which, in effect, conveyed all her rights arising under the certificate of sale executed to her when she purchased the property. Plaintiff was not an independent purchaser at the sale, but derived its right through Mrs. Rosin, the original mortgagee, and stood in her shoes. As Mrs. Rosin had a right to insist on redemption within a year from the confirmation of the sale, petitioner, as her successor, had the same right. The fact that Mrs. Rosin succeeded in collecting the deficiency due her from the mortgagor by subsequently levying upon and selling other property of the mortgagor can make no difference in the result. By virtue of the law existing at the time of the execution of the mortgage, which law was just as much a part of the contract as if it had been written into it, Mrs. Rosin was entitled to receive a deed at the end of the one year from the confirmation of the sale, if a sale of the property should become necessary. The law then specified no contingency under which this time could be extended. If it was competent for the Legislature, after the mortgage had been executed, to extend the time for redemption ten days, there is no logical reason why it could not extend it for a year, or even for a longer period. The length of time which a purchaser at a foreclosure must wait after confirmation before he can secure a full and indefeasible title to the premises offered for sale might, and frequently would, influence him in making his bid. The law of the contract gave the mortgagee the right to receive a deed for the premises at the end of one year from the confirmation of sale. The law of 1917 extended this time to one year and ten days if a certain contingency should happen. To this extent it impaired the contract and is therefore inapplicable. The measure of damages for failure to deliver merchandise, in accordance with contract, if the articles have a market value, is the difference between the contract price and the market value at time and place of delivery. 4. SALES 418(7)-FAILURE TO DELIVERDAMAGES-PURCHASE OF GOODS ELSEWHERE. While buyer is not required to go into the market and purchase goods elsewhere before bringing his action for seller's failure to deliver, he may, if he sees fit, do so, and if in a successful effort to minimize the damage he incurs expense, he may recover such expenditures as an element of damages, so long as the total the contract price and market price. recovery does not exceed the difference between 5. APPEAL AND ERROR HARMLESS ERROR. 1050(2)—REVIEW— In buyer's action for seller's failure to deliver spruce lumber, admission of evidence as to market value of higher grade of spruce than that called for by the contract was harmless to seller, where only effect of such evidence was to explain prevailing high price of all grades of spruce. 6. SALES 181(11)-FAILURE TO DELIVER— EXTENSION OF TIME FOR DELIVERY-EVIDENCE. [4] Another question is raised in regard to the sufficiency of the decree to support a sale. It appears that the mortgage described the In buyer's action for seller's failure to deproperty as situated in "Blackistone addi- liver, evidence as to agreement to extend time tion" to the city of Portland, while the com- for delivery held sufficient. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied 183 Pac. 476. (182 P.) In buyer's action for seller's failure to deliver, where there was evidence of agreement to extend time of delivery, seller's letter to buyer, declining to make further deliveries, was admissible to fix date of breach. 8. APPEAL AND ERROR 7. SALES 181(9)-FAILURE TO DELIVER was $75 per thousand feet, which allegaDATE OF BREACH-EVIDENCE. tion is followed by computations showing that the difference between the contract price and the market price at that date was $11,928.18, which plaintiff fixes as the amount of his loss. It should also be observed that the complaint further alleges that the defendant is a Washington corporation, having its principal place of business at Raymond, Wash., "and carrying on and transacting business and sales of its products in the state of Oregon; that it has not appointed any attorney in fact or resident agent upon which service or other process may be had." 970(3)-DISCRETION OF COURT-REBUTTAL TESTIMONY. Discretion of court in admitting evidence designed to prove original cause of action, by plaintiff on rebuttal, is not reviewable in absence of manifest abuse. 9. TRIAL 63(2) REBUTTAL EVIDENCE DISCRETION. Service of summons was made by serving it personally upon Howard Jayne, secretary of the defendant corporation, during his temporary visit to Portland. Thereafter defendant appeared specially, with a motion to In buyer's action for seller's failure to deliver lumber, where evidence as to market value was allowed to take a wide range upon the part of both litigants, and seller introduced evidence of individual sales from June to Sep-quash the service of summons, upon the tember, court's action in permitting plaintiff, during rebuttal, to introduce evidence of three sales during months of April, August, and December was not manifest abuse of discretion. ground that the defendant was a foreign corporation, having no established agency in Oregon, and not transacting any of its business in this state. This motion was denied, 10. DAMAGES 68—INTEREST-UNLIQUIDAT- and thereupon the defendant simultaneously ED CLAIM. Buyer suing seller for failure to deliver is not entitled to interest on his damages. 11. TRIAL 232(3) INSTRUCTIONS DENCE. filed a plea in abatement, and an answer to the merits. The former consisted of recitals relating to the condition of defendant as EVI- a foreign corporation, and, as in the motion to quash the service of summons, challenged the court's jurisdiction of defendant's person, as sought to be acquired by the personal service upon its secretary while he happened to be visiting Portland upon his private affairs. Instructions directing jury to "do the best you can, according to all the evidence that has been introduced," held not subject to objection that it permitted jury to indulge in speculation in reaching verdict. Department 1. Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge. Action by the Duncan Lumber Company against the Willapa Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed as modified. This is an action in which plaintiff seeks to recover damages for the breach of a contract. The substance of the complaint is that the parties entered into a contract dated March 22, 1917, whereby defendant agreed to manufacture and sell to plaintiff certain spruce lumber, at an agreed price of $42 per | thousand feet, f. o. b. Chicago; that defendant was to pay the freight and pay plaintiff a commission of 5 per cent., and that the delivery was to be completed not later than May 30, 1917. It is then alleged that defendant failed and refused to deliver a large portion of the lumber, the shortage amounting to 344,483 feet; that by mutual agreement the date of delivery was extended to August 18, 1917, at which time defendant failed and refused to make further delivery. It is further averred that on August 18, 1917, and for some days subsequent thereto, the market price of spruce lumber of the kind and quality specified in the contract, at Chicago, The answer to the merits begins with this paragraph: "For a further and separate answer to plaintiff's amended complaint, and pursuant to chapter 99, General Laws of Oregon for the year 1911, and not waiving its plea in abatement hereinbefore set forth, and not giving this court jurisdiction over it, defendant for answer to plaintiff's amended complaint herein admits, denies, and alleges as follows." It further consists of a general denial of the allegations of the complaint, and then pleads affirmatively that on March 22, 1917, plaintiff sent from Fortland to defendant at Raymond, Wash., an order for certain spruce lumber, which is the order referred to in the complaint; that defendant, by letter of April 5th, rejected the oruer, advising plaintiff that it could not accept it, but was willing to accept a portion of it, and buy what it could from the neighboring mills, making the best shipment possible, but that it would not make a definite promise of delivery; that on April 9th plaintiff accepted defendant's offer as contained in its letter of April 5th, and in its letter of acceptance asked defendant to return its original order dated March 22d, being order No. 1400, for the purpose of completing its files, and that in compliance therewith defendant returned the order; that said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes order of March 22d, as modified by defend- Homer D. Angell, of Portland (Angell & J. G. Arnold, of Portland, for respondent. from the decisions on this subject is that, where the defendant appears and asks some relief which can be granted only on the hypothesis that the court has jurisdiction of the cause and tion of the court as completely as if he had been the person, it is a submission to the jurisdicregularly served with process, whether such an appearance by its terms be limited to a special purpose or not. # This seems to be a reasonable rule, and one which will adequately protect the rights of the parties, and it determines the effect of defendant's appear ance from the nature of the relief which he seeks to obtain. If he asks the court to ad judicate upon some question affecting the merits of the controversy, or for some relief which presupposes jurisdiction of the person, and which can be granted only after jurisdiction is acquired, he will be deemed to have made a general appearance, and to have submitted himself to the jurisdiction of the court, and cannot, by any act of his, limit his appearance to a special purpose." In the present case, the defendant appears to have acted upon the theory that since the amendment of section 74, p. 144, L. O. L., General Laws of Oregon for 1911, a plea in abatement, challenging the jurisdiction of the person, may be joined with a plea to the merits without effecting a waiver of defects in the service of the summons. But this does not follow. It is true that when the defect in the service does not appear upon the face of the record, it may be called to the attention of the court by a plea in abatement, and it is also true that in all proper cases the plea in abatement may be joined with other defenses and counterclaims in the same answer, but there is nothing in the statute which tends to neutralize the established legal effect of pleading to the merits, which is that it is a voluntary submission to the jurisdiction of the court. moment that defendant filed its answer there was no further question of jurisdiction left in the case. From the BENSON, J. (after stating the facts as above). [1] A considerable number of the assignments of error are based upon the contention that the court never acquired jurisdiction of the person of the defendant, and all of these may be considered together. At the outset it must be observed that the defendant has filed an answer upon the merits, which, according to a long line of decisions of this court, constitutes a voluntary appearance and a waiver of any defect in the service of summons. Among these are Rogue River Mining Co. v. Walker, 1 Or. 341; Harker v. Fahie, 2 Or. 89; White v. N. W. S. Co., 5 Or. 99, 102; Kinkade v. Myers, 17 Or. 470, 21 Pac. 557; Belknap v. Charlton, 25 Or. 41, 34 Pac. 758; Fildew v. Milner, 57 Or. 16, 109 Pac. 1092. The case of Belknap v. Charlton, supra, may be regarded as the leading case upon the subject in this jurisdiction, having been many times cited with approval, the latest being in Felts v.versation between the secretary of the deBoyer, 73 Or. 83, 144 Pac. 420, and Roethler v. Cummings, 84 Or. 442, 165 Pac. 355. In the case of Belknap v. Charlton, Mr. Justice Bean says: "It is claimed by the plaintiffs that while a defendant may appear specially to object to the jurisdiction of the court over him on account of the illegal service of process (Kinkade v. Myers, 17 Or. 470, 21 Pac. 557), he must Keep out of court for every other purpose, and that any appearance which calls into action the power of the court for any purpose except to decide upon its own jurisdiction is a general appearance, and waives all defects in the service of process, and many authorities are cited to sustain this position. The principle to be extracted Turning, then, to the questions arising upon the trial upon the merits, the defendant first urges that the court erred in excluding from the consideration of the jury two letters which were identified as Exhibits C and D, and also the substance of a telephone con fendant and the president of the plaintiff. These three assignments are here grouped together for the reason that they present the same problem. The two letters, in their order, are as follows: Exhibit C. "April 5, 1917. "Duncan Lumber Co., Northwestern Bank Bldg., Portland, Oregon-Gentlemen: We are in receipt of yours of the 3d inst. requesting return of blue sheet acknowledgment of your or der No. 1400. This order came into the office during the writer's absence in the East. Last week he called at your office and talked with Mr. Duncan regarding date of shipment mentioned in your letter. "File: Order No. 1400. "I hope that you will give this order the vigorous attention that it demands, and with best wishes, remain As per Sketch "C" B/P #114-1400. "Shipment: Commence promptly and complete by May 15 to 30, 1917. "Note.-When ordering cars show on requisition Material for Duncan Lumber Co. for Construction Northern Pacific System Refrigerator Cars-Final Destination Pullman, Ill.' and send us copy of your car order. Special arrangements will be made to furnish cars promptly when so ordered. "Confirming phone conversation with Mr. Jayne. "This order accepted and will be shipped. "Our order No. 1400. [2] It is the contention of the defendant, as disclosed in its answer and in the argument upon this appeal, that the true contract between the parties is to be found in the two letters and the foregoing order. Neither fraud nor mistake is alleged. An inspection of the order discloses that it is, on its face, a complete contract. It does not appear that any necessary detail is omitted which should be supplied, nor is it contended by the defendant that the letters and telephone conversation supply additional details, but that they modify the terms thereof. In other words, defendant seeks, by these offers, to establish, by evidence dehors the contract, that prior to its execution there were negotiations where it was agreed that the terms of the contract, both as to quantity of material and as to time of delivery, should be different from those expressed in the instrument subsequently signed by the defendant. That this cannot be done is so clearly taught in Sund 168 Pac. 300, that it requires no further com& Co. v. Flagg & Standifer Co., 86 Or. 289, ment. The evidence was properly excluded. [3, 4] It is then urged that error resulted from the action of the court in admitting evidence of the expense incurred by the plaintiff in purchasing lumber elsewhere, after It is "It is understood, unless otherwise specified, that all lumber shipped on this order will conform to the standard classification, grading and dressing rules adopted by the West Coast Lumber Manufacturers' Association and is guar- plaintiff's failure to deliver the same. anteed not to exceed association weights. the settled law of this state, as conceded by "Load all cars to capacity in accordance the parties hereto, that the measure of damwith railway tariffs governing, and make proper notation on bill of lading to protect actual weight of contents. Any excess freight charges resulting through your failure to do this will be for your account. ages for failure to deliver merchandise, in accordance with a contract of purchase, if the articles have a market value, is the difference between the contract price and |