8 Iowa, 309; Smith v. Holmes, 19 N. Y. 271. The answer contains no allegation that plaintiff's compensation for cutting the grain should not become due and payable until the grain should be threshed, nor does it aver that the grain had not in fact been threshed before the commencement of the action. No issue was tendered upon either of these questions. By his answer the defendant denied his liability entire, and alleged that the work was performed for Elgin, and that as cashler of the Pendleton National Bank he had agreed to pay for such work if a sum sufficient for that purpose should be realized from the sale of the grain, and that the bank had complied with this contract. These were the real issues in the case and were properly submitted to and passed upon by the jury.

And again, we do not think the court could have declared as a matter of law that there was no evidence tending to show that a reasonable time had not elapsed in which to thresh the grain, even if the question had been an issue in the case. The evidence shows that the plaintiff commenced work about the 1st of September, and had the grain stacked ready for threshing the last of October, 1893, and this action was not commenced until May 29, 1894, about seven months thereafter. Whether this was a reasonable time, under all the circumstances, in which to have threshed the grain was a question for the jury and not the court.

It is also claimed the court erred in overruling defendant's motion to set aside the verdict, and for a new trial, but it is well settled in this state that the action of a trial court in refusing to set aside a verdict for insufficiency of the evidence is not assignable error, and therefore the question requires no further consideration at this time.

It follows that the judgment of the court below must be affirmed.

(27 Or. 515)

VEASEY v. HUMPHREYS. (Supreme Court of Oregon. July 20, 1895.) PLEADING CONFESSION AND AVOIDANCE.

In an action for possession of property under a chattel mortgage executed by a partnership, defendant denied its execution by the alleged partnership, and then alleged, as a separate defense, that plaintiff, with one of the alleged partners, conspired to place property of the other partner beyond reach of his creditors by pretending to execute the alleged chattel mortgage, and that the plaintiff received the alleged chattel mortgage knowing that it was attempted to be executed by his co-conspirator without consideration. Held, that the execution of the mortgage was admitted by the pleadings, and it was therefore properly admitted in evidence without further proof.

Appeal from circuit court, Wallowa county; M. D. Clifford, Judge.

Action by T. H. Veasey against Thomas Humphreys for possession of cattle. From a

Affirmed.

This is an action to recover 37 head of cattle. The complaint alleges, among other things, that during all the time from March 1 to August 23, 1893, R. M. Douney and D. C. Nicholson were partners, doing business under the firm name of Douney & Nicholson. That, on or about March 10, 1893, plaintiff sold and delivered to said firm a certain lot or drove of cattle, taking for the purchase price thereof three joint and several notes, signed in their individual capacity, for the sum of $420 each, payable respectively 18, 30, and 42 months after date. That, to secure the payment thereof, "the said Douney & Nicholson did, on August 21, 1893, execute and deliver to plaintiff their certain chattel mortgage in writing upon all the cattle so sold." except two head thereof. The complaint then proceeds with appropriate allegations of the filing of the mortgage, its conditions, and the breach thereof, of plaintiff's ownership and right to possession by virtue of such conditions, and of the wrongful taking and detention of the 37 head of cattle by defendant. Another action was commenced December 5, 1893, by plaintiff against defendant, to recover 33 head more. The allegations of the complaint are substantially the same as the first. The defendant filed an answer to each of these complaints, denying specifically each and every allegation thereof, including the allegation of the execution and delivery of the mortgage by Douney & Nicholson to plaintiff. By each of said answers, defendant justifies his taking and detention, as sheriff of Wallowa county, Or.,-the first under a writ of attachment, and the second under an execution duly issued out of the circuit court in and for said county, in an action by A. Levy v. R. M. Douney, for the purpose of subjecting Douney's undivided one-half interest to the payment of Levy's claim against him.. In the further and separate defense to the first complaint, it is alleged: "That, on or about the 21st day of August, 1893, the plaintiff and said D. C. Nicholson, conspiring together, and without any consideration, and in bad faith, attempted to place all the property herein described beyond the reach of the creditors of the said R. M. Douney, by then and there pretending to execute said alleged chattel mortgage mentioned in plaintifï's complaint, and that any and all claims of plaintiff in and to said property, or any part thereof, are fraudulent and void, as against the rights of said creditors of the said R. M. Douney, and especially fraudulent and void as against the rights of said A. Levy, and said plaintiff received said alleged chattel mortgage with full knowledge that the same was attempted to be executed by the said D. C. Nicholson without any consideration at all, and for the sole purpose of hindering, delaying, and defrauding the creditors of the said R. M. Douney." The answer to the second complaint being substantially the

same, the two cases were consolidated, and tried as one. At the trial, the chattel mortgage, which was signed "Douney & Nicholson" and witnessed by one W. W. White, was offered in evidence, and admitted by the court, over objections by the defendant, based upon the ground that, the execution of said instrument having been witnessed by W. W. White, he should have been called, or his absence accounted for, before other proof of its execution was admissible. The verdict and judgment being for plaintiff, the defendant appeals.

Ivanhoe & Sheahan, for appellant. J. Nat. Hudson and T. G. Hailey, for respondent.

WOLVERTON, J. (after stating the facts). It is claimed by the plaintiff that the execution of the chattel mortgage in question was admitted by the pleadings (and that he was entitled to have it admitted in evidence without other proof of its execution. This contention involves to some extent a consideration of the rules of pleadings touching the allegation of new matter constituting a defense. The statute provides (Hill's Ann. Laws Or. § 73, subd. 2): "The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated, and refer to the cause of action which they are intended to answer in such manner that they may be intelligibly distinguished." New matter pleaded under this statute, which goes to defeat the plaintiff's cause of action, logically speaking, if not expressly, it impliedly admits a real or apparent right in plaintiff to be thus avoided. Such a plea at common law was by way of confession and avoidance, in which the defendant had to give color to the plaintiff. By this is meant he was required to give plaintiff credit for having an apparent or prima facie right of action, independently of the matter disclosed in the plea, to destroy it. A special defense of new matter in avoidance may, however, go with a traverse, -at least, when not inconsistent. The confession should in such case be qualified, says Bliss, as under the old precedents. Thus, as found in Chitty, the contract to be avoided should be alluded to as "the said supposed contract," or "the said several supposed debts and causes of action," or "the supposed escape." There is no confession in terms, and it is only implied from the nature of the defense. Bliss, Code Pl. §§ 340, 341. Woodruff, J., in Ketcham v. Zerega, 1 E. D. Smith, 560, 561, cites other precedents from Chitty. Thus, a plea of nonjoinder of another defendant was made as follows: "Because they say that the said several supposed promises," etc.; "if any such were made by them, were made by them and A. B. jointly," etc.; or, as in a plea of bankruptcy, "that, after the making of the said several supposed promises and undertakings, if any such were made, he, the said C. D.,

became a bankrupt," etc. It often happens that new matter directly alleged would be inconsistent with an absolute traverse, so that both could not be verified; and, in such case, if the pleader desires to avail himself of both defenses,-that is, to put the opposing party to the proof of his plea, and at the same time save to himself an affirmative defense, it is essential that the allegations of new matter should be qualified, or else they should be preceded by a qualified traverse. These observations apply to such defenses as are only apparently inconsistent; but, when clearly so, it is doubtful whether they can be pleaded in the same answer. In further illustration, Thayer, C. J., in McDonald v. Mortgage Co., 17 Or. 633, 21 Pac. 883, says: "The two defenses set up in the answer, that the respondent never employed the law firm of McDougall & Bower, and that they were guilty of gross negligence in the management of the business,-were not necessarily inconsistent, as they both may have been true. If the respondent had de nied the rendition of the services, and then alleged that they were negligently and unskillfully performed, the case would have been different. In the latter case, the defenses, unless the denials were with an 'absque hoc,' as it was termed, would be inconsistent, as both could not be true." In the case at bar, the defendant had a perfect right, by his denials, unless he knew them to be false, to put the plaintiff to the proof of the execution of the chattel mortgage, and by a proper plea show that, if said alleged mortgage was in fact executed by, or bears the signature of, said alleged or supposed firm of Douney & Nicholson, it is the result of a conspiracy entered into by D. C. Nicholson and the plaintiff, for the purpose of defrauding the creditors of Douney, and was without consideration and void. Such devials and plea of fraud and want of consideration have been held not to be inconsistent, and are properly pleadable in the same answer. Bank v. Closson, 29 Ohio St. 78; Pavey v. Pavey, 30 Ohio St. 600; Nelson v. Brodback, 44 Mo. 596; Mott v. Burnett, 2 E. D. Smith, 50; Bell v. Brown, 22 Cal. 672; Ketcham v. Zerega, supra. But, as between a denial of a fact alleged in the complaint and a direct admission of the same fact in a further and separate or special defense, the admission, and not the denial, will be taken to be true. Derby v. Gallup, 5 Minn. 119 (Gil. 85), and 1 Thomp. Trials, § 197. There can be no denial of a statement absolutely admitted upon the record. Bliss, Code Pl. § 341. Now, in this case, the defendant denied the execution of the chattel mortgage in question by Douney & Nicholson; but, in the further and separate defense set forth in his answer, he alleged, in effect, that the plaintiff and Nicholson conspired together and in bad faith attempted to place the property be yond the reach of Douney's creditors by then and there pretending to execute said alleged

findings, and rendered a decree perpetually enjoining the defendants from conducting water across plaintiff's premises, from which decree the defendants appeal.

M. L. Olmstead, for appellants. J. L. Rand, for respondent.

MOORE, J. (after stating the facts). It is contended that a parol license cannot be revoked after it has been executed by the licensee who, relying upon the faith of the privilege conferred, has expended money in making valuable permanent improvements. The principle contended for assumes that the outlay of money in making such improvements is equivalent to the payment of a valuable consideration for the license, which, having been executed, becomes irrevocable, and is converted into an agreement which equity will enforce, upon the theory that the licensor, having encouraged the improvements which have been made upon the faith of the license, is estopped by his conduct from asserting his strict legal rights. The leading case in support of this principle is Rerick v. Kern, 14 Serg. & R. 267, in which it appears that Kern, being about to erect a sawmill on a branch known as the righthand stream, found a better location on the left-hand stream, and, having obtained Rerick's permission, he built his mill on the latter stream, which, without the aid of water from the right-hand stream, would have been wholly insufficient to operate the mill. No deed was executed or any consideration paid for the privilege; but, after Kern, in consequence of the permission, had put his mill in successful operation, Rerick revoked the license, by removing the dam which was built to divert the water. It was there held that the license, in consequence of the improvement, became irrevocable. Gibson, J., in delivering the opinion of the court, said: "But a license may become an agreement on valuable consideration, as where the enjoyment of it must necessarily be preceded by the expenditure of money; and, when the grantee has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable consideration. grant is a direct encouragement to expend money, and it would be against all conscience to annul it as soon as the benefit expected from the expenditure is beginning to be perceived." The editors of the American Decisions, in their notes to this case (16 Am. Dec. 497), after an exhaustive citation of decisions upon this question, say: "From the foregoing review of case law it will be seen that the doctrine of the principal case, though not recognized in some of our state courts, is nevertheless expressive of the law as administered in the majority of them, and that the preponderance of recent judicial opinion is in harmony with the views of Judge Gibson." The rule announced in the Pennsylvania case was adopted by this court in the case of

Such a

Curtis v. Water Co., 20 Or. 34, 23 Pac. 808, and 25 Pac. 378, in which Lord, J., in commenting on the principle contended for, said: "An executed license is treated like a parol agreement in equity. It will not allow the statute to be used as a cover for fraud. It will not permit advantage to be taken of the form of the consent, although not within the statute of frauds, after large expenditures of money or labor have been invested in permanent improvements upon the land, in good faith, upon the reliance reposed in such consent. To allow one to revoke his consent, when it was given, or had the effect, to influence the conduct of another, and cause him to make large investments, would operate as a fraud, and warrant the interference of equity to prevent it." The execution of a parol license, while relying on the faith of it, supplies the place of a writing, and takes the case out of the statute of frauds (Lee v. McLeod, 12 Nev. 280); but, while the agreement under which the licensee has acted may be proved by parol (Le Fevre v. Le Fevre, 8 Am. Dec. 696), the evidence of it should be clear and convincing, and show a permission to do the particular act which has been accomplished or some participation in its execution by the owner of the estate or easement affected thereby (McBroom v. Thompson, 25 Or. 559, 37 Pac. 57). The evidence shows an agreement between the parties in relation to the construction of the ditch; that the plaintiff's husband, as her agent, assisted in locating its course across her land; that she furnished a team and plow with which to do a part of the work; and that the completion of the ditch for the purpose of irrigating her lands, and the defendants' reliance upon the faith of the agreement, while making permanent improvements on their mining claim, constitute the consideration for the license which, having been executed, cannot now be revoked.

The next question to be considered is whether equity will enjoin the use of the defendants' ditch when its banks are liable to break, thereby causing the water to overflow the plaintiff's meadow. The defendants allege in their answer that their agreement to keep the ditch in repair formed a part of the consideration for the permission to construct it, and hence they are bound to exercise due care in the management of the ditch, and for any neglect in that respect they will be liable for any injury in excess of the ordinary consequences that might result therefrom. The rule is well settled that, where one, in the execution of judicial process, abuses the license conferred upon an officer by law, he becomes a trespasser ab initio; but where one, under express authority of the licensor, exceeds or abuses the privilege conferred, he is only liable for the excess. Jewell v. Mahood, 84 Am. Dec. 90. The defendants, having entered the plaintiff's premises by her express agreement, cannot be trespasses, but would be liable in an action at