ted to act upon the instruction given to them by the court. There was no evidence in the case to overcome either of these presumptions; and for this, as well as for the other reasons above stated, the judgment must be reversed. Judgment reversed, and a new trial ordered. (8 Mont. 310) TERRITORY V. MOOREHOUSE. (Supreme Court of Montana. Feb. 12, 1889.) APPEALABLE ORDERS. An order of the district court refusing to dismiss an appeal from a justice's court is not an appealable order, under Code Civil Proc. Mont. 444, granting an appeal from certain orders pertaining to new trial, injunction, attachment, and change judgment, and from certain interlocutory judg of venue, from any judicial order made after final Appeal from district court, Silver Bow before a justice, was required to pay costs on Mary Moorehouse, as prosecuting witness the ground of malicious prosecution. From an order of the district court refusing to dismiss an appeal from the justice, the territory appeals. W. E. Cullen, Atty. Gen., for the Territory. A point is made by the defendant that the plaintiff at the time of the accident was riding on a pass, which had conditions that in case of injury to the holder would protect the defendant from liability. The effect of such a provision upon a pass is not, under the evidence, a question in this case. The pass was apparently adopted by both parties as a convenient way to carry out a contract of employment. The terms of that pass were no part of that agreement. Its object was only to enable the plaintiff, by its means, to pass over the road. The agreement was that the plaintiff should serve the defendant as its traveling auditor; go from station to station on this and other lines of road, upon the cars of defendant, without charge to the plaintiff; for which he was to have an agreed com-ments. pensation. With or without the pass he was to do, and would have done, so far as ap-county. pears, precisely what he was doing at the time of the accident. He was a servant of the company, on duty in the defendant's business, and riding upon or under his contract of employment, but of which contract neither the pass nor its conditions were a part. The relations between the parties were those of master and servant, and the only rule of the liability of the defendant to the plaintiff is the rule of the liability of the employer to the employé. That rule is "that when a servant enters into the employ of another he assumes all the risks ordinarily incident to the business. He is presumed to have contracted with reference to all the hazards and risks ordinarily incident to the employment; and he cannot recover for injuries resulting from such ordinary risks." Wood, Mast. & Serv. § 326. Noyes v. Smith, 28 Vt. 59. The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part; and he is met with two presumptions, both of which he must overcome, in order to entitle him to a recovery: First. That the master discharged his duty to him by providing suitable instrumentalities for the business; and this involves something more than proof of the mere fact that the injury resulted from a defect in those appliances. The burden is imposed on him of showing that the master had notice of the defect, or that, in the exercise of ordinary care, which he is bound to observe, he would have known it. Second. When this is estab-able cause shall be tried anew. This has lished, he is met by another presumption, the force of which he must overcome, and that is that he assumes all the ordinary hazards of the business. To overcome this presumption he must show that the injury did not arise from an obvious defect in the instrumentalities of the business, or from hazard incident to the business, or from causes known by him to exist, or which he might have known by the exercise of ordinary care. Failing to overcome these presumptions, he cannot reWood, Mast. & Serv. § 382, and cases cited. The jury in this case should have been so instructed, instead of being permit cover. MCCONNELL, C. J. Respondent was the prosecuting witness in a criminal case instituted before a justice of the peace against one Isaac Moorehouse. The defendant in that case was discharged, and the respondent, Mary Moorehouse, adjudged to pay the costs, upon the grounds that the prosecution was malicious and without probable cause. From this order, which was made on the 28th day of January, 1888, respondent appealed to the district court on the 3d day of February following. No notice was given of an intention to appeal at the time the order was made. In the district court the county attorney moved to dismiss the appeal for the want of such notice. The court overruled this motion, and the territory appealed from the order overruling said motion. Said section 530 of the Criminal Practice Act provides, in substance, that where a court or jury find that there was no probable cause for commencing the prosecution, or that it was malicious, and the court taxes the costs against the prosecutor, he may appeal to the district court, where the question of malice or want of prob never been done. But the case is here upon an appeal from an order of the district court refusing to dismiss the appeal from the justice's court. Is this an appealable order? We think not. Subsection 2 of section 444 of the Code of Civil Procedure provides that an appeal may be taken from the district court to the supreme court in the following cases, to-wit: "From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order granting or refusing to dissolve an attachment; from an order chang ing or refusing to change the place of trial; | 1st day of February, 1888, the directors of from any judicial order made after final judg- said district decided to close the schools inment; and from such interlocutory judg- definitely, and reordered that the teachers be ments in actions for partition as determine discharged, all of which was done at a spethe rights and interests of the respective par- cial meeting called for that purpose. Subseties and direct partition to be made." The quently the schools of said district were reorder appealed from in this case is not em- opened for the spring term, but the plaintiff braced in this statute. This court, then, has was not allowed to resume under her conno jurisdiction to hear it, and dismisses the tract, and she has brought an action to reappeal at cost of the appellant. cover for her services rendered during the time the school which she taught was discon BACH and LIDDELL, JJ., concur in the re- tinued on account of the diphtheria, and also sult. (17 Or. 517) for the unexpired portion of her contract in which the directors refused to allow her to teach, but hired another in her place. At all other times the plaintiff was paid for her services. GOODYEAR v. SCHOOL-DIST. No. 5. (Supreme Court of Oregon. May 3, 1889.) SCHOOL-DISTRICTS--CONTRACTS. By this statement of the facts it will be Where, under a contract between the directors of a school-district, there was a clause to teach a seen that under the contract the directors definite period, unless the school was discontinued claimed the right to discontinue the schools by order of the directors, and the directors, in con- for any proper cause, and to discharge the sequence of the prevalence of diphtheria, stopped the schools, but reopened them when the danger teachers, or at least that the discontinuance had passed, and before the expiration of such con- operated to discharge the teachers, while the tract, held, that the discontinuance of the school plaintiff claims that her contract was in full was for good cause, and authorized under the contract, but that it did not operate to annul such force and effect during the whole period covcontract and discharge the teacher, but that it did ered by it, and that the directors were not relieve the district from liability during such pe-authorized under it. Although it may have riod, but not from liability for the unexpired por tion of such contract after the schools were reopened. (Syllabus by the Court.) Appeal from circuit court, Jackson county. H. K. Hanna and E. De Peatt, for appellant. A. S. Hammond, for respondent. been timely and expedient to close the schools in consequence of the prevalence of the diphtheria, it did not operate to discharge the teachers or to annul the contract. In support of the theory of the plaintiff two cases are cited, viz.: Dewey v. School-Dist., 43 Mich. 481, 5 N. W. Rep. 646, and Tripp v. LORD, J. This was an action to recover School-Dist. No. 7, 50 Wis. 653, 7 N. W. Rep. money on a written contract for services as 840. But this is a mistake. In the first a teacher. The contract was as follows: "It case, the contract was absolute, without any is hereby agreed between the directors of right being reserved by the directors to disschool-district No. 5, Jackson county, state continue the school for any cause. The of Oregon, and Amanda Goodyear, a quali- small-pox broke out, and the school was fied teacher of said county and state, that the closed, and the court held that this was not said Amanda Goodyear is to teach in the actus Dei, in the sense as would excuse a public school of said district for the term of school-district from liability on its contract, nine months, unless discontinued by order of and say: "It must appear that observance of the directors, for the sum of forty-five dol- the contract by the district was caused to be lars ($45) per month, commencing on the 5th impossible by act of God. It is not enough day of Sept., A. D. 1887; and for such serv- that great difficulties were encountered, or ices, lawfully rendered, the directors of said that there existed urgent and satisfactory district are to pay the said Amanda Goodyear reasons for stopping the school." But it is the amount that may be lawfully due accord- apparent from what follows that if the coning to this contract, on or before the 1st day |tract in that case was provided for a disconof June, A. D. 1887. Dated this 5th day of tinuance, as in the case at bar, the appearSept., A. D. 1887. [Signed] F. ROPER, Jance of an epidemic, such as the small-pox or H. CHITWOOD, E. S. APPLEGATE, Directors. diphtheria, would have constituted a lawful AMANDA GOODYEAR, Teacher." In Decem-reason, within the purview of the contract, ber of the same year the diphtheria appeared to have authorized the directors to have disin the district, and among the children of the continued the schools for the time, to stay the school, and in consequence thereof the direct- spread of such diseases, and the suspension ors discontinued the schools of the district, of the contract during such discontinuance; and discharged the teachers during such dis-or, in other words, in such case it would continuance on that account; and on or about the 9th day of January, 1888, the disease or epidemic having disappeared, the directors notified the teachers to resume their schools, and the directors and teachers indorsed on the back of the original agreement that the same should be renewed from and after that date. After the schools had gotten fairly started, the diphtheria reappeared, and on the have precluded a recovery for the time the schools were stopped on that account. The court say: "To let in the defense that the suspense precluded recovery, the agreement. must have provided for it. But the district. did not stipulate for the right to discontinue the plaintiff's pay on the judgment of its officers, however discreet and fair, that a stoppage of the schools is found a needful meas- ure to prevent their invasion by disease, or | lence of diphtheria operated to discharge the to stay or oppose its spread or progress in the teacher, but not that they had any reserved community, and the contract cannot be re- right under the clause to discharge a teacher garded as tacitly subject to such a condition. who was competent, and in all respects in In the case at bar there is an express pro- the faithful and efficient performance of her vision for a discontinuance to which the par- duties. Their idea was that the suspension ties have agreed, in the event, as we under- of the contract while the school was closed stand it, that it should become necessary for operated to annul or destroy its provisions, any proper cause to stop or discontinue the and likewise to discharge the teacher and exschools during some period of the contract. cuse the district from any further liability, That the presence of diphtheria or other con- and as a consequence that the original contagious and dangerous diseases would be such tract could have no force or effect thereafter, a cause or urgent necessity as would justify unless revived by new promises and engagethe directors, within the sense of the con- ments. So that there is no parallel between tract, to discontinue the schools until the the facts and law as applied in the case cited dangers arising therefrom should pass, in our and the facts of the case at bar, and the law judgment, is too manifest to be disputed. to be applied to it. What result the court And as a consequence, during such discon- would have reached, if under that clause they tinuance, there would be no liability to pay, had closed the school on account of the presor duty to perform, the services of a teacher. | ence of some contagious and dangerous epiBy the terms of the contract there is a sus-demic, and the teacher had claimed payment pension of it during that period; nor was the during the whole period covered by the conplaintiff discharged in consequence thereof, tract, we only conjecture. There is a marked as claimed by the defendant. In the other difference in the power exercised under a case, Tripp v. School-Dist., supra, there was clause of this character in an agreement in a clause in the contract by which the direct-closing the schools on account of some urors declared that "we reserve the right to gent necessity, and in using the same to disclose the school at any time, if not satisfac- miss a teacher who is competent and efficient tory to us," and under this contract they acted upon the assumption that they could close the school and lawfully discharge the teacher before her term of hiring had expired, if they were dissatisfied with her management of the school, although the teacher was competent, and at the time of the discharge was in the due performance of her contract. The court held the power of discharge exercised under this clause to be unauthorized by law, and said: "If the power claimed for the board in this case exists, and may be enforced, then the public schools must be taught to suit the whims, caprices, and peculiar notions of the hiring board, and not as the teacher, in the conscientious discharge of his duty, should teach the same." And again: "It may, perhaps, be fairly inferred that, under the visitorial powers conferred on the board by section 441, they would have the power to close the school and discharge the teacher if he was not in fact competent to teach or govern the school, or if for any other cause such teacher was not duly performing the contract on his part, without calling any meeting of the district to take action upon the subject. Such power, however, is very different from that claimed for the board in the case at bar." Here the board claimed and exercised the power to discharge a teacher, no matter how competent, or with what efficiency and usefulness, he may have been in the performance of his duties under the contract, if the management was not satisfactory to them, thus usurping powers not conferred, and compelling all teachers of the district to teach to their satisfaction, and not to the satisfaction of the people and the improvement and benefit of the pupils. In the case at bar the directors claimed the effect of discontinuing the school during the preva- been rendered by the creditor, and assented to by in the discharge of his duties, in consequence of personal dissatisfaction of the directors at the management of the schools. Under the contract at bar, our own opinion is that the discontinuances were for good cause, and authorized by the contract, and during such times as there was a suspension of the contract for such causes it did not operate to annul the contract, or discharge the teacher, but it did excuse or relieve the district from liability during such periods, and that when the danger had passed, and the schools were reopened, the teacher (the plaintiff) had a right, under the contract, to resume her duties as teacher for the unexpired portion thereof; and if she held herself in readiness, and offered to perform her contract, and the directors refused to allow her to do so, she is entitled to recover according to its terms for that period. The judgment must therefore be modified so as to confine the recovery to the unexpired portion of the contract when the schools were reopened; and it is so ordered that it be entered accordingly; and that neither party recover costs in this court. (17 Or. 522) GILROY V. SCHOOL-DIST. No. 5. LORD, J. As the facts in this case are identical with those in Goodyear v. School-Dist. ante, 664, the same judgment will be entered therein. (17 Or. 523) TRUMAN et al. v. OWEN et al. (Supreme Court of Oregon. May 3, 1889.) ACCOUNT STATED-EVIDence. 1. An account stated is an account which has the debtor as correct, either expressly, or by implication of law from the failure to object within a reasonable time. 2. Merely rendering an account does not make it an account stated, but an account rendered and delivered to the debtor, exhibiting the demand of the creditor, unless objected to within a reasona ble time, becomes an account stated. 3. When the action is strictly on an account stated, to maintain such action the plaintiff must prove an account stated, as that, and nothing else, will support his allegations. (Syllabus by the Court.) Appeal from circuit court, Jackson county. E. De Peat, for appellants. 4. S. Hammond, for respondents. quire into the nature of an account stated, in order to ascertain whether the right principle was applied to the facts of the case. An account stated is an account which has been rendered by the creditor, and has been assented to by the debtor as correct, either expressly, or by implication of law from the failure to object. Abbott's Trial Evidence, p. 458, says: "An account stated is an agreement between persons who have had previous transactions fixing the amount due in respect of such transactions, and promising payment." Chitty on Contracts, p. 458, says: “It must appear that at the time of accounting there existed some demand beLORD, J. This was an action upon an ac-tween the parties respecting which an account stated. The complaint contained the count was stated, that a balance was then usual allegations of an account stated, all of struck and agreed upon, and that the defendwhich were specially denied by the answer. ant expressly admitted that a certain sum Upon the trial, in consequence of a failure was then due from him as a defendant." of evidence, the court, upon motion, instruct- See, also, 2 Greenl. Ev. § 126. As defined by ed the jury to render a verdict for the de- Lord MANSFIELD, an account stated is an fendants, and the jury returned a verdict for agreement by both parties that all the artithe defendants. The errors alleged are in cles in the account are true. Trueman v. sustaining objections of defendants' counsel Hurst, 1 Term R. 40. To make an account to the introduction of the account and order stated, there must be a mutual agreement as evidence of an account stated, and in di-between the parties as to the allowance or recting the jury to return a verdict for the disallowance of their respective claims; and defendants. It appears by the bill of excep- to establish such an account so as to preclude tions that one Martin, who was the agent of plaintiffs, doing business in San Francisco, sold to the defendant Bean a stump-puller, and that he at that time agreed to pay for it by an order on Mr. Patrick, which (order) was to be paid as soon as there was that amount due them from Mr. Patrick, for whom the defendants were working; that on the 25th day of May, 1888, the said Martin, as such agent of plaintiffs, presented the following bill to the defendants: TRUMAN, HOOKER & Co. SAN FRANCISCO, May 18, 1888. Sold to C. A. Owen, Ashland, Oregon: 1 No. 5 stump-puller, irons, and grab-hook..$95 00 Dray..... Terms, 60 days. 75 a party from impeaching it, save for fraud or mistake, there must be proof of assent to the account as rendered, either express or implied, from failure to object within a reasonable time. Stenton v. Jerome, 54 N. Y. 480. An account rendered and delivered to the debtor, exhibiting the creditor's demand, unless objected to within a reasonable time, becomes an account stated. But merely rendering an account does not make it an account stated, or where it is simply rendered by one party against another it is not an account stated between the parties. Spangler v. Springer, 22 Pa. St. 454. The great majority of cases refer or cover accounts rendered, followed by a failure to $95.75 object thereto. In such cases the agreement -And that according to the contract the de- is implied from all the circumstances, and in fendant gave to the agent Martin a written particular from failing to dissent within a order on W. A. Patrick for the money, who reasonable time. As stated in Toland v. agreed with Martin that the said order Sprague, 12 Pet. 335: "The mere rendering should be paid when the defendants had done an account does not make it a stated one; work enough for him to amount to that sum. but if the other party receives the account, The order was as follows: "Ashland, Ore- admits the correctness of the items, claims gon, May 25, 1888. W. A. Patrick, Esq.: the balance, or offers to pay it, as it may Please pay Truman & Hooker the sum of be in his favor or against him, then it beninety-five dollars, and charge to us. Re- comes a stated acccount." Nor did the court spectfully, C. A. OWEN. L. M. BEAN." think it "important that the account was not That the "Terms, 60 days," as evidenced on made out as between the plaintiff and dethe bill, meant that the amount stated there- fendant; the plaintiff having received it, in would draw interest after 60 days, if not having made no complaint as to the items or paid. Substantially upon this state of facts, the balance * * thereby adopted it, as disclosed by the evidence, the court sus- and by his own act treated it as a stated actained the objections aforesaid, and directed count." But in all such cases there must be the jury to return a verdict for the defend-proof, in some form, of an express or implied ants. The action of the court proceeded on the ground that there was a failure of proof, or that the facts as disclosed did not show an account stated, as alleged. As this is assigned as error it becomes necessary to in assent to the account rendered by one party to another before the latter can be held to be so far concluded that he can impeach it only for fraud or mistake. Said FOLGER, C. J.: "This is strictly a cause of action on an ac (17 Or. 546) SISEMORE v. PELTON et al. (Supreme Court of Oregon. May 3, 1889.) RESULTING TRUSTS. 1. In a suit to establish by parol evidence a resulting trust in real property upon the alleged grounds that it was purchased, and the conveyperson, while the purchase price was paid by anance of the legal title taken in the name of one other, the evidence of the payment of the purchase price, or of the exact portion of it which was paid, where payment of a part only is claimed, in order to be effective, must be clear, certain, and convincing. 2. And it is indispensable to the establishment of such a trust that the payment should be actually made by the beneficiary, or that an absolute obligation to pay should be incurred by him, as a part of the original transaction of purchase, at or before the time of the conveyance. real property, upon the grounds that the conveyance of the legal title was taken by one possessing some fiduciary character or standing in some fiduciary relation, it must be shown by clear and unmistakable evidence that the purchase was made 3. In order to establish a constructive trust in count stated. It is that and nothing else. | original transaction itself, and in execution To maintain the action as averred in the of the agreement upon their part in respect complaint, the plaintiff must prove an ac- thereto. More, it was given not only as a count stated; that and nothing else will sup- part of such original transaction, but at a port his allegations. An account stated is time when the claim was not due according an account balanced and rendered, with an to the contract, or the bill presented as exassent to the balance express or implied; so plained by the agent. Upon the undisputed that the demand is essentially the same as if facts as disclosed by this record, the court a promissory note had been given for the committed no error in rejecting the evidence, balance. Bass v. Bass, 8 Pick. 187. * * *and directing the verdict as already stated. The emphatic words of a count upon an ac- It follows that the judgment must be afcount stated were, in former days, insimul firmed. computassent, that they, the plaintiff and defendant, accounted together; and the court went on to say that on such accounting the defendant was found in arrear and indebted to the plaintiff in a sum named, and, being so found in arrear, he undertook and promised to pay the same to the plaintiff. 2 Chit. Pl. 90; 1 Chit. Pl. 358." Volkening v. De Graaf, 81 N. Y. 271. From all this, to constitute an account stated it must appear that the plaintiff and defendant accounted together on their mutual demands, or of the demands of the plaintiff against the defendant, and upon the accounting there was found due to the plaintiff from the defendant the amount claimed. It will be noted, then, that the account stated relates to some previous transactions or dealings between the parties, or to some article or articles formerly sold by one to the other, and that the relation of debtor and creditor already exists between them, and that subsequently to such transactions there is a mutual agreement between them as to the allowance or disallowance of their respective claims, and striking of a balance or agreement as to the amount due, or some other assent, either expressly or fairly to be implied from the circumstances, as failure to object within a reasonable time from the presentation of the account. The idea is that there was an agreement between the parties founded upon an examination of the transactions embraced, either active or presumptive. It is said to be in the nature of a new promise, but the consideration of the promise is the stating of the account. Now, the admitted facts as stated show that the original contract of sale included as part of its terms the giving of the order as aforesaid, and that when the stump-puller and bill for the same were forwarded by the plaintiffs to their agent, and the defendants were notified of its arrival, and the bill presented to them, they in fulfillment of such contract as made by Owen gave the order to Patrick to pay the plaintiffs as soon as that much was due them for their work. Here there was no accounting, no meeting of the minds of the parties upon some previous transaction, and the stating of an account, involving something in the nature of a new promise, but what was done was done not only as a part and parcel of, but in fulfill-3 W., and was formerly school land belonging ment of, the original contract. Nor was the order given as an admission then of an amount due from a past transaction,―a machine formerly sold, but as a part of the with trust funds. 4. Where S. and P. were partners in business, and the latter purchased from I. a certain tract of land, by taking an assignment from I. of a certifihad received upon his purchase of the land as cate of purchase thereof from the state, which I. school land, and upon which purchase he paid one installment, and executed his three several promwhich, by an understanding with P. had with him issory notes in payment of the other installments, at the time of the assignment of the certificate of purchase, I. was to pay off, but neglected the paylong after the death of P., paid them, with the acment of two of them, and S. subsequently, and crued interest thereon, and had the deed to the land executed by the state to P., held, that the fact of such payment by S. did not give a resultthere was no evidence showing that P. in his puring trust in his favor. Held, further, that, as chase of the land from I. paid for it with partnership funds, S. could not claim that a constructive trust arose or was created in his favor. (Syllabus by the Court.) Appeal from a decree of the circuit court for the county of Jackson, dismissing the appellant's complaint. The appellant commenced a suit against the respondents in said circuit court to have a resulting trust declared in his favor in a certain parcel of land, consisting of 160 acres, situated in what is known as "Sam's Valley," Jackson county, Or., and designated as the "Hyde Ranch." The land is the north-east quarter of section 36, township 35 S., range to the state of Oregon. It appears that one Mat. R. Ish bought the land at a public sale of school lands in Jackson county, made by M. A. Williams, superintendent of common schools |