Osage county, on December 21, 1889, for wrongful conversion of certain cattle and horses. The defendant Jacoby was served with summons in Osage county; the other defendants were served with summons in Lyon county. The case came on for hearing on February 3, 1890, before the justice of the peace, and judgment was rendered by him in favor of Mrs. Jane Jones, against all of the defendants below in that case except Henry Jacoby and Waldo Wooster for $280.78 and costs. From the judgment of the justice of the peace the defeated parties appealed to the district court of Osage county. When that case was called for hearing on March 21, 1890, judgment was rendered by agreement by the district court in favor of Mrs. Jones and against all of the defendants then appealing for $225 and costs of $64.25. A stay of execution of the judgment for 10 days was granted. On the 26th of March, 1890, the defendants in that case, as plaintiffs, filed their petition under section 310 of the Civil Code for a new trial, and obtained from the district judge, at chambers, an order restraining the collection of the judgment until the petition for new trial could be heard. Afterwards, and on the 19th day of April, 1890, the defendant in the new case notified one of the attorneys for the plaintiffs that she would apply to the Honorable William Thomson, judge of the district court of Osage county, at his chambers in Burlingame, in that county, at 10 o'clock A. M., to dissolve the temporary injunction or restraining order. Afterwards the motion to dissolve the temporary injunction was heard and sustained. Exceptions were taken, and the case is brought here by plaintiffs below, those petitioning for the new trial.

T. N. Sedgwick and Robert C. Heizer, for plaintiffs in error. B. F. Hendrix, for defendant in error.

HORTON, C. J., (after stating the facts.) This was a proceeding in the court below under section 310 of the Civil Code for a new trial upon the grounds that the court had no jurisdiction to render the judgment; that the judgment was obtained by fraud and mistake; and that there was a complete defense to the claim upon which the judgment was rendered, which, through a misunderstanding between the plaintiffs and their attorney, was not made. As the plaintiffs applying for the new trial did not prosecute proceedings in error from the judgment of the justice of the peace, but took an appeal to the district court, and as judgment was rendered in the district court by the agree ment of all the parties, through their attorneys, jurisdiction is clearly shown. "Any voluntary appearance of a party to an action which recognizes the general jurisdiction of the court, or which is not made for the special purpose of contesting the jurisv.34P.no.4-23

diction of the court, or for any other special purpose, will be construed to be a general appearance in the case, and will be held to give the court general jurisdiction in the case of such party." Carver v. Shelly, 17 Kan. 472; Cohen v. Trowbridge, 6 Kan. 385, 393; McBride v. Hartwell, 2 Kan. 411, 415; 1 U. S. Dig. (1st Series,) pp. 101, 103, par. 580 et seq. No facts are set forth in the petition charging any fraud in the rendition of the judgment in the district court, occasioned by the adverse party. Indeed, no fraud was alleged, except that no valid claim existed to sue on, or, if one had ever existed, that it had been compromised and satisfied long prior to the commencement of the action thereon. The accident, surprise, and misunderstanding alleged in the petition concerned the negligence, mistakes, and misapprehension of plaintiffs and their attorney. The defendant is no way connected with these acts of omission or commission, which caused the failure of the plaintiffs to prepare for the trial, or make their defense. The allegations of the petition tended to show that the plaintiffs and their attorney were guilty of negligence and ignorance in not preparing for trial. No reasonable diligence was shown. It is the general rule that neither ignorance, mistakes, nor the misapprehension of an attorney, not occasioned by the adverse party, is any ground for vacating the judgment. Neither will relief be granted on the ground that the attorney through design, ignorance, or negligence mismanaged the defense. Freem. Judgm. § 508. In Elder v. Bank, 12 Kan. 242, it was decided that when, in an action regularly commenced and prosecuted without any fraud or fraudulent representations, judgment is rendered by consent against the defendants, they cannot thereafter have the judgment set aside, and a new trial granted, on the ground of the existence of a complete legal defense to the action, the nature and extent of which they were aware of at the time of the entry of judgment." It was also held in Snow v. Mitchell, 37 Kan. 636, 15 Pac. Rep. 224, that "no defense can be set up against a judgment which might, with proper diligence, have been interposed in the action in which the judgment was rendered." "To entitle a party to enjoin a judgment he must show, not only that the judgment was unjust, but that it was not the result of any inattention or negligence on his part." Hanna v. Morrow, 43 Ark. 107. "Equity is loth to open a judgment at law and let in defenses which could have been made when the case was on trial at law, and before the judgment was rendered; and it will never do so when the negligence of the defendant at law is the reason given or apparent from the facts why such defense was not made." Smith v. Phinizy, 71 Ga. 641. Hayne, New Trial & App. § 80, says: "The negligence of the party is no ground for a new trial. The pro

vision of the Code is: 'Accident or surprise which ordinary prudence could not have guarded against.' And the negligence of the attorney is the negligence of the party, within the meaning of the subdivision. The attorney is the agent of the party for the purposes of the trial, and the party cannot make his attorney's negligence a ground for relief." The petition showed upon its face that no cause of action existed in favor

of the plaintiffs and against the defendant, and, as the district judge granted temporary restraining order at chambers, he had the authority to set the same aside at chambers upon a motion properly noticed and heard. A court or judge, upon a motion to dissolve a temporary injunction, is not compelled to refuse the consideration of the same until the final trial of the cause, merely because it appears from the face of the petition that no cause of action is stated, and that, therefore, the temporary injunction was improvidently allowed. Bundrem v. Denn, 25 Kan. 430. The judgment of the district court will be affirmed. All the justices concurring.

1. Where a lease of water power provides for the payment of a fixed sum quarterly unless the supply of water be deficient, when a pro rata proportion of the rents is to be forfeited, the amount of rent in case of an insufficient supply is unliquidated, and hence, in such case, interest on the rent, unless expressly stipulated for, cannot be allowed.

2. Where, in an action for rent of a water power, defendant shows that plaintiff owes him for goods sold to him, and for repairs made on the premises, there is a mutual account, and, under Hill's Code, § 3587, interest can be allowed thereon only "from the day the balance is ascertained."

3. In an action for rent of water power, under a lease which provided that in case the dam and race controlling the power were injured by high water, the lessor should repair them within 10 days after the water had fallen to its average winter stage, plaintiff alleged failure to so repair, though the water receded to its average winter stage February 15th, and continued at or below such stage til February 25th, and defendant denied that the water had so receded. Held, that the court erred in not finding on the issue so made as to the state of the water between those dates.

4. In such case plaintiff would be excused from the making of repairs within the required 10 days after the water had fallen to the average winter stage, if it rose again so as to make impossible the completion of the work in the time agreed.

5. The act of God rendering performance impossible, if relied on as a defense, must be pleaded.

6. A clause in a lease of water power, that in default of a sufficient supply of water the lessor shall forfeit a pro rata proportion of the water rents accruing during the existence of such deficiency, is not a provision for liquidated damages, such as will prevent recovery of other damages by the lessee, when it appears that the deficiency was the result of the

lessor's failure to repair injuries to the race and dam caused by an unusual freshet, and that the rental value of the lessee's mill, which was useless without the power, was $20 per day, while the rent of the power was but $3.

Appeal from circuit court, Lane county; J. C. Fullerton, Judge.

Action by B. J. Pengra against Almon Wheeler. From a judgment for plaintiff, defendant appeals. Reversed.

ing statement by MOORE, J.: The other facts fully appear in the follow

This is an action to recover the rent of and damages for an injury to a water pow er. The facts show that the plaintiff, on February 13, 1888, was the owner of a water power, consisting of a flume, dam, and gates which conducted water from the middle fork of the Willamette river to Springfield Lane county; and the defendant was the owner of a saw and planing mill at tha place, which was operated by water pow er; and at said date the plaintiff, in consid eration of $1,000 per year, payable quarterly. leased said water power to the defendant for the term of 99 years. The contract of lease, among other things, contained the fol lowing provisions: "In case said dams and races are injured by high water or obstructed by drift of timber or gravel or other substance, the lessor herein shall repair the same or remove the obstructions within ten days after the river shall have fallen to an average winter stage, and in default of a sufficient supply of water from any cause shall forfeit a pro rata portion of the water rents accruing thereunder during the time such deficiency may exist; and if the lessor or his assigns does not enter upon the work of repairing within fifteen days after the water has subsided to an ordinary winter stage, this lessee or his assigns may themselves make the necessary repairs, and collect the costs thereof from the owner of the water power, the same being an offset against any accrued or accruing water rents. The owner of the water power shall at all times when logging is in process keep a sufficient depth of water in all parts of the race to make it practicable to move logs through the same when handled in a skilled and workmanlike manner, of the size commonly run, and in default thereof shall pay such damages as the mill owners may sustain for want thereof." That an unusual freshet in the Willamette river on February 3, 1890, carried out the dam and injured the race, and plaintiff, on the 24th of said month, and as soon as the water had receded, commenced to repair the injury, but was unable to complete the work until May 3d. on June 2, 1890, plaintiff assigned all his right, title, and interest in said lease to the Springfield Power & Investment Company, a private corporation, and on June 6, 1891, said corporation reassigned said title and interest, together with all claims for rent or damage, to the plaintiff. Plaintiff's cause of action for rent is (1) $1,000 from June 2,

That

Upon

date to and including the 25th of said month, and for some time thereafter, the water was continuously at or below said stage; and that from February 25th to May 3d the water was at or below the ordinary stage nearly all the time. These allegations were specifically denied in the reply, but there was no allegation therein that plaintiff had been prevented by an act of God from completing the repairs within the agreed time. this issue the court found that the water did not recede to an average winter stage on or about February 15th; that the plaintiff, as soon as it had receded, commenced to repair the injury, and thereafter worked diligently until it was completed, and that defendant was not injured through any fault or negligence of the plaintiff in failing to repair; and by an amended finding states that "it is difficult to determine from the evidence in this case when the water did recede to an ordinary winter stage after the 3d day of February, 1890. The evidence does not show that said river receded to an average winter stage, and remain at or below that stage for ten consecutive days before the 3d day of May, 1890." These findings impliedly admit that the water receded to the proper stage at some time prior to May 3d, but do not appear to have been based upon any issue made by the pleadings. It would appear from such findings that, in consequence of a rise in the river after the water had fallen to the required stage, plaintiff had been precluded from making the repairs. The material issue was whether from the 15th to the 25th day of February, 1890, and for some time thereafter, the water was continuously down to or below an average and ordinary winter stage. The findings are silent as to the time the water receded, and it does not appear therefrom whether or not the water was continuously or at all down to an ordinary winter stage between said dates. The law is well settled in this state that when a cause is tried by the court without the intervention of a jury there must be findings of fact upon all the material issues presented by the pleadings. Drainage Dist. v. Crow, 20 Or. 535, 26 Pac. Rep. 845. There being no finding upon this issue, it must be presumed that it escaped the attention of the court. If the repairs were made within 10 days after the water had fallen to the required stage, defendant has no cause of action on his claim for damages; or, if the finding was to that effect, and there was any evidence to support it. this court would not review such finding. Admitting that a sudden rise of the river, after it had fallen to the proper stage, had prevented the plaintiff from making the repairs within the given time, and this fact were an issue in the cause, is the plaintiff liable for a breach of the conditions of his covenant caused by the act of God? It is a well-recognized principle of law that when it is apparent that the parties have con

tracted on the basis of the continued existence of a given thing, then, on performance becoming due, if, without the fault of the parties, the thing has ceased to exist, the case has become one of mutual mistake, and the duty to perform no longer remains. Bish. Cont. § 588; Chit. Cont. 1070. The contract in the case at bar relates to the lease of the water power. The injury to the dams and race was not a destruction of the power which continued to exist after the flood. The dams and race were incidents of the power, and were to control it. but they did not constitute the power; and hence their destruction or injury did not affect the continued existence of the power. If the stream had, in consequence of drought, failed to furnish the necessary amount of water to operate defendant's mills, this would have been a destruction of the subject-matter of the contract which would have excused performance. The theory that, when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract, had its origin in the dictum of the court in Paradine v. Jane, Aleyn, 26, and this rule is not infrequently applied where the impediment comes from the act of God. But the actual adjudications, while discordant, come far short of this; so that, as a whole, this dictum is not sustained by them. Bish. Cont. § 590. "It is," says Mr. Justice Swayne, "a well-settled rule of law that, if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him." Dermott v. Jones, 2 Wall. 1. The act of God will dispense with the performance of a contract, but to bring the case within the rule of dispensation it must appear that the thing to be done cannot by any means be accomplished; for, if it is only improbable, or out of the power of the obligor, it is not in law deemed impossible. Beebe v. Johnson, 19 Wend. 500. The plaintiff, having agreed to make the repairs within 10 days from the time the water had fallen to an average winter stage, cannot justify the failure to comply with this requirement, if the water continued at or below that stage, by saying that the work could not profitably have been done within the agreed time, since by the employment of more labor the repairs might have been completed within the time. This would have been within the power of the plaintiff, and therefore not impossible; but if. after the water had fallen to the required stage, it immediately rose, and continued high for some time, this would have been such a dispensation as would have rendered the performance of the contract impossible.

If one engages to make repairs before a particular day, and it becomes impossible by the act of God to make them by that day, he will not be liable for a breach of the covenant, if he repairs as soon as possible thereafter. Tayl. Landl. & Ten. § 361. If the plaintiff had intended to rely upon the act of God as a dispensation, he should have alleged this fact, and made it an issue, (Bailey, Onus Prob. 296;) but this he may be able to do in another trial by amendment if he so desire.

The

The plaintiff contends that the parties have stipulated for the amount of damages, and hence they are bound thereby. contract provides that in default of a sufficient supply of water from any cause the lessor shall forfeit a pro rata portion of the water rents accruing thereunder during the time such deficiency exists. "When

ever," says Mr. Sedgwick, "the damages were evidently the subject of calculation and adjustment between the parties, and a certain sum was agreed upon and intended as compensation, and is in fact reasonable in amount, it will be allowed by the court as liquidated damages." Sedg. Dam. (8th Ed.) § 405. The contract provides that plaintiff shall furnish a given quantity of power for a certain sum of money, and stipulates that in default thereof from any cause the defendant shall only pay for. what he obtained. Can it be said from this that the damages had been the subject of calculation and adjustment between the parties? That the parties did not anticipate such an unusual freshet in the river when the contract was executed is inferable from the fact that plaintiff agreed to make the repairs within the given time, and this fact alone would seem to rebut the theory that the damages had been the subject of calculation and adjustment in advance of the injury, or that the sum named had been agreed upon and intended as compensation. The evidence shows that the rental value of defendant's mill was from $20 to $25 per day, and that without the use of the water power it was valueless, while the rent of the water power was only $2.83 per day by the terms of the contract. In Fisher v. Barrett, 4 Cush. 381, the defendants had leased to the plaintiff a part of their mill, and covenanted to make additions to the machinery, and furnish steam power to operate the same. It was further agreed that, in default of a supply of steam power, the rent should be suspended. Defendants neglected to make the additions, and refused to furnish the power. In an action for damages the defendants pleaded that the suspension of the rent was intended to be liquidated damages for the breach of the covenant, and that they were not liable for any other damages. The court held that the damages had not been liquidated. In that case the plaintiff's damages were the result of the defendants' refusal to furnish the motive power. The

damages could not have been less had they arisen from inevitable accident. The injury to plaintiff's business was the measure of his damage, and not the motive with which the defendants refused to furnish the power. This was equivalent to holding that a suspension of the rent was not a reasonable compensation for the damages sustained. It would appear from this that the forfeiture of the rent in the case at bar was not a reasonable compensation for the loss of the use of the mills. The judgment of the court below is reversed, and a new trial ordered.

(24 Or. 529)

ROWLAND v. HARMON et al. (Supreme Court of Oregon. Oct. 23, 1893.) MECHANICS' LIENS-NOTICE OF CLAIM-VALIDITY.

1. A notice of a lien for materials, stating that the lienor has, by virtue of a contract heretofore made with H. and with K., his contractor, furnished materials and done work in plastering a certain dwelling house, the ground on which said dwelling was erected being the property of H., who caused its erection and was its owner or reputed owner, sufficiently complies with Hill's Code, § 3673, providing that the claim filed shall state the name of the person to whom the materials were furnished, such section also making the contractor the agent of the owner.

2. The fact that a notice of lien states $150 as the sum to be credited on the account, when a preponderance of the evidence shows that it should be $152.50, does not affect the validity of the notice, when the claimant is neither willful nor negligent in failing to give credit for the extra $2.50, and contends for the correctness of his statement in good faith. Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Suit by R. J. Rowland against William L. Harmon and others to foreclose a mechanic's lien. From a judgment for plaintiff, defendants appeal. Affirmed.

The notice of lien claim filed by plaintiff was as follows:

"Know all men by these presents, that I, R. J. Rowland, of the city of Portland, in the county of Multnomah, Oregon, have, by virtue of a contract heretofore made with Wm. L. Harmon, of the county of Multnomah, Oregon, with G. C. Killam and T. C. Hewton, his contractors and agents, furnished material and done work and labor in the plastering of a certain dwelling house; the ground upon which said dwelling was erected being at the time the property of Wm. L. Harmon, who caused the said dwelling to be erected, and who was the owner or reputed owner thereof, and is now; said dwelling and land being known and particularly described as follows: A two-story and attic frame dwelling house, with basement, and situated on the following real estate, viz.: Lots 18 and 19, in block 11, in Arbor Lodge, Multnomah county, Oregon, being at the time within the city limits of the city of Portland. That the contract and reasonable price of such work so done by me was the sum of $420 gold coin of the United States. That