(190 P.) the time of his death Williams left $626 in | property of the husband. It also discloses money and notes. It is this tract of land and that the income from the separate and compersonal property which is involved in this munity property was mixed and mingled by action. them without any idea of keeping the separate property of the husband distinct from the community accumulations. The facts disclosed by the record and legitimate inferences to be drawn therefrom bring this case within the rule that— Charles Williams died on June 6, 1912, leaving him surviving his wife and several children by a former marriage, and thereafter, on November 30, 1912, Eliza B. Williams died, leaving her surviving a daughter by a former marriage. The probate court decreed that all property in the hands of the executors of the estate of Charles Williams, deceased, was community property, and ordered that it be distributed as such, which decree and order was affirmed by the district court, from which this appeal is prosecuted. The principal issue in this case is whether or not the assets of the estate of Charles Williams, deceased, are separate or community property, or if mixed, what portions are separate and what portions community. [1] C. S. § 4659, provides all property owned by the husband before marriage, and that acquired by gift, bequest, devise, or descent is his separate property, and section 4660 provides all other property acquired after marriage by either husband or wife, including rents and profits of the separate property of the husband and wife, is community property. The property in question, having been acquired during coverture, is presumed to be community property, and the burden of proof rests on the party who asserts that it is separate property to show such fact by a preponderance of the evidence. Humbird Lumber Co. v. Doran, 24 Idaho, 507, 135 Pac. 66; Chaney v. Gauld Co., 28 Idaho, 76, 152 Pac. 468; 21 Cyc. 1653; 5 R. C. L. 849; 6 Ency. Ev. 826, 827. [2] The separate property of either spouse may undergo mutations and changes during the marriage relation, and still retain its separate character, yet the proof to trace and identify it in its changed condition must be clear and satisfactory. Ahlstrom v. Tage, 31 Idaho, 459, 174 Pac. 605. "An appellate court will not disturb the judgment of the trial court, because of conflict in the evidence, where there is sufficient proof, if uncontradicted, to sustain it." Sweeten v. Ezell, 30 Idaho, 154, 163 Pac. 612; Davenport v. Burke, 30 Idaho, 599, 167 Pac. 481; Lambrix v. Frazier, 31 Idaho, 382, 171 Pac. 1134; Wallace v. Hartford Fire Ins. Co., 31 Idaho, 481, 174 Pac. 1009; Labonte v. Davidson, 31 Idaho, 644, 175 Pac. 588; Fleming v. Benson, 178 Pac. 482. (Supreme Court of Oregon. June 29, 1920.) 1. Appeal and error 627 (2)-Appeal will be dismissed where transcript is not filed within 30 days. Where an appeal was perfected April 16, 1920, and no order extending the time for filing the transcript appeared of record, the appeal will, under L. O. L. § 554, as amended by Gen. Laws 1913, p. 618, requiring the transcript to be filed in 30 days, be dismissed, under sub division 2, if the transcript is not filed within the required time. 2. Appeal and error 1231-Upon dismissal of appeal judgment will be enforced against the appellant and his sureties. Where an appeal was dismissed, under L. O. L. § 554, subd. 2, as amended by Gen. Laws 1913, p. 618, for failure of appellant to file a transcript within 30 days, judgment will, under subdivision 3, be enforced against the appellant and his sureties. In Banc. Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge. [3] Appellants contend that only $250 of the $3,500 owned by the deceased and his wife at the time of the sale of the farm was community property. This was sought to be shown by the relative value of the original 90-acre tract and the homesteaded tract which is admitted to be community property at the time of the sale. Evidence was offered tending to show that said tracts were worth $2,250 and $250, respectively. It is also contended that the $1,000 on deposit in the bank at Logan, Utah, at the time of the sale of the farm, was the proceeds of the sale of cattle which the deceased, Charles Williams, owned at the time of the marriage, and therefore separate estate. The record discloses no effort on the part of the deceased, Charles Williams, and his wife to keep the community funds distinct from the separate miss an appeal. The defendant received a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by G. H. Russell against C. Sam Smith. From a judgment for defendant, plaintiff appeals. On motion to dismiss. Appeal dismissed. M. E. Brink and Jay H. Upton, both of M. R. Elliott, of Prineville, for respondent. Judgment in the court for costs and disbursements, from which judgment plaintiff appealed. [1] The judgment was rendered on February 17, 1920, and the notice of appeal and undertaking were served on defendant on April 10, 1920. The appeal was therefore perfected on April 16, 1920. No order extending the time to file a transcript on appeal appears of record. Section 554, L. O. L., as amended by chapter 320, Gen. Laws of 1913, requires that the appellant shall file a transcript on appeal within 30 days after the appeal has been perfected. The transcript was therefore due here at the latest on the 17th day of May, 1920, but no transcript has been filed. Defendant moves to dismiss the appeal. [2] Subdivision 2 or section 554, supra, provides that if the transcript is not filed within the time provided, or within any extension of such time, the appeal shall be dismissed. Subdivision 3 provides that upon such dismissal the judgment may be enforced by the appellate court against the appellant and his sureties. The appeal will therefore be dismissed and the judgment affirmed, both against the appellant and his sureties, with defendant's costs and disbursements in this proceeding. (96 Or. 630) Suit for divorce by Belle Steele against D. D. Steele. Decree for defendant, and plaintiff appeals. Reversed, and decree for plaintiff. M. E. Pogue, of Salem, for appellant. Smith & Shields, of Salem, for respondent Max Gehlhar, Dist. Atty., of Salem, for the State. BENNETT, J. This is a suit for divorce brought by Mrs. Steele, the plaintiff. The plaintiff and defendant had been once married and divorced, but became reconciled and remarried, largely on account of their daughter, apparently, who is now about 14 years of age. The suit is brought on the ground of cruel and inhuman treatment and personal indignities rendering life burdensome. The plaintiff testified: he didn't care for me. The words he used, 'He "He wasn't kind and he told me repeatedly didn't give a damn for me,' and it was only because of our daughter that he lived with me. * * When I went after my trunks he told me he didn't give a damn for me; that he had ceased to love me." time in 1918 you asked him for money for treat"Q. Now, there is a statement here that some ment by a physician. State to the court what was said at that time. A. Well, my health was very poor at that time, and I asked him for money to come to town. I was taking treat ments, and he wouldn't give me any, and I made the remark, 'Donald, if you don't give me money, how do you expect me to get it?' And he said, 'I don't give a damn how you get it or where you get it.'" STEELE v. STEELE. (Supreme Court of Oregon. June 29, 1920.) 1. Divorce 29-Evidence held to show personal indignities entitling plaintiff to divorce. Finally the plaintiff went to Salem to take Where defendant had frequently stated care of the defendant's mother, who was very with profanity that he did not care for plain-old and very sick, and who was living at the tiff and had refused to permit her to return home after she went to take care of his sick mother, the charge of personal indignities rendering life burdensome, which is ground for divorce under L. O. L. § 507, was sustained. 2. Divorce 29-Personal violence unnecessary to "personal indignities." To constitute personal indignities which are a ground for divorce under L. O. L. § 507, it is not necessary that there be actual personal violence or attempt at personal violence. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Personal Indignity.] 3. Divorce 308-Defendant ordered to pay $15 per month for support of daughter. Where plaintiff had been awarded a divorce with custody of her 14 year old daughter, but it appeared that defendant had no property except his earnings, and that he was in poor health and capable of earning only about $50 per month, he will be required to pay $15 per month for the support of the daughter. In Banc. home of defendant's sister in Salem. After being at Salem for the purpose of taking care of his mother, for a week or two, she went back to Turner, where she and her husband lived, to attend the graduating exercises of her daughter. He did not want her to return to Salem, and when she explained that there was no one else to help his sister take care of their mother, and that they had arranged to go back, he told her if she went to Salem to stay and never come back to his home again, and he has never since consented to her returning home. All of this is corroborated by the daughter and by defendant's sister, who testified-and the defendant himself admits-that he ordered her to stay away if she went to Salem to take care of his mother, and that he has never since been willing for her to come back. And defendant's own sister testified that at different times she had heard him say in the presence of the plaintiff that "he didn't care for her, that he had ceased to love her, and Appeal from Circuit Court, Marion County; that he would never live with her again." Geo. G. Bingham, Judge. The defendant makes no defense except as (190 P.) to the matter of support for the daughter, but | covered his health, and is not able to do hard the district attorney appears on behalf of the work. We think under the circumstances he state and contests the divorce. There is no evidence or claim that plaintiff has ever misconducted herself in any way or been guilty of any kind of unlawful conduct. [1] We think the evidence is sufficient to sustain the charge of personal indignities. Section 507, L. O. L., provides that the marriage contract may be dissolved for "cruel and inhuman treatment or personal indignities rendering life burdensome." should contribute $15 a month toward the support of the daughter during her minority if she shall continue to remain dependent upon her mother and to live with her during that time. This is a meager sum, it is true, but under the circumstances it seems all the father will be able to contribute after he takes care of his own living and necessary personal expenses. We do not see how it could be otherwise than to make a woman's life burdensome to live with a husband who had ceased to care for her, and who did not want to live with her and was frequently telling her so in such a coarse and brutal way, and that he did not "care a damn for her." We think no good purpose could be served by compelling a woman to live with a man under such circum-1. stances. [2] It was supposed at one time that actual personal violence, or attempt at personal violence, was necessary to constitute cruel and inhuman treatment or personal indignities; but it is now well settled that that is no longer the law, if it ever was. (Supreme Court of Oregon. June 29, 1920.) Master and servant 39(2)-Evidence in avoidance of written resignation inadmissible, In absence of plea. charge, prior to termination of contract, eviIn an employé's action for wrongful disdence that employe's written resignation and acceptance was at request of the employer and merely for purpose of appearances, was inadmissible, in absence of a plea in confession and avoidance. 2. Master and servant 37-Resignation defeats recovery for wrongful discharge. Section 88, 19 C. J., states the law thus: "It was formerly thought that actual bodily harm, or apprehension thereof, must be shown to authorize granting a divorce on the ground An employé, tendering his written resignaof cruelty, and this doctrine seems still to pre- tion, which is accepted by the employer, cannot vail in a few jurisdictions; but this view has recover for wrongful discharge prior to terbeen generally repudiated, and the modern doc-mination of contract, though the resignation trine is that any unwarranted conduct by either was at the employer's request and was made spouse which causes the other mental suffering merely for the sake of appearances. of sufficient degree constitutes such cruelty as will authorize a divorce." There are no two cases exactly alike, but we think this case is well within the principles announced by this court in Lisenby v. Lisenby, 89 Or. 273, 173 Pac. 888, and Railsback v. Railsback, 92 Or. 623, 182 Pac. 131. We think the plaintiff is entitled to her decree of divorce and for the custody of the daughter. [3] As to the allowance for the support of the daughter there is some difficulty. The parties seem to be working people and are poor. Neither of them have anything except their earnings. The defendant is engaged in the butcher business, apparently in a small way, in Turner, and his only revenue is from that business. His testimony in relation to the matter is undisputed, and he claims his receipts from the business over and above the expenses are about $50 per month. As we have said, these people are working people, and the daughter has now reached the age where she can help some in her own support. 3. Master and servant 39 (2)—Variance as to salary claimed held not fatal. In an action for wrongful discharge, variance between allegation that plaintiff was employed at a fixed salary per month and 10 per cent. profits during the year, after deduction of an amount equal to 10 per cent. of the capital stock, and proof that he was employed at such a salary, and that it was subsequently agreed that he was to receive the 10 per cent. of the profits, held not fatal, under L. O. L. § 97. 4. Master and servant 43-Construction of term "profits" held question for court. In employé's action for wrongful discharge in violation of contract entitling him to certain per cent. of profits, where there was no underconstitute profits, the interpretation of the constanding between the parties as to what should tract with respect to the meaning of the term "profits" held for the court. Judgment 5. Appeal and error 1172(3) not reversed, where good as to one cause of action, though verdict single. In action on two counts, appellate court, The defendant, according to his testimony in holding judgment correct as to first cause of which is also undisputed, has lately been sick action and incorrect as to other cause of acand partly paralyzed for a period of three ortion, will not reverse judgment, though verdict four months, and he has never entirely re- of jury was for a single sum, where the amount For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and reverse it as to second cause of action. to which plaintiff was entitled under the first [untarily abandoned the employment and cause of action could be ascertained from the abandoned all efforts to comply with the conrecord, and the appellate court in such case ditions and earn the additional compensation. will affirm judgment as to first cause of action It is further alleged that on August 1, 1917, defendant's stock of merchandise amounted to $208,918.68, its bills and accounts receivable amounted to $152,616.26, and its indebtedness to the bank amounted to $95,000. It is also averred that his salary of $350 per month had been paid in full to August 1. Department 1. Appeal from Circuit Court, Multnomah County; George W. Stapleton, Judge. Action by V. F. Martin against the Gauld Company. Judgment for plaintiff, and defendant appeals. Affirmed as to the first cause of action, and remanded, with direction to enter nonsuit as to second cause of action. This is an action wherein plaintiff seeks to recover damages for breach of a contract of employment. The complaint sets up two causes of action. In the first it is alleged that in February, 1916, defendant employed plaintiff as its manager and agreed to pay him $250 per month, and in addition thereto 10 per centum of the profits made by defendant during the year 1916, after deducting from such profits 10 per centum of the capital stock of defendant. It is alleged that plaintiff fully performed his obligations under the agreement; that the business during that year earned a profit of $42,000, and that after deducting 10 per centum of the capital stock, $15,000, there remained a profit of $27,000, of which plaintiff is entitled to 10 per cent., or $2,700; that the fixed salary of $250 per month has been paid, but that defendant refuses to pay the agreed share of the profits to plaintiff, and he therefore asks judgment thereon for $2,700. The second cause of action avers that in February of 1917, defendant employed plaintiff as its manager, agreeing to pay him a fixed salary of $350 per month, for the full year, and in addition thereto agreed that, if defendant's stock of merchandise should be reduced to a value not exceeding $170,000, and accounts and bills receivable reduced to and maintained at a sum not exceeding $120,000, and defendant's indebtedness to the bank reduced to and maintained at a sum not exceeding $85 000, then and in that event defendant would pay to plaintiff as additional compensation 10 per centum of the profits received in money during said term of emnployment. It is then alleged that on August 1, 1917, defendant wrongfully discharged plaintiff, without cause, thereby preventing him from bringing the business to the agreed basis, and earning the 10 per centum of profits provided for in the contract, as he otherwise would have done. For this cause he prays for damages in the sum of $5,000. Defendant's answer to the first cause of action is a denial. As to the second cause of action, defendant alleges that on August 1, 1917, about having complied with any of the conditions to entitle him to compensation under the profit-sharing agreement, he vol Plaintiff's reply consists entirely of denials. The cause was tried to a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $4,450, from which defendant appeals. BENSON, J. (after stating the facts as above). In considering this case, we shall adopt the order pursued by counsel, and in the first instance direct our attention to the second cause of action. This cause must stand or fall upon the question as to whether plaintiff resigned his position or was wrongfully discharged. Plaintiff testifies that on the evening of August 1, Mr. Flegel, as a managing director of the defendant corporation, said to him, "Well, I tell you, Martin, Mr. Alvord and I have decided that we should change the management of the company; you had better retire." To which the plaintiff replied, "All right." And that thereafter some discussion occurred looking to a purchase, by him, of the business, and that on the next morning he wrote and mailed this letter: "The Gauld Company, "Portland, Or. Aug. 2, 1917. "Mr. A. F. Flegel-Dear Sir: The financial consideration is too heavy for me to assume at this time. I herewith hand you my resignation as manager of the company. I will be pleased to have you so regulate matters so I may get away as soon as possible. However will gladly stay as long as you think necessary to show my successor whatever is required. "Wishing my successor, yourself and the company the best of success, I am, "Respectfully, V. F. Martin." In reply to which he received the following: "Flegel, Reynolds & Flegel, "Attorneys at Law, "Portland, Oregon, Aug. 3, 1917. "Mr. V. F. Martin, % The Gauld Company, 69 N. 12th St., City-My Dear Martin: I have your letter of Aug. 2d, with the information that the financial burden was too heavy for you to assume in connection with the purchase of the Gauld Company business, and sincerely re (190 P.) gret your inability to make your financial arrangements, for the reason that I was determined to give you every preference, both in regard to price and to terms, but I was seriously afraid that the investment was, as you have found, too large. month, and that in March it was agreed that he should have, in addition to such salary, 10 per cent. of the profits earned during the year, after deducting 10 per cent. of the capital stock. Upon the subject of variance between allegations and proofs, section 97, L. O. "The board of directors have determined to accept your resignation, to take effect immedi-L., says: ately, and you are hereby authorized to draw a check for your August salary, and turn the business over to Mr. Creasey, assistant manager. Yours very truly, "Board of Directors of the Gauld Company, "By A. F. Flegel." Plaintiff contends that this correspondence does not state the actual facts at all; that in truth he was peremptorily discharged, and that the foregoing correspondence was indulged in merely "to save his face," or, as he explains: "I thought that was the most graceful way. I was discharged, and I thought that was the most graceful way out of it. It is usual, when a man is discharged, to ask for his resignation; that is the most graceful way, of course." "No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." In the present case, there is no contention upon the part of the defendant that there was any different agreement as to profit sharing, and a difference of a few days in time between making the original contract and the subsequent modification cannot have misled defendant in making its defense, which was based upon the contention that there was never any agreement of any sort upon that subject during that year. [4] It is next urged that the court erred in refusing defendant's request for the following instruction to the jury: The letter of resignation, written and mailed by the plaintiff, and the written reply of defendant, accepting the same, taken togeth-contracted with plaintiff to pay plaintiff, in er, constitute a contract, which, upon its face, is valid and binding upon the parties. The plaintiff admits the execution of these writings, which are perfectly clear and free from ambiguity, but insists it was a compulsory resignation. [1, 2] In other words, although his reply contains no plea other than a denial, he of fers evidence which admits the execution of a written contract and seeks to avoid its legal effect. It is elementary that, in the absence of a proper pleading, such evidence in avoidance cannot be considered. But, even if there were a proper plea in confession and avoidance, we think the evidence submitted totally fails to establish any ground for escaping the legal effect of the written resignation and acceptance. While there is some conflict in the authorities upon this subject, we think the better reasoning supports the conclusion reached in Wharton v. Christie, 53 N. J. Law, 607, 23 Atl. 258, and Merrill v. Wakefield Rattan Co., 1 App. Div. 118, 37 N. Y. Supp. 64. The motion for a judgment of nonsuit should have been allowed. [3] Regarding the first cause of action, defendant's first contention is that there is a fatal variance between the contract as alleged in the complaint and that proven. The complaint avers that in the month of February, 1916, plaintiff was employed as manager of defendant's business, at a fixed salary of $250 per month, and was to receive, at the end of the year, 10 per cent. of the profits earned during the year, after deducting therefrom an amount equal to 10 per cent. of the capital stock. The evidence of the plaintiff is to the effect that in February he was employed as manager at a salary of $250 per "If you find from the evidence that defendant addition to his salary, 10 per cent. of the profits for 1916, after deducting 10 per cent. on the capital stock, then it is for you to determine from the evidence whether profits were made in the year 1916, and, if so, how much. It is for you to determine whether profits, within the in the aggregate amount or value of merchanmeaning of such contract, included an increase dise and the amount of uncollected bills, or whether, on the other hand, such profits comprised only gains realized in money, and available for distribution." The vice of this instruction lies in the fact that it leaves the question of what constitutes profits to be determined by the jury. There is no evidence in the record tending to show that, if there was any profit-sharing agreement for the year 1916, there was any understanding between the parties as to what should be the meaning of the term, and therefore the interpretation of the contract was exclusively a matter for the court. Upon this subject the court advised the jury as follows: "On the proposition as to whether or not profits were earned during the year, the court will instruct you that profits in the ordinary business acceptation of the term, means the earning or increased value of the assets of the business over and above the cost price of the goods that have been handled during the period, plus the cost and expenses of operation or overhead charges, as it is called, and plus the cost of handling the financial operations of the business. So that, if in that connection you find that at the expiration of the period covered in the first cause of action, that there was disclosed in the annual statement or annual auditor's report that there was an accumulation or addition to the value of the assets |