versed, with costs to the appellant, and one entered here in accord with this opinion. Pending such application of the fund the existing injunction will remain in force and effect. BENSON, J., not sitting. This is an action for money had and received. The complaint alleges, substantially, that on September 6, 1910, defendant had and received from one Harry R. Garrett $5,000, which she then and there undertook and agreed to pay to the order of said Garrett one year after date, with 6 per cent. interest; BROWN, J., had not qualified and took no that said money was so had and received part in the consideration of this case. (98 Or. 155) through defendant's agent, Charles E. Herron; that on September 6, 1910, Garrett assigned to plaintiff his interest in said money and claim therefor; that plaintiff is now the owner thereof; and that on September 1, UNITED STATES NAT. BANK OF VALE v. 1911, plaintiff gave defendant notice of such SHEHAN. (Supreme Court of Oregon. Nov. 30, 1920.) 1. Mortgages497(1)-Decision for defendant in foreclosure held conclusive against claim of money had and received by defendant. Where complaint in foreclosure suit, in addition to setting forth the power of attorney under which note and mortgage were executed, clearly insufficient therefor, alleged, to show ratification of the agent's act in borrowing the money and executing the note and mortgage, that the money was applied to defendant's use and benefit, all of which benefits she accepted and retained, and the court found the equities to be with defendant, such decision was res judicata of plaintiff's claim, sought to be enforced in a subsequent suit, that defendant was liable for the money advanced on the note and mortgage as for money had and received. 2. Judgment 527-Opinion looked to, to termine matters concluded. assignment, and demanded payment, which was refused. Defendant answered, denying every allegation of the complaint except the corporate existence of plaintiff, and for a further and separate defense pleaded as an estoppel and in bar of the present action the judgment of this court in the case of U. S. National Bank v. Herron et al., reported in 73 Or. 391, 144 Pac. 661, L. R. A. 1916C, 125, attaching as exhibits to such answer copies of the complaint, answer, findings, decree, and judgment on the mandate in the case last mentioned. A general demurrer to the answer being overruled, plaintiff filed a reply, first putting at issue all the affirmative matter in the answer, and for a further and separate reply alleging: "That the suit referred to in defendant's ande-swer herein was, as to this defendant, a suit brought to foreclose a lien alleged to have been created by her by a certain mortgage alleged to have been executed by one Charles E. Herron as her attorney in fact and by virtue of a grant of power theretofore given him by defendant here, and was not a suit or action against this defendant to obtain a judgment at Where there was only a general finding, recourse may be had to the court's opinion to show what was actually decided, relative to the question of the matters as to which the decree is res judicata. 3. Judgment 720—Conclusive on matters in law or otherwise against her, nor to obtain any issue. A fact properly in issue, and necessary to the determination of the case, is by the decree on the equities concluded from re-examination in a subsequent suit or action between the parties. personal judgment whatever against her, except such as could be based upon her written contract. "That plaintiff's right to foreclose in said suit against this defendant was wholly dependent upon the issue therein as to whether or not 4. Judgment 720-Conclusive irrespective of the written contract as expressed in two cer form of action. Relative to a fact in issue, and necessary to the determination of the case, being finally concluded by the decision, as between the parties, it is immaterial that the form of action differs, as that the first is a suit to foreclose a mortgage, and the second an action for money had and received. In Banc. tain notes and the mortgage given to secure them was her 'deed,' and she contended therein only that the written contract exceeded the grant of power conferred, and for that reason she was not bound, and plaintiff for the purpose of showing that this defendant was have exceeded his authority, set forth and albound thereby notwithstanding her agent may leged the facts shown by paragraph 16 of its amended complaint therein as set forth in paragraph 4 of her answer herein and so shown by Appeal from Circuit Court, Malheur Coun- her Exhibit A attached to said answer. ty; Dalton Biggs, Judge. "That in the suit referred to in the answer of defendant, it was not determined or decided as Action by the United States National Bank a matter of law or fact that the defendant was of Vale against Catherine L. Shehan. Judg- not indebted to plaintiff for money had and rement for defendant, and plaintiff appeals.ceived to her use and benefit, and such cause Affirmed. of action, and the facts upon which it is or (193 P.) may be based, have never been determined in the suit referred to, nor in any suit or action, it having been only held in said suit that the defendant did not authorize the execution of the notes and mortgage referred to in the answer, and did not subsequently ratify the execution thereof. That plaintiff's cause of action herein is not based upon any note or mortgage, but is solely for the purpose of recovering moneys advanced by plaintiff for the use and benefit of defendant, which in law and equity she ought to repay." By agreement of the parties the case was tried by the court without a jury, and on August 11, 1919, the court made its findings of fact and conclusions of law in favor of the defendant. It found in effect that the plaintiff was barred and estopped from prosecuting this action by the judgment in U. S. National Bank v. Herron et al., supra; further, that defendant did not receive the $5,000 mentioned in plaintiff's complaint; and that she had never received any benefit from said sum, or any part thereof, or prom ised to pay the same. It was also adjudged that said sum was not had or received from Harry R. Garrett by or through Charles E. Herron as agent for the defendant, and that plaintiff's claim was not enforceable against defendant. A general judgment was entered in favor of defendant, from which judgment plaintiff appeals. J. W. McCulloch, of Ontario (W. W. Wood, of Ontario, on the brief), for appellant. said instruments paid over to the said Charles E. Herron, and the whole thereof was thereupon by said Herron applied wholly to the use and benefit of the defendant Catherine L. Shehan, by investments in her business pursuits and to the payment of her just debts and liabilities, all in Malheur county, Or., all of which benefits she, the defendant Shehan, then and there accepted and retained, and she does now still have and retain the same." The view taken by this court was substantially that the mortgage and notes tried by the standard of the power of attorney pleaded in the complaint were beyond the authority of the agent to execute, and in that view, had it not been for the additional allegation that defendant Shehan had actually received and had the benefit of the money, we should have been compelled to hold that the complaint in that case did not state facts sufficient to constitute a cause of suit. It goes without saying that if Herron, as agent in the manner in which he borrowed the for Mrs. Shehan, had exceeded his authority money from Garrett, and yet in spite of that want of authority Mrs. Shehan had received the money and used it, these would have been such acts as would have cured the original lack of authority in Herron, and rendered the notes and mortgage enforceable, and would have authorized this court to enter a decree foreclosing the mortgage. The allegation quoted was therefore not only prop W. H. Brooke, of Ontario (R. W. Swag-er, but necessary to plaintiff's cause of suit, ler, of Ontario, on the brief), for respondent. MCBRIDE, C. J. (after stating the facts as above). [1] If our decision in the case of U. S. National Bank v. Herron et al., is res adjudicata as to plaintiff's claim here, then the judgment in the case at bar must be affirmed. We are of the opinion that it is a bar. For a general statement of the pleadings and facts urged in the case of U. S. National Bank v. Herron et al., reference is made to the majority and dissenting opinions therein. To make the matter clear it may be added that the complaint in that case set forth as an exhibit the power of attorney upon which Herron proposed to act in borrowing the money, which power this court held to be insufficient to authorize him to borrow the money upon the terms which he did. That this view might be taken by the court trying the case, from a mere inspection of the complaint and exhibits, namely the notes, mortgage, and power of attorney, must have been in the mind of the astute pleader who drew the complaint in that case, and the pleading was therefore reinforced by the following allegation: "That said notes and said mortgage were given to secure a loan of $5,000 which sum in cash, lawful money of the United States of America, was on the execution and delivery of and, being controverted, its truth or falsity was clearly put in issue; and the determination as between these parties would be final in any tribunal wherein it might thereafter arise. We could not To put the argument more clearly: This court could not have found, as it did in the foreclosure suit, that the equities were with the defendant, Shehan, without finding in fact that the allegation above quoted was not sustained by the evidence. have found that the equities were with the defendant, Shehan, if we had found in fact that she had received and had the ben-. efit of the money obtained by Herron from Garrett. Practically, this was the main point in dispute outside of the question of the validity of the power of attorney to authorize the borrowing of the money upon the terms upon which the loan was effected. largely into the determination of the former That the allegation in question entered case is indicated in both the majority opinion rendered by Justice Ramsay and in the minority opinion by Justice Bean, Justice Ramsay holding, in substance, that the notes and mortgage in suit were beyond the power of Herron to execute, and that there was no evidence that Mrs. Shehan had ever re ceived the money, or that it had been expended for her benefit, and Justice Bean contending that Herron had acted within his authority in executing them, and alternative- | for any deficiency that might exist after sale ly that, even if such were not the case, the of the mortgaged premises. evidence indicated that she had had the benefit of the money obtained by the loan. The dissenting opinion concludes thus: "Viewing the transaction as delineated by the documents and evidence contained in the record, we think that any departure from the terms of the power of attorney, in the execution thereof, was impliedly ratified by Mrs. Shehan. The plaintiff's witnesses have given their version of the important dealings, and, if their theory or delineation was incorrect, it was incumbent upon the defendants to explain or show wherein the evidence of plaintiff was wrong. The equities are with the plaintiff. The judgment of the lower court should be affirmed." As before intimated, the allegation quoted was the only thing that would have prevented plaintiff's case from being dismissed on a general demurrer, as the pleadings themselves showed that the notes and mortgage were executed without authority. The conclusion here reached necessarily results in the affirmance of the judgment of the circuit court, and renders it unnecessary to consider the objections raised by counsel to the admission of certain depositions offered by defendant. The judgment is affirmed. RY. CO.* (98 Or. 620) (Supreme Court of Oregon. Nov. 30, 1920.) 1. Eminent domain 302-Where no damages for occupation before payment are shown, only nominal damages can be had. [2-4] We have referred to the opinion in the case because no findings were specifically made beyond the general one that "the SANDERS et ux. v. PORTLAND & O. C. equities are with the defendants," and in such cases the court may have recourse to the opinion to show what actually was decided. Gentry v. Pacific Live Stock Co., 45 Or. 233, 77 Pac. 115. But beyond this we take it that the rule is firmly established that a fact properly in issue between parties, necessary to the determination of the case, will be finally concluded from re-examination in any subsequent suit or action be tween the same parties. Freeman on Judg ments (4th Ed.) § 249, page 441 et seq., and authorities there cited; Underwood French, 6 Or. 67, 25 Am. Rep. 500; Barrett v. Failing, 8 Or. 152; Glenn v. Savage, 14 Or. 567, 13 Pac. 442; Applegate v. Dowell, 15 Or. 513, 16 Pac. 651; La Follett v. Mitchell, 42 Or. 465, 69 Pac. 916, 95 Am. St. Rep. 780; Caseday v. Lindstrom, 44 Or. 309, 315, 75 Pac. 222; Wales v. Lyon, 2 Mich. 276; King v. Chase, 15 N. H. 9, 41 Am. Dec. 675. Nor is the form in which the V. subsequent action is prosecuted material. It would be intolerable if a party, having chosen his forum and presented an issue for trial, should be permitted after defeat, by simply changing the form of his action, to relitigate the same matter in a new form of action. Simpson v. Hart, 1 Johns. Ch. (N. Y.) 91; Putnam v. Clark, 34 N. J. Eq. 532; Phillips v. Pullen, 45 N. J. Eq. 830, 18 Atl. 849. The contention that plaintiff could not have recovered in the former suit on the ground that defendant had actually received and used the money is plausible, but unsound. If she had so received and used the money, the court would have been compelled to hold that she had thereby ratified the act of Herron in borrowing it and executing the mortgages, and, as she was subject to the jurisdiction of the court by her answer, a decree could have been rendered, foreclosing plaintiff's mortgage, with a subsequent judgment against defendant in personam In an action against a railroad company for ejectment and damages for taking possession of land after condemnation and before payment of damages assessed, where there was no evidence of damage by reason of defendant's occupation, even if wrongful, plaintiff could recover only nominal damages, and the fact that money for the condemned land was subsequently paid to mortgagee under court order is immaterial. 2. Eminent domain 244 - Judgment fixing price does not authorize condemning party to take possession without payment. A judgment fixing the value of land does not authorize the party condemning to take possession without paying the ascertained value into court as required by law. 3. Eminent domain 244 Owner's appeal from condemnation judgment does not dispense with necessity of payment before taking land. The owners prompt appeal from a preliminary judgment assessing damages did not dispense with the necessity of the condemning railway company's paying the damages assessed; for although Or. L. § 7104, provides that such appeal shall not prevent the corporation from using the land, yet the compensation must Const. art. 1, § 18. be first assessed and tendered as required by 4. Eminent domain 280-Whether failure to object to condemning corporation's taking land without paying award amounted to a license held not material where no damages shown. Whether owner's failure to object to con demning corporation's taking immediate posses sion of the land and constructing railroad thereon amounted under the circumstances to a license was not material in an action by the owners where no damages were shown, par For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (193 P.) ever since held the same and operated its railway over it. The defendant here did not pay to the clerk the award of damages made by the court before taking possession of the land, and the mandate in the condemnation case was never entered in the circuit court until June 7, 1918, one day after this action was begun, when the defendant here caused the same to be entered, paid to the clerk the $235, with accrued interest, and obtained its final judgment condemning the land, and a further judgment against Sanders and his wife for $124, being its costs on the appeal. The amount paid by the defendant herein to the clerk on June 7, 1918, was paid by that officer to the state land board, to be applied on its mortgage. This application by the Appeal from Circuit Court, Multnomah clerk of the proceeds of the judgment was County; W. N. Gatens, Judge. Action by W. A. Sanders and wife against the Portland & Oregon City Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed. The complaint in this case is predicated upon two separate causes of action. The first is in ejectment to secure possession of a tract of about 32 acres of land situated in Multnomah county, Or. The second cause of action alleges that about November 1, 1915, the defendant wrongfully and without right entered upon the said land and constructed a line of railway across the same, and is now operating the railway. General and special damages therefor are alleged to the extent of $1,500. The facts were stipulated and the findings of the court substantially follow the stipulation. The conclusion of law is that the plaintiffs are not entitled to recover. protested by the plaintiffs here, but no remonstrance was made to this defendant, and it had no knowledge of such application. It appears that the plaintiffs have paid the taxes upon all the tract owned by them, including the strip occupied by the defendant railway, amounting in all to $242, and that the defendant has paid no taxes on said strip, except that in 1917 and 1918 it paid taxes upon its entire trackage and right of way upon a mileage basis. There was no evidence or indication as to the value of the land or the rental value of the portion occupied by the defendant railway, and defendant did not occupy or claim the right to use any other part of said strip. The court found for the defendant, and plaintiffs appeal. J. F. Shelton, of Portland (G. E. Hamaker, of Portland, on the brief), for appellants. J. N. Hart, of Portland (Hart & Hart, of Portland, on the brief), for respondent. MCBRIDE, C. J. (after stating the facts as above). [1] We will consider the causes of action in inverse order to which they are presented. As there is no evidence of damage by reason of defendant's occupation of the land, even if such occupation was wrongful, plaintiffs could recover only nominal damages. In the absence of showing special or other damages, these nominal damages were amply compensated by the payment of interest on the amount of the award from the date thereof until June 7, 1918. The fact that the amount awarded plaintiffs was paid by the clerk to the state land board to be applied on the mortgage, instead of being paid to plaintiffs, can have no bearing here. Such payment was strictly in accord with the preliminary judgment rendered in the con The circumstances leading up to the present litigation find their inception in Portland & O. C. Ry. Co. v. Sanders, 86 Or. 62, 167 Pac. 564. In that action the defendant here sought to condemn for railway purposes a strip of land 20 feet in width across the tract described in the complaint here. The plaintiffs in this action, defendants in the condemnation proceeding, admitted every allegation of the complaint except the damages, and upon the trial the damages were assessed at $235. The state land board of Oregon, having a mortgage upon said land, was made a party defendant, and in the judgment of condemnation it was ordered that the clerk should pay the damages awarded the then defendants Sanders to said land board. An appeal was taken to this court by the defendants Sanders, and the judgment of the circuit court was affirmed. The preliminary judgment of condemnation was entered in the circuit demnation proceedings, which was affirmed court in February, 1916, and pending the by this court, without, so far as appears appeal therefrom by Sanders and his wife, from the opinion in that case, any objection the defendant in the present action in June, upon that ground urged by these plaintiffs. 1916, entered upon the lands and constructed [2] It is contended with some show of its railway along the 20-foot strip in contro-plausibility that the failure of defendant versy in the condemnation action, and has to enter the mandate of this court to pay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the award and to obtain a final judgment of intent is to be deduced from the acts of the condemnation for a period of over 27 months party. The defendant has not shown any after the preliminary judgment of the circuit intent to abandon the proceedings, except court in the condemnation proceedings con- that it delayed entering the mandate of this stituted an abandonment of such proceedings. court for a period of about nine months after It is thoroughly established by the decisions our decision was handed down. It promptly that, where a preliminary judgment fixing the took possession of the strip pending the amount of compensation to be paid the own-appeal and built and operated its road thereers of property is rendered, it is incumbent on. The defendant did not bring the case upon the corporation to pay that amount with-here, and probably it took the position that in a reasonable time, and thus secure a final it was the duty of the parties who brought it order, or it will be deemed to have abandoned to get it back into the circuit court so that the proceedings; the unreasonable delay being considered conclusive evidence of an intent not to accept the property upon the terms and at the valuation fixed by the court or jury. Bensley v. Mountain Lake Water Co., 13 Cal. 306, 73 Am. Dec. 575; Chicago v. Barbian, 80 Ill. 482. A judgment fixing the value of the land is not in this state an authorization to the party condemning to take possession of the premises. It merely puts such party in a position where by paying into court the ascertained value of the tract sought to be condemned he can thereafter use the property for the purpose for which condemnation is sought. Since this is true, the defendant was not authorized by virtue of its preliminary judgment fixing the amount to be paid to take possession of the land sought to be condemned, without complying with the law requiring the value ascertained by the court to be paid to the clerk for the owners or others whose interests entitle them to compensation. [3] Nor are we of the opinion that the fact that the plaintiffs here promptly appealed from the preliminary judgment assessing damages dispensed with the necessity of the railway corporation's paying over to the clerk the damages assessed. It is true that section 7104, Or. L., provides that such appeal "shall not stay the proceedings so as to prevent such corporation from taking such lands into possession, and using them for the purposes of the corporation," etc. But, before doing so, the compensation must be "first assessed and tendered," as required by subdivision 18 of article 1 of the Oregon Constitution. [4] Whether the failure of plaintiffs to object to the corporation's taking immediate possession and constructing its road upon the strip in controversy amounted, under the circumstances, to a license so to do, is not material in view of the fact that no damages have been shown to have resulted from the act, and further taking into account the fact that plaintiffs received interest upon the amount of the original assessment, to which interest they were not morally or legally entitled, inasmuch as the delay in the final adjudication was caused in great part by their groundless appeal. [5] Returning now to the question of abandonment, it may be said that abandonment is largely a matter of intent, and that they could collect their damages. We do not think that the delay under the circumstances was so unreasonable as to justify us in saying as a matter of law that the defendant here had abandoned the proceedings, especially as the plaintiffs have not shown any injury resulting to them from such delay. The plaintiffs prosecuted a groundless appeal and are responsible for much of the delay. But for that appeal, no doubt they would have had their damages long ago. The judgment is affirmed. BURNETT, HARRIS, and JOHNS, JJ., concur. DAVIS v. PATTERSON. (69 Colo. 226) (No. 9876.) Nov. 8, 1920.) 1. Fraudulent conveyances 137 (4)-Possession by first buyer held insufficient under statute as against subsequent buyer. Under Rev. Stat. 1908, § 2668, making a sale of goods and chattels void against subsequent purchasers in good faith unless accompanied by immediate delivery and followed by actual of a portion of corn in a field who had shucked and continued change of possession, the buyer a portion of the corn but left it all in the field, which was under the control of the seller, did not have title thereto as against a subsequent buyer who took possession, since his possession of the corn was not continuous, visible, or unequivocal. 2. Trover and conversion 40(3)-Defendant entitled to verdict if evidence as to right of possession is evenly balanced. In an action for conversion of personal property, defendant is entitled to a verdict if the evidence is evenly balanced as to the right of possession, so that an instruction that defendant cannot recover unless the preponderance of the evidence is in his favor was erroneous. 3. Fraudulent conveyances 133-Knowledge by buyer of prior sale under which possession is not taken is immaterial. Under Rev. Stat. 1908, § 2668, making void a sale of personal property not followed by change of possession, it is immaterial that a subsequent buyer of the property had knowledge or information to put him on inquiry of |