operation rule in Oregon

1986In Bracke , the Supreme Court acknowledged an employer’s right to use of rule 1 in that manner: “The operation of the rule, as we said in Inkley, [v. Forest Fiber Products Co., 288 Or 337 , 605 P2d 1175 (1980)] provides certainty in a way which is ‘somewhat arbitrary.’ It operates generally for the benefit of the interests of claimants.

1986In Bracke , the Supreme Court acknowledged an employer’s right to use of rule 1 in that manner: “The operation of the rule, as we said in Inkley, [v. Forest Fiber Products Co., 288 Or 337 , 605 P2d 1175 (1980)] provides certainty in a way which is ‘somewhat arbitrary.’ It operates generally for the benefit of the interests of claimants.

1998The operation of the rule is “somewhat arbitrary.” Bracke, 293 Or at 249 .

1997See, e.g., United States v. Newman, 849 F2d 156, 162-63 (5th Cir 1988) (where defense counsel questioned numerous witnesses about out-of-court statements that the defendant had made to them, FRE 806 permits impeachment of nontestifying criminal defendant through introduction of the defendant’s prior criminal convictions); United States v. Bovain, 708 F2d 606, 613-14 (11th Cir), cert den sub nom Brown v. United States, 464 US 898 (1983) (certified record of nontestifying defendant’s prior criminal convictions admissible for impeachment purposes, where another witness has testified previously ab

1997See, e.g., United States v. Newman, 849 F2d 156, 162-63 (5th Cir 1988) (where defense counsel questioned numerous witnesses about out-of-court statements that the defendant had made to them, FRE 806 permits impeachment of nontestifying criminal defendant through introduction of the defendant’s prior criminal convictions); United States v. Bovain, 708 F2d 606, 613-14 (11th Cir), cert den sub nom Brown v. United States, 464 US 898 (1983) (certified record of nontestifying defendant’s prior criminal convictions admissible for impeachment purposes, where another witness has testified previously ab

1995Cf. Fifth Avenue Corp. v. Washington County, 282 Or. 591, 597-98 , 581 P.2d 50 (1978) (amendatory acts do not change the meaning of preexisting language further than is expressly declared or necessarily implied).

1995Cf. Fifth Avenue Corp. v. Washington County, 282 Or. 591, 597-98 , 581 P.2d 50 (1978) (amendatory acts do not change the meaning of preexisting language further than is expressly declared or necessarily implied).

1994Id. at 563-64 , 739 P.2d 554 .

1994Id. at 563-64 , 739 P.2d 554 .

1983Holmes v. State Ind. Acc. Com., 227 Or 562, 574-75 , 362 P2d 371 , 363 P2d 563 (1961).

1983Holmes v. State Ind. Acc. Com., 227 Or 562, 574-75 , 362 P2d 371 , 363 P2d 563 (1961).

1981The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.” More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340 , 283 P2d 994 , 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613 , 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74 , 542 P2d 1010 (1975).

1981The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.” More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340 , 283 P2d 994 , 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613 , 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74 , 542 P2d 1010 (1975).

1981The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.” More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340 , 283 P2d 994 , 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613 , 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74 , 542 P2d 1010 (1975).

1981The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.” More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340 , 283 P2d 994 , 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613 , 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74 , 542 P2d 1010 (1975).

1981The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.” More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340 , 283 P2d 994 , 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613 , 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74 , 542 P2d 1010 (1975).

1981The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.” More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340 , 283 P2d 994 , 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613 , 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74 , 542 P2d 1010 (1975).

1979On the other hand, to "presume” that notice was given simply by virtue of the fact that an order was entered would impose an almost insurmountable burden of proof on the property owner to prove lack of notice, particularly in a case such as this *61 when the county does not act on its order until over 20 years after it is entered. 7 Moreover, even were we to hold the presumption available in this case, one of the conditions precedent to the operation of the presumption is "that the circumstances of the particular case add some element of probability.” Highway Com. v. Heintz Constr., 245 Or 530

1979On the other hand, to "presume” that notice was given simply by virtue of the fact that an order was entered would impose an almost insurmountable burden of proof on the property owner to prove lack of notice, particularly in a case such as this *61 when the county does not act on its order until over 20 years after it is entered. 7 Moreover, even were we to hold the presumption available in this case, one of the conditions precedent to the operation of the presumption is "that the circumstances of the particular case add some element of probability.” Highway Com. v. Heintz Constr., 245 Or 530

1959Co., 67 Or 538, 547 , 136 P 645 ; 38 ALR 566 . “* * * But the operation of this rule against recourse is greatly circumscribed, with the result that one constructively liable for a tort is generally held entitled to indemnity from the actual wrongdoer, regardless of whether liability is imposed on the person seeking indemnity by statute or by rule of the common law, and irrespective of the existence of an express contract to indemnify. * * *” 27 Am Jur 467, Indemnity, See 18.

1959Co., 67 Or 538, 547 , 136 P 645 ; 38 ALR 566 . “* * * But the operation of this rule against recourse is greatly circumscribed, with the result that one constructively liable for a tort is generally held entitled to indemnity from the actual wrongdoer, regardless of whether liability is imposed on the person seeking indemnity by statute or by rule of the common law, and irrespective of the existence of an express contract to indemnify. * * *” 27 Am Jur 467, Indemnity, See 18.

1956The discretion of the court is usually exercised wisely by confining the operation of the rule to disputes already ripened.” State Farm Mutual Automobile Insurance Co. v. Wise, 277 Mich 643 , 270 NW165, reversed a declaratory decree that insurer was not liable under the policy.

1951It is the general rule that where the consideration for a written contract is mentioned therein merely by way of recital and is not a contractual term of the contract, the true consideration may be shown by either party, although it is different from that expressed. .This is a well-recognized exception to the parol evidence rule.” The following is taken from Shivers v. Liberty Building-Loan Assn., 16 Cal. 2d 296 , 106 P. 2d 4 : “As a matter of substantive law, where the parties to an agreement adopt a writing as the final and complete expression of that agreement an integration results; the ac

1951It is the general rule that where the consideration for a written contract is mentioned therein merely by way of recital and is not a contractual term of the contract, the true consideration may be shown by either party, although it is different from that expressed. .This is a well-recognized exception to the parol evidence rule.” The following is taken from Shivers v. Liberty Building-Loan Assn., 16 Cal. 2d 296 , 106 P. 2d 4 : “As a matter of substantive law, where the parties to an agreement adopt a writing as the final and complete expression of that agreement an integration results; the ac

1951This preliminary question is purely one of fact, and for the purposes of determining it all the circumstances of the transaction are relevant and must be considered.” Corbin on Contracts, § 586, after expressing that rule in similar vein, focuses it upon the problem now before us by stating: “When it has been properly established that the terms of an agreement have been fully and correctly embodied in a specific writing, whether this is a deed of conveyance or not, the rule that this makes antecedent negotiations immaterial applies as definitely to what the agreed consideration was as to any o

1951A recent statement of the rule, accompanied with citations, is Edwards, Guardian, v. Hoevet, 185 Or. 284 , 200 P.2d 955 . 6.

1951A recent statement of the rule, accompanied with citations, is Edwards, Guardian, v. Hoevet, 185 Or. 284 , 200 P.2d 955 . 6.

1932In Downs v. Georgia Casualty Co., 271 Fed. 310 , cited by defendant, the statute required a specific permit for each auto bus operated and required a policy to be furnished for each such auto bus.

1915A resulting trust is within the operation of the rule noted: School Dist. v. Peterson, 74 Minn. 122 ( 76 N. W. 1126 , 73 Am.

1915A resulting trust is within the operation of the rule noted: School Dist. v. Peterson, 74 Minn. 122 ( 76 N. W. 1126 , 73 Am.

1903The first instruction or statute is itself a limitation upon the second, for it confines the operation of the presumption there designated to murder of a lesser degree than the first, and it has been so construed by this court: State v. Carver, 22 Or. 602 ( 30 Pac. 315 ); State v. Bartmess, 33 Or. 110 ( 54 Pac. 167 ).

1903The first instruction or statute is itself a limitation upon the second, for it confines the operation of the presumption there designated to murder of a lesser degree than the first, and it has been so construed by this court: State v. Carver, 22 Or. 602 ( 30 Pac. 315 ); State v. Bartmess, 33 Or. 110 ( 54 Pac. 167 ).

1903The first instruction or statute is itself a limitation upon the second, for it confines the operation of the presumption there designated to murder of a lesser degree than the first, and it has been so construed by this court: State v. Carver, 22 Or. 602 ( 30 Pac. 315 ); State v. Bartmess, 33 Or. 110 ( 54 Pac. 167 ).

1903The first instruction or statute is itself a limitation upon the second, for it confines the operation of the presumption there designated to murder of a lesser degree than the first, and it has been so construed by this court: State v. Carver, 22 Or. 602 ( 30 Pac. 315 ); State v. Bartmess, 33 Or. 110 ( 54 Pac. 167 ).

1900He could easily have dispelled that ignorance, for he had the fact of the will of his daughter before his eyes; and, if he may be allowed to plead his voluntary ignorance in destruction of equitable rights growing out of his own acts and assertions, the grossest imposition and the greatest fraud might be practiced with impunity.” So, also, in Favill v. Roberts, 50 N. Y. 222 , the executor of a will, with the knowledge and acquiescence of the heirs, applied to the court for authority to sell and convey real estate, and subsequently sold it to a party who had been assured by the heirs that he ha