case comes within rule in Oregon

2005In reply, defendant argues that the exception in Apprendi for the fact of a prior conviction is dictum and, even if it is not, that the exception does not apply here because the trial court’s finding was based on the nature of defendant’s criminal history — its “extensive[ness]” — not on the bare fact of his prior convictions alone. 2 We have discretion to review an unpreserved error of law that is “apparent on the face of the record.” State v. Brown, 310 Or 347, 355 , 800 P2d 259 (1990).

2005In reply, defendant argues that the exception in Apprendi for the fact of a prior conviction is dictum and, even if it is not, that the exception does not apply here because the trial court’s finding was based on the nature of defendant’s criminal history — its “extensive[ness]” — not on the bare fact of his prior convictions alone. 2 We have discretion to review an unpreserved error of law that is “apparent on the face of the record.” State v. Brown, 310 Or 347, 355 , 800 P2d 259 (1990).

1987Plaintiff argues that this case comes within the rule stated in Snyder v. Pynn, 50 Or App 449, 455 , 623 P2d 1090 (1981) , and the cases cited there, that “[a]ctions amounting to a party’s manifestation of a determination to accept an offer communicated to the party making the offer completes the contract,” although the contract has not been overtly accepted or formally executed.

1987Plaintiff argues that this case comes within the rule stated in Snyder v. Pynn, 50 Or App 449, 455 , 623 P2d 1090 (1981) , and the cases cited there, that “[a]ctions amounting to a party’s manifestation of a determination to accept an offer communicated to the party making the offer completes the contract,” although the contract has not been overtly accepted or formally executed.

1971This case comes within the rule of State v. Van Kleeck, 248 Or 7 , 432 P2d 173 (1967).

1950Such a case comes within the principle of res ipsa loquitur; the facts and circumstances speak for themselves, and, in the absence of explanation or disproof, give rise to the inference of negligence. * * *” After approving the admirable note, however, the court said that the instructions given were as favorable to the defendant as it could ask. • • In Chaperon v. Portland Electric Co., 41 Or. 39 , 67 P. 928 , the plaintiff sued on account of the negligent' maintenance of electric wires.

1950Such a case comes within the principle of res ipsa loquitur; the facts and circumstances speak for themselves, and, in the absence of explanation or disproof, give rise to the inference of negligence. * * *” After approving the admirable note, however, the court said that the instructions given were as favorable to the defendant as it could ask. • • In Chaperon v. Portland Electric Co., 41 Or. 39 , 67 P. 928 , the plaintiff sued on account of the negligent' maintenance of electric wires.

1941The case comes within the rule announced in Stephens v. Tipton, 128 Or. 115, 119 , 268 P. 1014 , where, in deciding a similar question, it is said: “The contract was one which could not be enforced during the life of the father, for under the contract the only performance required by the father was to make a will devising the property in accordance with his undertaking and agreement and there could be no violation of his contract until the very moment of his death.

1941The case comes within the rule announced in Stephens v. Tipton, 128 Or. 115, 119 , 268 P. 1014 , where, in deciding a similar question, it is said: “The contract was one which could not be enforced during the life of the father, for under the contract the only performance required by the father was to make a will devising the property in accordance with his undertaking and agreement and there could be no violation of his contract until the very moment of his death.

1937J. 292, § 195, as follows: “In some jurisdictions, where the licensee has acted under the license in good faith, and has incurred expense in the execution of it, by making valuable improvements or otherwise, it is regarded in equity as an executed contract and substantially an easement, the revocation of which would be a fraud on the licensee, and therefore the licensor is estopped from revoking it, and the rights of the licensee will continue for so long a time as the nature of the license calls for; this rule is particularly applicable where the licensor joins in the enterprise and accepts t

1937J. 292, § 195, as follows: “In some jurisdictions, where the licensee has acted under the license in good faith, and has incurred expense in the execution of it, by making valuable improvements or otherwise, it is regarded in equity as an executed contract and substantially an easement, the revocation of which would be a fraud on the licensee, and therefore the licensor is estopped from revoking it, and the rights of the licensee will continue for so long a time as the nature of the license calls for; this rule is particularly applicable where the licensor joins in the enterprise and accepts t

1931Hence, the case comes within the rule announced in Federal Reserve Bank v. Malloy, 264 U. S. 160 , ( 44 S. Ct. 296 , 68 L.

1931Hence, the case comes within the rule announced in Federal Reserve Bank v. Malloy, 264 U. S. 160 , ( 44 S. Ct. 296 , 68 L.

1931The recital merely refers to a mortgage and the case comes within the rule announced in Page v. Ford, 65 Or. 450 ( 131 P. 1013 , 45 L.

1931The recital merely refers to a mortgage and the case comes within the rule announced in Page v. Ford, 65 Or. 450 ( 131 P. 1013 , 45 L.

1924Hence, the case comes within the rule stated in United States v. Cook, 84 U. S. (17 Wall.) 168 ( 21 L.

1924Hence, the case comes within the rule stated in United States v. Cook, 84 U. S. (17 Wall.) 168 ( 21 L.

1924Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 ( 146 Pac. 828 ); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; w

1924Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 ( 146 Pac. 828 ); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; w

1924Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 ( 146 Pac. 828 ); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; w

1924Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 ( 146 Pac. 828 ); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; w

1924Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 ( 146 Pac. 828 ); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; w

1924Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 ( 146 Pac. 828 ); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; w

1917Conceding that the latter officer personally kept within the letter of the law when he merely urged defendant that he had better tell the truth, yet the case comes within the doctrine announced in State v. Wintzingerode, 9 Or. 153 , set out in the syllabus thus: “Section lfi9 (L.

1914Therefore, this case comes within the rule laid down in Roesch v. Henry, 54 Or. 230 ( 103 Pac. 439 ).

1914Therefore, this case comes within the rule laid down in Roesch v. Henry, 54 Or. 230 ( 103 Pac. 439 ).

1911Plaintiff’s contention is that after obtaining a certificate of sale from the State in 1882 he had been in the actual, exclusive possession of the land, claiming to own the same against all the world except the State of Oregon, until the State Land Board informed him that it could not convey the land, and plaintiff’s counsel argues that the case comes within the rule announced in Boe v. Arnold, 54 Or. 52 (102 Pac. 290).

1911Plaintiff’s contention is that after obtaining a certificate of sale from the State in 1882 he had been in the actual, exclusive possession of the land, claiming to own the same against all the world except the State of Oregon, until the State Land Board informed him that it could not convey the land, and plaintiff’s counsel argues that the case comes within the rule announced in Boe v. Arnold, 54 Or. 52 (102 Pac. 290).

1910It is claimed by defendant that the complaint, in failing to allege that the plaintiff was entitled to the immediate possession of the personal property in question, does not state facts sufficient to constitute a cause of action, and that the case comes within the rule laid down in Kimball v. Redfield, 33 Or. 292 ( 54 Pac. 216 ).

1910It is claimed by defendant that the complaint, in failing to allege that the plaintiff was entitled to the immediate possession of the personal property in question, does not state facts sufficient to constitute a cause of action, and that the case comes within the rule laid down in Kimball v. Redfield, 33 Or. 292 ( 54 Pac. 216 ).

1906The respondents, however, claim that this case comes within the rule declared in Frink v. Thomas, 20 Or. 265 ( 25 Pac. 717 , 12 L.

1906The respondents, however, claim that this case comes within the rule declared in Frink v. Thomas, 20 Or. 265 ( 25 Pac. 717 , 12 L.

1901The crime charged in the indictment clearly included all others mentioned in the instruction complained of, and as the proof of the manner and circumstances of the killing, and defendant’s connection therewith, was entirely circumstantial, the case comes within the rule laid down by this court in State v. Magers, 35 Or. 520 ( 57 Pac. 197 ), and State v. Ellsworth, 30 Or. 145 ( 47 Pac. 199 ).

1901The crime charged in the indictment clearly included all others mentioned in the instruction complained of, and as the proof of the manner and circumstances of the killing, and defendant’s connection therewith, was entirely circumstantial, the case comes within the rule laid down by this court in State v. Magers, 35 Or. 520 ( 57 Pac. 197 ), and State v. Ellsworth, 30 Or. 145 ( 47 Pac. 199 ).

1901The crime charged in the indictment clearly included all others mentioned in the instruction complained of, and as the proof of the manner and circumstances of the killing, and defendant’s connection therewith, was entirely circumstantial, the case comes within the rule laid down by this court in State v. Magers, 35 Or. 520 ( 57 Pac. 197 ), and State v. Ellsworth, 30 Or. 145 ( 47 Pac. 199 ).

1901The crime charged in the indictment clearly included all others mentioned in the instruction complained of, and as the proof of the manner and circumstances of the killing, and defendant’s connection therewith, was entirely circumstantial, the case comes within the rule laid down by this court in State v. Magers, 35 Or. 520 ( 57 Pac. 197 ), and State v. Ellsworth, 30 Or. 145 ( 47 Pac. 199 ).

1885The case comes within the rule laid down in Stukeley v. Butler, Hob. 172, where, showing that a contradictory explanatory clause will not avoid what was sufficiently granted before, it is said:- “ As, if I have in D blackacre, whiteacre, and greenacre, and I grant unto you all my land in D—that is to say, blackacre and whiteacre—yet greenacre will pass too.” And see Bell v. Potts, 5 East, 49; Jackson v. Loomis, 18 Johns. 81 : Worthington v. Hylyer, 4 Mass. 196 ; Raymond v. Coffey, 5 Oreg. 132 .

1885The case comes within the rule laid down in Stukeley v. Butler, Hob. 172, where, showing that a contradictory explanatory clause will not avoid what was sufficiently granted before, it is said:- “ As, if I have in D blackacre, whiteacre, and greenacre, and I grant unto you all my land in D—that is to say, blackacre and whiteacre—yet greenacre will pass too.” And see Bell v. Potts, 5 East, 49; Jackson v. Loomis, 18 Johns. 81 : Worthington v. Hylyer, 4 Mass. 196 ; Raymond v. Coffey, 5 Oreg. 132 .

1885The case comes within the rule laid down in Stukeley v. Butler, Hob. 172, where, showing that a contradictory explanatory clause will not avoid what was sufficiently granted before, it is said:- “ As, if I have in D blackacre, whiteacre, and greenacre, and I grant unto you all my land in D—that is to say, blackacre and whiteacre—yet greenacre will pass too.” And see Bell v. Potts, 5 East, 49; Jackson v. Loomis, 18 Johns. 81 : Worthington v. Hylyer, 4 Mass. 196 ; Raymond v. Coffey, 5 Oreg. 132 .