detailed in the testimony which in a remote degree, tend in the same direction, but if there was any testimony tending to establish a criminal conspiracy, its weight was a question for the jury. Where three men are together discussing a common grievance and one is heard to say to the other two, "If this grievance is not redressed I will shoot the offender," and thereafter the one making the threat accompanied by his two companions seeks the offending party, shoots at him, and all three run away together from the scene of the crime, the average unprejudiced man would say that these facts indicated that somewhere along the line there had been a criminal conspiracy between the three to commit the offense. Substantially, that is the case here if the state's witnesses are to be believed, and the jury evidently believed them. The circumstances of this case differentiate it from the case of State v. Quen, 48 Or. 347, 86 Pac. 791. In that case the threat was made by the defendant in the presence of other persons who, so far as the testimony indicated, were mere passive spectators, taking no part in the conversation; while here all the parties present were discussing the grievance on two occasions, and on both the same threat was made by one of them, and all three were subsequently identified at the scene of the crime. [5, 6] There is practically no objection to the instructions considered as abstract statements of the law, but it is urged that, there being no evidence of a conspiracy between the defendants, they were erroneous because not applicable to the evidence. As already shown, there was sufficient evidence of conspiracy to justify submission of the case to the jury, and so far as the objections are based upon the ground of inapplicability to the facts they must fail. [7] It is also objected that instruction No. 7 assumes the existence of a conspiracy, and therefore trenches upon the province of the jury, but we find nothing to justify this criticism. The instructions taken as a whole are eminently clear and free from even technical error, fairly presenting every phase of the case. The judgment is affirmed. new decree entered, the latter supersedes the former as the final decree, and is the only one from which an appeal will lie, and the appeal from the former must be dismissed. 3. APPEAL AND ERROR 790(3)-DISMISSAL OF APPEAL-WANT OF SUFFICIENCY. Since no more can be done on appeal than to vacate the decree appealed from and render another, where such has been done by the trial court, pending the appeal, from which action no appeal has been taken, there is want of actual controversy, only an academic question remaining, and the appeal must be dismissed. In Banc. Appeal from Circuit Court, Morrow County; Gilbert W. Phelps, Judge. Suit by the Oregon-Washington Railroad & Navigation Company against School District No. 25 of Morrow County and others. Decree for plaintiff, and defendants appeal. Appeal dismissed. This is a suit by the plaintiff against the school district, its directors and clerk, to prevent them from entering into a contract for or building a schoolhouse in the district. Plaintiff's claim in substance is that there are but about 200 inhabitants in the district, which is approximately 12 miles long and 11 miles wide; that the average daily attendance at the school for the last preceding year was only a fraction over 15 pupils; and that the building proposed to be erected was extravagant in the extreme, considering the needs of the district. The cause was put at issue, and on September 4, 1917, the court entered a decree said therein to be in pursuance of the consent of both parties, which, after some details respecting the extent to which the proposed plans and specifications should be followed, enjoined the district from incurring any greater expense than $9,000 for the proposed building. On October 24, 1917, the defendants filed a motion to vacate the findings of fact and conclusions of law and the resultant decree already mentioned, and supported their application by affidavits of the directors and counsel for defendants to the effect that they had not agreed to any such result. On October 30th the defendants served their notice of appeal from the decree of September 4th. The abstract contains an exemplification of an undertaking on appeal on behalf of the defendants, but does not disclose when that obligation was filed. We may assume, however, for the purposes of this decision, that OREGON-WASHINGTON R. & NAV. CO. v. the appeal was perfected within five days after the service of the notice of appeal. Meanwhile, the motion to set aside the decree remained undecided, until November 10, 1917, within the term at which the first decree was rendered, when the court, after reciting some matters tending to show that a decree by consent had been authorized, entered another decree vacating the one of September 4th, and entered another making (Supreme Court of Oregon. May 28, 1918.) 1. APPEAL AND ERROR 439 EFFECT OF APPEAL-VACATING DECREE. The trial court does not lose its jurisdiction to vacate a decree and render a new one because an appeal from the decree has been perfected, prior to the hearing on the appeal. 2. APPEAL AND ERROR 82(2) DISMISSAL -VACATING DECREE APPEALED FROM. Where a decree pending appeal therefrom, more concise directions about the extent of but before hearing on appeal, is vacated, and a the proposed building and limiting the cost thereof to the sum of $9,000. Based upon this record, the plaintiff moves to dismiss the appeal. Oren R. Richards, of Portland (Richards & Richards, of Portland, on the brief), for appellants. John F. Reilly, of Portland (Blaine Hallock, of Portland, S. E. Van Vactor, of Heppner, and A. C. Spencer, of Portland, on the brief), for respondent. BURNETT, J. (after stating the facts as above). [1, 2] The only notice of appeal in the record is from the decree of September 4, 1917. The defendants contend that, having perfected their appeal from that adjudication, the circuit court was ousted of any authority to set it aside, and hence that its decree of November 10, 1917, was a nullity and cannot be regarded for the purposes of the present motion. In Brewster v. Springer, 79 Or. 88, 154 Pac. 418, in an opinion by Mr. Chief Justice Moore, this court held that: "Notwithstanding an appeal from a judgment may have been taken and perfected, jurisdiction of the cause is retained by the trial court sufficient to empower it, at any time before the appeal is heard and determined, to amend the bill of exceptions so as to make it conform with the facts." Reasoning by analogy to the rules enunciated in the precedents there cited, it was held that a trial court within the time limited therefor may set aside its own judgment and render a new one, and that it is not only within its power so to do, notwithstanding an appeal may have been taken and not heard, but it is its duty to do so, in order to save the expense of an appeal. That is what has been done in the present instance. Responding to the attack of the defendants upon the first decree, the court set the same aside and rendered another. The one appealed from is no longer in existence; hence there is nothing before us for decision. The decree of November 10, 1917, supersedes the former determination, and is the final adjudication of the matters in dispute. It constitutes the only decision from which an appeal will lie, and the court will not do the vain thing of affirming or reversing that which does not exist. [3] The revision of the decree appealed from has been accomplished by the authorized action of the trial court. We could not do more on the defendants' appeal than to replace with another the decree of which they complained. That has been accomplished by the trial court in regular procedure. For aught that appears, the later decision of the circuit court may be satisfactory to the defendants. At least we may presume so in the absence of any appeal from it. At best the appeal before us presents only an academic question which we are not called upon to decide. Moores v. Moores, 36 Or. 261, 59 Pac. 327; State ex rel. v. Grand Jury, 37 Or. 542, 62 Pac. 208; State ex rel. v. Webster, 58 Or. 376, 114 Pac. 932; Francis v. Schuman, 74 Or. 454, 145 Pac. 668; Dimick v. Latourette, 72 Or. 231, 143 Pac. 896; Stires v. Sherwood, 75 Or. 108, 145 Pac. 645; Ireland v. Sherman County, 75 Or. 241, 146 Pac. 969. The motion to dismiss the appeal must be allowed. WOODARD v. WILLAMETTE VALLEY IRRIGATED LAND CO. (Supreme Court of Oregon. May 28, 1918.) 1. VENDOR AND PURCHASER 86 RESCISSION OF CONTRACT BY AGREEMENT-ABANDONMENT OF RIGHTS. Where purchaser rescinds contract and value of improvements made, vendor by intersues vendor for money paid thereon and for posing counterclaim for rent, thus recognizing purchaser as tenant assents to such rescission, and terminates contract, regardless of whether purchaser had good ground for rescission. 2. VENDOR AND PURCHASER 334(3) RESCISSION-RECOVERY OF PURCHASE PRICE. Where a contract for sale of land has been rescinded by mutual assent, the purchaser, where there is no agreement to the contrary, may recover the amount paid on the purchase price. 3. VENDOR AND PURCHASER 110 ABANDONMENT OF CONTRACT BY VENDOR-RIGHTS OF PURCHASER. fails to supply the water called for by the conWhere an irrigation company selling land tract of sale, the purchaser may elect to rescind the contract and recover what he has paid thereon. 4. VENDOR AND PURCHASER SION-REVIVAL. 87 — RESCIS Where purchaser rescinding contract sues for money paid thereon, the vendor, by acquiescing in such rescission by interposing a counminates the contract, and cannot by waiving terclaim and treating purchaser as tenant, tersuch counterclaim revive it. 5. APPEAL AND ERROR 1050(1)—REVIEWHARMLESS ERROR. rescinded by mutual assent, the admission of parol evidence tending to vary the terms thereof, if error, was harmless. Where evidence showed a contract had been Department 2. Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge. Action by J. G. Woodard against the Willamette Valley Irrigated Land Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed. This is an action for money had and received. The cause was tried to the court and jury, and a judgment followed in favor of plaintiff. Defendant appeals. The action is founded upon the rescission of a written contract entered into between plaintiff, Woodard, and the defendant, Willamette Valley Irrigated Land Company, on August 27, 1913, for the sale by the latter to the former of 17.06 acres of described land in Marion county, with a water right for the price of $4,265, $1,000 of which was paid at the time of the contract, the balance being payable in deferred payments with interest at 6 per cent. per annum. By the terms of, terclaimed $170 for the use by plaintiff of the this agreement the defendant agreed to furnish a certain amount of water necessary to irrigate the land during the irrigation season of each year between May 1st and October 1st of each year, beginning with 1914. All the details as to the time of payments, as to a conveyance of the land upon the payments being made, the manner of furnishing the water, and other stipulations are set forth in the contract. It was covenanted that the buyer should pay the seller on the 1st day of April of each year, subsequent to January, 1915, $1.50 per acre as maintenance fee for the use of water and pay all taxes levied against the property. The instrument contained a time essence clause and the following provisions: "That in the event of default being made by said buyer in the payment of any of the sums of money at the times when the same shall become due as aforesaid, or if default be made in any other particular in any of the stipulations on the part of the said buyer herein contained, then, at the option of said seller, its successors or assigns, and after notification by it to that effect, this contract shall become void, and of no effect, and the buyer shall thereupon cease to be entitled to any benefits thereunder, and all payments of money made hereon by the buyer shall be forfeited as liquidated damages for the failure of said buyer to comply with the terms of this contract, and said buyer shall, on demand of said seller, promptly quit and deliver up said premises to the seller." contracted premises from August 27, 1914, to September 1, 1915, whereupon plaintiff filed a supplemental complaint with the additional averment to the purport that without otherwise attempting to terminate the written agreement defendant had disregarded the same by taking possession of the land and had assented to the rescission of the contract by attempting to recover of plaintiff $170 rent while he was in possession of the premises under the terms of the sale contract. Defendant answered the supplemental complaint, as before, and again counterclaimed for the rent. The reply controverted the answer and counterclaim, except as set forth in the complaint and save as to his occupancy of the premises. Other matters in the respective pleadings will be referred to hereafter. Maurice W. Seitz, of Portland, and Thomas Brown, of Salem (Carson & Brown, of Salem, on the brief), for appellant. S. M. Endicott and W. C. Winslow, both of Salem, for respondent. are: BEAN, J. (after stating the facts as above). The principal assignments of error That the court erred in submitting to the jury the counterclaim of defendant; that after plaintiff rescinded the contract defendant acquiesced in such rescission and thereby rendered the same mutual; and that the cir The written agreement found in the rec-cuit court erred in giving the following inord appears to be plain, full and complete. About August 10, 1915, plaintiff gave defendant notice of rescission of the contract for the reason that the company had failed, inter alia, to supply water for irrigation on May 1, 1914, and he claims such failure continued until July 9th of that year. He demanded a return of the $1,000 paid on the contract and $650 for improvements made by him upon the land, tendered defendant possession and a quitclaim deed of the premises and offered to account to the company for the rents and profits during his occupancy when it should comply with the demand. Upon defendant's refusal so to comply, plaintiff instituted this suit, alleging, in substance, the facts above stated, and that defendant waived plaintiff's payment of April • 1, 1915, for water for the said year and extended the time for the payment of interest due as per contract from August 27, 1914, until August 27, 1915, and that plaintiff had fully performed his agreement. Defendant answered and counterclaimed, denying all the allegations of the complaint "except as hereinafter stated," set forth the contract in full, and averred, in effect, that plaintiff failed to perform his contract in not paying interest due defendant August 27, 1914, and a maintenance fee of $25 for water due April 1, 1915, and that defendant on its part fully performed the contract as mod structions to the jury: "If you find from the evidence that plaintiff's rescission of contract was acquiesced in, provided rescission has been proven, by any conthat plaintiff is entitled to recover the amount duct or acts of defendant, then I instruct you he has put into said property, as the evidence presents that view, if at all, to you." Also: "I further instruct you that defendant cannot recover rent from plaintiff for the time other theory than that said contract was terthat plaintiff occupied said premises upon any minated. * * Upon the trial defendant's counsel stated that defendant waived its counterclaim, and, as stated in their brief, "maintained that the counterclaim was in the nature of an offset to be set off against the value of the improvements," and defendant introduced evidence as to the reasonable value of plaintiff's occupancy of the land. The plaintiff introduced in evidence defendant's original answer, counterclaiming for rents and profits amounting to $170 for the purpose of showing that defendant assented to the rescission. It should be stated that the sale contract made no provision for the payment of rent by the buyer under any circumstances. [1] As we view this case, the question of mutual rescission of the contract to purchase is the determinative one. It will be observed that in its two separate answers the defendant by appropriate allegations demanded a by Mr. Justice Moore in Graham v. Merchant, 43 Or. 294, 304, 72 Pac. 1088, 1090: "When a vendor abandons his contract to convey, the vendee, in his choice of remedies, may elect to rescind the contract, and thereupon maintain an action at law to recover what he has paid thereon, as money had and received. Lyon v. Annable, 4 Conn. 350: McKinnon V. Vollmar, 75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178; Glock v. Howard & W. Colony Co., 123 Cal. 1, 55 Pac. 713, 43 L. R. A. 199, 69 Am. St. Rep. 17." as the reasonable value of the use of the, the vendor company abandoned its contract premises during the time they were occupied is settled by the opinion of this court written by him under the terms of the sale contract. Such a recovery could not be had under any other theory than that the contract had been terminated. There is no claim made on be half of defendant that it attempted to abrogate the agreement in accordance with the terms thereof or in any other manner; hence it necessarily follows that the defendant by treating the contract as at an end and demanding rent for the property, thus recognizing the purchaser as a tenant, assented to the rescission asserted by plaintiff. This would be so although the plaintiff might be wrong in his contention to rescind the con tract. [2] Mr. Parsons in his work on Contracts, vol. 2, § 678, states the rule thus: "If either party without right claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent." See, also, 13 C. J. § 624, p. 601; McKenna v. McKenna, 118 Ill. App. 240; Ralya v. Atkins & Co., 157 Ind. 331, 61 N. E. 726; Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 South. 144; Kingman Colony v. Payne, 78 Or. 238, 152 Pac. 891. Each party having consented to a rescission of the contract (Hobbs v. Col. Falls Brick Co., 157 Mass. 109, 31 N. E. 756), neither can base a claim on such contract except in so far as is necessary to the restoration of the status quo. As a general rule, when the contract for the sale of land has been rescinded by the mutual assent and agreement of the parties, the contract is at an end, and, there being no agreement to the contrary, the vendee, not being at fault, may recover back the money paid on his contracts: 2 Black on Rescission, § 535; 2 Warvelle on Vendors, § 826; 13 C. J. § 627, P. 602; 39 Cyc. 2029; Vider v. Ferguson, 88 Ill. App. 136, 150; Bannister v. Read, 1 Gilman (6 Ill.) 100; Bryson v. Crawford, 68 Ill. 362; Prentice v. Erskine, 164 Cal. 446, 129 Pac. 585; Cummings v. Rogers, 36 Minn. 317, 30 N. W. 892; Maffet v. Ore. & Cal. R. Co., 46 Or. 443, 457, 80 Pac. 489, 494. At page 457 of the opinion in the last-named case (SO Pac. 494) Mr. Chief Justice Wolverton quotes the following from Glock v. Howard & W. Colony Co., 123 Cal. 1, 10, 55 Pac. 713, 719 (13 L. R. A. 199, 69 Am. St. Rep. 17): ""There have been many cases before this court involving the rights of parties to agree ments for the sale and purchase of real estate, in which it has been held that, after the parties have rescinded the agreement or mutually agreed to abandon, the vendee may recover the money which he paid in part performance of his contract'"-citing cases. The general rule in regard to restoration of the status quo is stated to the same effect in 6 R. C. L. p. 936, § 316. [3] The principle involved as to the right of Woodard, the vendee, to recover the money paid upon his contract to purchase when In Mitchell v. Hughes, 80 Or. 584, 585, 157 Pac. 965, 969, Mr. Justice McBride not only cites with approval the case of Graham v. Merchant, supra, but approves the following text from 39 Cyc. p. 1354: "Where one of the parties has abandoned the contract, the other thereupon has a choice of remedies. He may stand upon his contract, refusing assent to his adversary's attempt to rescind it, and sue for a breach, or, in a proper case, for a specific performance, or he may acquiesce in the abandonment and treat the contract as rescinded, and thus effect a dissolution of the contract by mutual and concurring assent of both parties. He cannot, however, party and at the same time enforce its oblitreat the contract as abandoned by the other gation." [4] Rescission by the parties of a contract to convey contemplates not only destruction of the contract, but also restoration of the parties to their former estate or situation. Miles v. Hemenway, 59 Or. 318, 338, 111 Pac. 696, 117 Pac. 273. The waiver of the counterclaim and the attempt to convert the same into a recoupment by defendant was ineffectual as a revival of the contract of sale, as, after a contract has been rescinded, it can be revived only by the mutual assent of the contracting parties. It matters not what we denominate defendant's demand for rent. The defendant in this case could not alone apply the pulmotor so as to restore the life of the contract. 13 C. J. § 627, p. 603; 6 R. C. L. § 315, p. 932; Dixon-Hanson Co. v. Svoboda, 161 Ill. App. 410. The charge to the jury upon this phase of the case was well within the law. The prac tical effect of the instructions quoted and complained of was to require the jury, if they found in favor of plaintiff as to the oth er facts of the case which were fairly proved, to find for plaintiff upon this point; that is, that the contract had been rescinded by mutual assent. There was no error in this part of the charge. As we suggested, this question being the turning point in the case, it renders it of but little avail to consider any of the other questions argued. It was fairly shown, and the jury found that the plaintiff had complied with the terms of the contract on his part, and that the defendant failed to furnish plaintiff with water for irrigation during the season of 1914 according to its agreement, and that his crops suffered for want thereof. There is no question raised affecting the finding of the jury as to the val -PLEADING-TENDER. ue of the improvements made by plaintiff on 16. EMINENT DOMAIN [5] Assuming, without deciding, that the admission of such evidence for the purpose of showing a further breach of the contract by defendant was error as varying the terms of the written contract, yet, as the defendant assented to the rescission of the agreement, we cannot see how such evidence could possibly change the result of the deliberations of the jury. It would serve no good purpose if error should be declared to remand this cause for a retrial of an issue which would not affect the decision of the case. The evidence is all contained in the record. Applying section 3, art. 7, of the Constitution, after a consideration of all the matters contained in the record, we are of the opinion that the judgment appealed from was correct. We find no reversible error in the case, and the judgment of the lower court is there fore affirmed. MCBRIDE, C. J., and MOORE and BENSON, JJ., concur. 191(5)--PROCEEDINGS In eminent domain proceedings a complaint, alleging that plaintiff offered to pay defendant $25,000 for the land; that the offer was refused; that plaintiff is ready, willing, and able to pay such sum for the land-is sufficient allegation of tender and refusal. 7. EMINENT DOMAIN 265(1)-COSTS-TENDER-STATUTES. L. O. L. § 574, applying to actions generally and providing for costs to defendant in case of tender, before suit, of amount greater than judgment, does not apply to eminent domain proceedings; this being a special proceeding governed by section 6868, which is exclusively applicable to eminent domain proceedings. In Banc. Appeal from Circuit Court, Baker County; Gustav Anderson, Judge. Action by the Warm Springs Irrigation District against the Pacific Live Stock Company. From a ruling of the court denying defendant judgment for attorney's fees, defendant appeals. Affirmed. Plaintiff commenced this proceeding in eminent domain against defendant, and alleged, among other things, that plaintiff tendered to defendant the sum of $25,000, for the lands desired to be taken for a dam and reservoir site and right of way and operation of an irrigation system, which defendant refused to accept. Defendant answered, and set up that it had employed counsel to defend the action, and asked judgment for the value of their services. Plaintiff moved the court to dismiss the proceed WARM SPRINGS IRR. DIST. v. PACIFIC ings, without prejudice. Defendant request LIVE STOCK CO. (Supreme Court of Oregon. May 28, 1918.) 1. EMINENT DOMAIN 246(2) RIGHT TO ABANDON CONDEMNATION PROCEEDINGS. An irrigation district, bringing proceedings to condemn private land for a dam and reservoir site, may abandon such proceedings any time prior to actually depositing money to be paid. 265(5)-PROCEEDINGS 2. EMINENT DOMAIN L. O. L. § 6868, as amended by Gen. Laws 1913, p. 81, providing for payment of attorney's fees to defendant in eminent domain proceedings "to be fixed by the court at the 'trial," " has reference to main trial of the cause, and to entitle defendant to no attorney's fees upon voluntary nonsuit. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Trial.] 3. EMINENT DOMAIN 265(1)-PROCEEDINGS -COSTS-COMMON LAW. A party to eminent domain proceedings, having no right to recover costs at common law, is entitled thereto only as provided by statute. 4. STATUTES 205-CONSTRUCTION-INTEN TION OF LEGISLATURE. A statute should be construed according to the intention of Legislature enacting it, which can only be discerned by considering the statute and section as a whole. 5. COSTS 48-VOLUNTARY NONSUIT. Where the statute does not specify what costs shall be paid upon voluntary nonsuit, the usual costs provided by statute will be taxed. ed the court to impose as a condition to the Edward F. Treadwell, of San Francisco, BEAN, J. The question to be reviewed upon this appeal depends upon the construction to be given to section 6868, as amended by the General Laws of Oregon, 1913, p. 81, which is as follows: "The costs and disbursements of the defendant, including a reasonable attorney's fee to be fixed by the court at the trial, shall be taxed by the clerk and recovered from the corporation, but if it appear that such corporation tendered the defendant before commencing the action an amount equal to or greater than that assessed by the jury, in such case the corporation shall recover its costs and disbursements from the defendant, but the defendant |