delivered the opinion of the court.

This case arises out of the same conditions and is similar in all respects to the case of Wesley F. Porter et al. v. George H. Small, 62 Or. 574 (120 Pac. 393), just decided, and the reasoning in that case applies equally to this.

On the authority of that decision, the judgment in this casé is affirmed. (See 62 Or. 574.)

Affirmed : Modified on Rehearing.