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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (April 8, 1911)
.1, Second Section VOL. XXI. SALEM, OREGON, 8ATCKDAY, AIMIIL 8, 1U. NO. 84. Pages 1 to 4 f i ii II II fi II ii ii m , f? Vfi-m -p- ?i3Kf -f r ii II ii j 1 1 1 ii ii it ii ii 11 ii n ii ii COffflflS THE SALE OF LAIS srntOE corifT imsse.s o ((Hl'IlSSltOS FILL TEXT1TH IISIIIO It V COritTKSY OK F. A. TIBVKK, HErOKTKH W 81'. MIL mi: contT. Hall v. ONon, Jliillnoiiiali Comity, Josepli ('. Hall respondent, v. N. C. Olson, appellant. Appeal from the circiiit court for Multnomah county. Hon. Jolin B. Cleland, judge. Ar gued and submitted March 21, 1011. I. N. Smith, Peaey & Wlntler and John F. Logan, for aplillant. Thom as O'Day, for respondent. Durnett, J.: Reversed. The plaintiff alleges that on. Au gust 14, 1908, the defendant employed him to effect a sale of 320 acres of timber land in Marlon county at the price of $1S,000, warranting that the land had thereon 40,009,000 feet of merchantable timber and agreeing to pay the plaintiff $1,000 for his ser vices in bringing about the sale, no specific time being fixed for complet ing the transaction; and that within 10 days thereafter plaintiff did nego taite a sale of the property upon condition that the premises contain that amount of timber, to be deter mined by scaling it, and requested the defendant to a.ilow the purchas ers, naming them, to cruise the land for that purpose. The complaint also states that it was "agreed between this plaintiff and defendant that the purchasers thereof should have the privilege of having said timber ex amined and scaled so as to determine the amount of timber thereon." However, there is no testimony to support this agreement 'as a condi- fell .1. T lit 7 - Wk V y-7 .i , !' '. V - ,j y h "X . I 1:.- V.x'VY A - vvrj v ' . .i-'i 1 ii n in .I Tliat "Kverj Little Movement" Cliorn s lu "Madame Sherrj." tlon of the contract between plaintiff and defendant. It Is furthe charged that the purchasers obtained by the plaintiff were ready, able and willing to purchase and pay for the land; that when plaintiff requested defen dant to allow them to scale the tim ber he refused to do so and declined to make the sale; that by the term of, the contract between the parties the commission of $1,000 became due and payable from defendant to plain tiff as soon as the sale was consum mated; and that when the defendant declined to complete the Bale the plaintiff demanded from him payment of said commission, which was re fused. The answer tenders the general issue to every allegation of the com plaint except as to defendant's title to the land and states In effect that the contract was made August 14, 1908, and provided that If the sale was con cluded at $18,000 and the money real ized thereon by the 17th of that month, but not thereafter, the defen dant would pay the plaintiff $1,000 as commission, but that plaintiff did not procure a purchaser within the time or on the terms stipulated. The reply traverses the time limit and the alleged failure to produce a purchaser, as mentioned In the an swer. From a judgment on a verdict of $1,000 for plaintiff the defendant ap peals. Burnett, J.: The defendant assigns as error the court's refusal to give to the jury certain Instructions which he requested. One class of these in structions was based on the idea that the alleged contract between plaintiff and defendant was wanting In mu-, tuality and not supported by any con sideration. It is elementary that where one promises to pay money to 1 another on performance by the other of a particular thing, lawful In Its nature, mutuality of contract exiBts ' because the performance constitutes 1 a consideration for the promise to ' pay. The' other class of defendant's! refused instructions proceeds on the theory, in support of which there is I some testimony, that the defendant withdrew the land from Bale and so notified the plaintiff some days before ' the latter produced a purchaser. ' A real estate broker, where no time limit is prescribed within which he must procure a purchaser, has a reasonable time In which to perform his part of the contract. Stedman v. Richardson, 100 Ky. 79. The ques tion of what would be a reasonable time Is one of mixed law and fact to be left to the jury, under proper In structions from the court as to the law. If the defendant would rely on a withdrawal of the land from sale he must plead It, with notice to the plaintiff before the purchaser was produced. Such a defense Is In the nature of a confession and avoidance. In this case the defendant pleads the agreement which he claims expired by limitation of time without per formance, but does not meet the com plaint by an averment that he re scinded the contract on which the plaintiff relies. ATter the expiration of a reasonable time, where no time is specified within which the purchaser must be produced, the defendant would have a right to withdraw the land from sale and thus rescind the brokerage contract, but no such case is made In the answer. The latter class of instruction requested by the defendant is good as an abstract theory, but without the pleading to sustain them, they were very proper ly refused. Conceding, however, that this ques- tionwas rightly before the court on the pleadings, there is testimony suf ficient to take the oase to the jury on that point. According to- the witness Stewart, the defendant talked to him about the transaction and said: "I think I will turn this down. I ought ' SHERRY TONIGHT FROM NEW YORK TO SAN FRAN CISCO THE STORY IS THE SAME "THE BEST MTTSICAI COMEDY OF A GENERATION." (Continued from Page 4.) No attraction, announced Tor the Grand opera bouse in years has at tracted the attention now being cen tered) in the engagement of "Madame Sherry" tonight. For the pr.Bt few months the air has been filled with reports of the unusual ability of this big musical production, which took New York by storm, and which has just completed Its triumphant march to the coast, leaving a trail of laughing thousands and vast audiences that had been en tranced by the beauty of the produc tion and the tunefulness of its music. From New York to San Francisco the story has been the same the best musical comedy of the genera- tlon. Only four cities along the coast, from Los Angeles to Portland, are given the opportunity to 'see this big production this season, and each will doubtless turn out en masse to witness this tremendous success. "Madame Sherry" comes here with, that wonderful cast which Includes Oscar Flgman, Ann Tasker, Mary Quive, Lottie Kendall, Chertdah Simpson, Harry Bonham, William, Cameron, Harold Rehll, Edward El kas, and a score of other musical comedy celebrities, as well as the Broadway chorus and special orchestra? A professor is one who never doev but shows you how. -Li ON 0 1R -A N G E S H FRF Another Big SUN! asrvsai s, Begi AH Next Week The biggest lot of oranges that ever came to this city has just arrived-THREE MILLION of them. They arrived bvsDecial Fast Freight direct from the bie "Sun- kist" fruit erc-ves of California. They are the "Sunkist' brand, famed for their delicious flavor and health-giving properties. Each local fruit dealer is laying in a liberal supply of "Sunkists" and on next Monday morning all dealers will put on a Special "Sunkist" Orange Sale, lasting throughout the week. California's Finest Oranges " Sunkists" are California's most luscious oranges the choicest of each of 5,000 California Orange Farm ers. They pack, all their perfect oranges under the one name, "Sunkist," and ship them by special fast freight the day they are picked. The "Sunkist" is a tree-ripened orange, s never pithy every solid and sound, a eloved hand. No .it . j l orange that tans to tne grouna or De- comes bruised or aamagea t . i anyway, ever Dears me . ne...i,i,ti J U II Ml l name. e Lasting ns Monday, Apr.10 How to Serve Them Oranges are the most appetizing and nourishing food you can serve at breakfast in the sick-room between meals in salads, ices, sherbets and puddings. There is no limit to the number of excellent dishes of which "Sunkist" oranges form the basis. Buy a fcoxof "Sunkist" oranges and your fruit dealer will make you a special price. You will find no trouble in keeping them as long as you want to, because "Sunkists" reach you in excellent condition. Physicians Advise Them Leading physicians say that to counteract the effect of meat and other heavy foods we eat, one should eat oranges liberally. It is a universally known fact that orange juice is an excellent food for the brain cells and a tonic for run down nerves. No better laxative than sound, ripe "Sunkist" oranges can be found. Cost No More Than Common Oranges "Sunkist" oranges are cheapest to buy because they are thin skinned, fibreless and seedless. They are nearly all food and no waste. You lose money if you buy pithy, seedy, thick-skinned oranges. Free Premiums for "Sunkist" Wrappers The "Sunkist" orange always comes in a "Sunkist" tissue paper wrapper that protects the oranges and retains all their tree ripened flavor. This name on the wrapper means you are buying, at a rea sonable price, the finest orange of all. "Sunkist" wrappers should be kept and sent to us to secure, free, a set of genuine Rogers Orange Spoons, Dessert Spoons and Fruit Knives. The patterns are new 1911 styles, designed exclusively for us. They are as attractive and stylish as money can buy. All are Rogers quality, standard A-No. 1 plate and are fullyguaranteed by the makers, Wm. Rogers & Sons. No advertising appears on any of our premiums. Read on the right the description of these valuable premiums and how to get them. "Sunkist" Lemons The better grade of lemons are now packed in "Sun kist" wrappers. By calling for "Sunkist" lemons, you avoid the kind that are thick-skinned, pithy and insipid. "Sunkist" lemons contain 50 per cent more juice than any other lemon9. "Sunkist lemon wrappers are ac cepted by cur premium department. The California Fruit Growers' Exchange 34 Clark Street, CHICAGO, ILL m For Saio by Ail Dealers TP See the Beautiful Rogers LiiLo Silver rKLL With 3 KM m-W wm I I 1 L "SUNKIST' Wrappers Rofert Oraaf Spoon Free - The picture shows our new 1911 design, "Sunkist" Or. ange Spoon, ac tual size; being a genuine Rog ers product and of the latest style. This spoon will be sent you, charg es, packing, etc., prepaid, on receipt of U " sunkist" wrappers and lie. roreacn additional spoon send 12 ,fSunkist" wrappers and u cents. Notice! ValaabU Dessert Spoon Free Th picture hows our new 1911 design, Dessert Spoon, actual size. It is of the samo excellent quality and beautiful de sign as the orange spoon, but being larger and heavier Is more valuable. Sect to you on re ceipt of 24 "Sun kist" wrappers end 20c additional. For each addition al dessert spoon send 24 "Suukist" (wrappers and 20 ceou. Tab Fruit Knife Free . Our 1911 "SunklsfFrult Kaife is shown here, actual size. It is made of special tem pered steel heav-ilysilver-plated. Fully guaran teed by manu facturers, Wm. Rogen & Son. Sent to you on receipt of 24 "Sunkist" wrappers and 20c. For each additional knife send 24 "Sun kist" wrappers and 20 ccuU. On all re- mittancesup 1 to 24c please send one-cent stamps, on amounts above 24c, send post office money order, express money order or banlc uratt. Do not tend cash. Make your money order or draft payable to Tho California Fruit Crowers' Fichange, nnd addrcsn your let ters to The California Fruit Crowurs' Ex change, 34 Clark Street, Chfcago, 111. You can secure these premiums with "Sun kist" oranpe wrappers, "Sunklr.t" lemon (wrappers, "Red Ball" orange wrappers, or "Red Ball" lemon wrappers. If you will make It a point to buy only "Sunkist" anq ' 'Red Ball" oranges and lemons, you will not onlv pet the finest fruits that rxow. eco nomically priced, but you will soon have enough wrappers to secure a complete set of the beautiful spoons and knives here shown.