Image provided by: University of Oregon Libraries; Eugene, OR
About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Sept. 22, 1911)
rifcE 8 La. DAILY CAPITAL JOCRXAL, SALEM, OREGOX, FKIDAV, SEPTEMBER 22. 1911. SUPREME COURT PASSES Oil SEVERAL SMALL CASES OREGON SUPREME Fall Text Published bj Coartesy of Supreme Pointer T. klaimilh Fulls Lund k Transportation Co., Klamath foun- H. E. Pointer, respondent, v. Kla math Falls Land and Transportation Company, appellant. Appeal from the circuit court or Klamath county The Hon. George Noland, Judge- Ar gued and submitted July 27, 1911. Hlchard Shore Smith and (Horace M. Manning on brief) for respondent. J. J. llarrett, and (Thomas Drake and Hennon & Stone on brief) for appel lant. Mclirlde, J. Reversed and new trial ordered. McBrlde, J. The defendnnt had constructed a street railway in Kla math Falls, and plaintiff, while driv ing a wagon heavily loaded with lum ber along one of the atreets, found it necessary to make a turn and In doing so ran against a rail that pro jected above the surface of the street, and he was thrown from his wagon and seriously Injured. Plaintiff claims that the injury resulted from the careless and negligent manner In which the rails were loft projecting above the surface of the street, whereas the ordinance granting the franchise required that the rirlls should bo maintained flush with the pavement. Defendant pleaded, among other dofense, contributory nogllgence on plaintiff's part, and upon the trial laid particular stress upon the fart that plaintiff was standing on the load Instead of flitting, and called several witnesses, who claimed to be experienced drivers, to show that un der the circumstances the usual, cor rect and customary position while driving was to sit on the load. Plain-'vanee tiff called several witnesses and over the objection of defendant, pro pounded substantially the following question: "In handling four horses, would you consider it careless to stand on n load of lumber and drive them In, coming up an Incline and making a turn?" And also this ques tion: "Would you consider It care less, reckless or negligent to stand upon a wagon londed with lumber, iion which there Is no sent, driving four horses up a street with an in cline and making a turn? Moth these questions were answered In the nega tive ami defendant apnea H. We nre Inclined to think tllnt the testimony of. skilled drivers as to the proper and customary position of a driver, under the circumstanced de- tailed, is admlsslbln: but the question I went further than that and practical- ly required the witness to give an, opinion upon the ultimate fact to be ' decided by the Jury, nnmely tho fact ' or puiimiiT a negligence. This wns a usurpation of the functions of the Jury and was reversible error. . J lie issue of negligence can In most cases bo determine by the judg ment, of a Jury nnd the Inference, conclusion, or Judgment of wltnesHes Is rejected. This rule has been np plled, for evninnle, to the question whether a bridge, road, roadwny, rmt-niiiH, i runt or oilier place, ma- "" lucsendulil shall not sublet the chlnery, mechanical appliance, rate premises without the consent or the of speed, situation. or other thing r,wiiex; that he was n stockholder collodion or combination of things Island a managing olllcer of the Drapon safe or dangerous. The rule lias nlso Kc-slniirant Connmnv. nnd that , been npplled to the. question whether certain conduct of a person was care ful or careless. And It has nlso been applied to other questions iih in con duct; as whether It was caul Ions dangerous, 'In the line of duty,' nec essary, negligent, proper, prudent, reasonable, professionally skilful, tuire, usual, or unusual." 17 Cye. tin ft seq and vases there cited. While not following the rule to tho extent Indicated In the text of the excerpt above quoted, and not Indorsing all that Is held In the cases cited In the text, we think It reasonably well set tled that where cither negligence, rrcmPHsncHH or carelessness, consti tute the ultimate fact for the Jury to decide, that It Is not competent for nn expert witness to express an opinion upon thnt ultimate fnct, but he can only go so far as to state the usual customary method of doing an act or state from his experience the dangers. If any, attendant upon doing All patent medicines or medicines ad vertised In this paper re tor sale at DR. STONE'S Drug Store Also Dr. Stone's FOISOX OAK REMEDY A snow white medicine, contains no Sugar of lead, opium, nor other poi sonous drugs. Applied every bour It t once relieves, and soon cures In flammation of the skin generally known as Teisoa Oak. J5c and 60o bottles. I . .. ., COURT DECISIONS F. A. Turner, Exporter of the Oonrt It In a manner suggested by the ques tion put to blm. Outside of this error the case seems to have been properly tried and we deem It unnecessary to dlB- cuss the remaining assignments. The Judgment of the circuit court Is re versed and a new trial ordered. Johnson t. Parshley, ct al, Multoo man County. Ed. Johnson, respondent, v. A. W. Parshley, Ed. Kiesendahl, 0. Leo. O Wo, and the Dragon Restaurant Company, a corporation; Fred Olson, Justice of the Peace, and Lou Wag ner, constable, appellants. Appeal from the circuit court for Multnomah county. The Hon. Win. M. Catena, Judge. Submitted on brief Septem ber fi, 1911. Harry lanchwlch, for appellants. No appearance for re spondent. Eakln, C. J. Affirmed. On the 9th day of January 1909, plaintiff purchased from defendant, Dr. Wo, the Dragon Restaurant, to gether with the lease of the premises 149-irl Seventh street,. Portland In which It was conducted, for the sum of $3,100, and went Into posses sion thereof at that time. Defen dants, E. Kiesendahl and Parshley, acted for Dr. Wo In negotiating the sale. Mrs. Hamilton was the owner of the premises, and on September 6, 1907, leased the same to Kiesendahl for a term ending April 1, 1911. On October 1, 1907, Kiesendahl sub-let the same to the Dragon Restaurant Company for the balance of the term. Dr. Wo claims to be the successor In Interest to the Dragon Restaurant Company. Tly the sub-lease the les- seo was required to deposit in ad $600, equal to three months' rent, to apply as the rental for the last three months of the lease. It was agreed In ndvanco of the sale that, In case Johnson purchased the restaurant and secured a transfer of the lease, then he was to pay and re turn to the present owner of the Dragon Restaurant the $000. Incom pleting the sale of the restaurant to Johnson, he gave six promissory notes of $100 each for the $000. The lease was not assigned to him and wnen sued on the notes, he com menced this suit to enjoin their col lection, and nlso nuked to have the l sine rescinded, and he tendered hack property. Subsequently, hut he- rore tno mi" he "led a supplemen """Piamt, alleging that he had H(,l(l tn" restaurant and asked to have "llt l",rtl,in ' the cause eliminated. n ""' ,rlnl "f th" !lH decree a r,,n,l,'r,'d In favor of plaintiff, n,J,ll'Kn the notes to bo void and nJ,llnl"B their collection. Defendant appeals K'akln, C. J. On the appeal the de fendants present but two questions ii. tn mat py reason of respond- ciii a Nine or tne reMnurnnt, the ap pellants cannot be placed In statu quo. (2) A partial recession of an entire contract cannot be had. It was conceded throni'hnnf ti.o 'rial that the orglnal lease stipulated niiuipaso was consented to by Mrs. Hamilton for that reason, and Kies endahl testilled that he wns author ized by Dr. Wo to sell the restaurant and did participate In' the negotia tions for the sale, and on January 7 19P9. agreed In writing with Johnson' with a view of n sale to him of the restaurant, that he was the owner of the louse of the premises and as Johnson was deslrlous of buying the restaurant and having transferred the lease to Mm, ,0 wouj ni(( , making the purchase, and that "Whereas, six hundred ($000 00) has been advanced by the present owner of the said Dragon Restaurant upon the lenso for the last three (3) months of the said lease; nnd. Now In case tho Bald Johnson shall pur chase the said restaurant, ond have the lease transferred to him, then and In that event he airmen i nml . . .. tt... 1 ' ...... kiiiiii in me present owner of uie xnui Dragon Restaurant the said six Hundred ($b00.00) dollars, upon the terms nnd conditions heretofore agreed upon.' It was for this sum that Johnson gave the six promissory notes men tioned, nnd the whole negotiations were conducted and consummated upon the basis of this preliminary agreement. And It was understood between Johnson, Idleman and de fendant Parshley, acting for Dr. Wo neu uie notes were delivered, that Parshley would see that the Ua9 would be transferred the next dav. The lease was not transferred. Dr. Wo had no Interest therein that was transferable by him and It ws onlv through Kiesendahl and Mrs. Hamil ton that Johnson could acquire a right to the possession of the prem ises. Therefor, the notes were with out consideration and their cancella tion does not depend usin a rescind ing of the contract of sale or that de fendants shall be placed lu statu quo. The decree la aftlruied. LendMter v. Huh ley, Multnomah County, F. V. I.endbctter, appellant, v. W. P. Hawley. respondent Appeal from the circuit court for Multno mah county. Hon. John B. Cleland. Judge, On petition for rehearing. the complainants were In pari delic Cnke & Cake for appellant. Cham-It", they were entitled to relief betlaln, Thomne & Kraemer, Dolph. Military. Simon & Oeaiin and Les ter V. Humphreys for respondent. Uurnett. J- lVnled. As we understand the defendant's petition for a reheariug of this ac tion, he complains that the effect of our decision reversing the Judgment of the circuit court is to allow the plaintiff to allege the' fraud of the de fendant as a cause of action and to recover on proof of the illegality of th transaction narrated in the com plaint and testimony. lie Insists, also, in substance, that Dr. Lyon's PERFECT Tooth Powder cleanses, preserves and beau- ! tifies the teeth and imparts purity and fragrance to the breath. Mothers should teach the little ones its daily use. ConsumptionOttenDevelops From Pneumonia Consumption rwicllly attic-It thou who bare limi l'nouiuunla. Many mifferers from TnIhtciiIokI give a hHtory of bav int liml I'neuiuiinla. The luiiiei thiw weak ened are more easily attacked by the gertiH thut ran. Cuntuuptloti. For all thou with "weak lunija," enpe rhllv thrift? who havp had I'lieiinninln. F.ikinau'a Alterative la the appropriate ri-Milv. CnreH of ConaumptP'n are a'' rjtnplfhel br Eckmon a Alterative. But take It :n time. There la no wisdom In wuitlinc until TulH-reuloidH Is entaldlMbeil. Health la never fully vnlued until Uk nem luuiea. A remarkable recovery fol low: Xv N. -tut St.. Pblla., l'a. (ieiMenien: 1 wlih I had known of Eikuiau'a Alterative two year ago. Hince tnkini It, follo vleit a bail attack " Pneumonia, I have Kalned twenty-lglit poiinda, anil I cannot but be very thank ful to you and the Almighty for the snat Idcasiiiic and i-li in.- of health It U brought me.' ISlKind Affidavit) THOMAS UHILIA. I'.ckinair Alterative Is enVctlvc in Hum chltlK. A.ttim.i, llav Fever; Throat aiel I.uiitf Trouble, ami In upbuil.lii.K the VKtem. line not contain pol.-iiiH, opiate or hublt-foriuliiK drug. Ak for booklet of cured ram ami write to Kckllian Laboratory. Philadelphia. Pa., for more evl deuce. Fo'r mile bv all leading linguists and J. C. Perry, Salem, Oregon. If the plaintiff would recover hjs bonds because of the vice of the agreement by Which he was induced to part with them, he must In so many words confess Its unlawful ness and ask to be relieved from its burdens. As to the fraud, It is alleged as the Inducement which led the plaintiff to make the contract whether legal or not. No one seeks to recover dam ages for fraud but rather for its hurtful effect. It is a mere Incident of the transaction in question. In deed, for the purpose of recovering property with which the plaintiff may have parted under an agreement void as against public policy but which is yet executory, It matters not whether he entered Into the ar rangement by reason of the fraud of the other party or of his own free will nnd accord. Although in pari delicto, ns held in Cone v. Russell Infra, the recanting party may be re stored to ills own If the place of re pentance has not been passed by the complete execution of the Illegal contract- Much more Is he entitled to relief If he has been deceived by the other party and drawn Into an of fense against public policy. Again, it Is not necessary as a mat ter of pleading that the plaintiff should come into a court of law pre facing his complaint with a peccavl and n general confession of his faults In the matter In hand, for those are legal conclusions. i He lias stated all the facts from his standpoint. Including the guile of the defendnnt lending the plaintiff into the situation from which he asks the court to extricate him. On any pleading, the party mnklng it is en titled to the benefit of any legal con clusion which may be properly drawn irom the facts stated. So In ; this ease, ir It can he discerned as a j matter of law thnt th n,,,t i 1 ui.ii uie agreement in pursuance of which the olaintiff 1 parted with his lomls was , contrary 1 to puhlic policy and hence void, he may rely on the further conclusion that he Is entitled to recover the property, provided the unlawful con vention Is still In the executory stage. The legal effect of the complaint Is that the moving party is proceeding In disaffirmance of the iniquitous agreement In question. That it Is yet executory arises from the fact that the delivery of the bonds by the plaintiff Is the only aet of perform ance by either party. None of the things to be done by the defendant has yet been performed. While this condition exists, the plaintiff may re trace his steps and by appropriate litigation recover 'his property for, If the agreement was void as nealnst public policy, It would not operate to puss the title to one who Is a party ui me niegai transaction. in Spring Co. v. Knowiton 103 U. S. 49. the trustees ir a rr.,i devised a scheme to Increase Its cap-1 iiai HtocK wnereoy on payment of 80 per cent of the par value of the new stock, as called for by the trustees, subscribers to the same should re ceive fully paid certificated: hut In default of meeting all the calls, a de linquent should forfeit what he had al ready paid. Knowlte.n. h onrtv t.i' this arrangement, paid port of the 80 per cent anil failed to pav the re mnlnder. The corporation refused to Issue to him the new stock or to re pay the money he had advanced. The court sustained him In wrnvw. io his 1 although "the scheme was void as ' against, public policy and he was a party to It. yet as It was still in part i executory, he wns entitled to hi' monev. 0 In Cone v. Russell 48 X. J. Eq. JOS, tho complainants had executed a proxy. Irrevocable In Its terms, em powering the defendants to vote cer tain shares of stock owned bv com plainants so as to accomplish cer tain results In the management of the corporation issuing the stock, among others, the employment of one of the complainants as manager of the concern at a large saiarv. The vice chancellor held thnt. although against the Illegal agreement, to have uie proxy cancelled and to be re stored to their former situation. To the same effect Is Sheppard v Rockingham Power Co. lf.O N. C. 776. Many other cases might be cited, but the controlling principle tn them all Is that, until an agreement void as against public policy Is fullv execut ed, either party may retreat and bv appropriate proceeding the court ss will restore him as far as possible to his previous estate. The case of Phoenix Rrldge Co. v. Keystone Bridge Co. 142 N. Y. 423, cited by defendant. Is easily distin guishable from the one in band. There several manufacturing con cerns formed an association agreeing to contribute to a common fund to be j used as a guaranty and for other "urpoxes ana providing mat in case of the expulsion of any member, the amount that it had already contrib uted should be forfeited to the asso ciation. The complaint alleged that, without a hearing, the association had found the plaintiff in default and was about to forieit the contribution It had made to the guaranty fund and expel It from the confederation. The prayer was to enjoin the ac complishment of this result. The court held that the agreement, being a combination to enhance prices, was illegal but refused to grant the plain tiff relief in that suit because it pro ceeded in affirmance and support of the void arrangement. in other words, the plaintiff sought to enforce Its supposed rights under the agree ment. The conclusion was that the Judg ment of the court below dismissing the suit "should be affirmed without prejudice to the commencement of an action by plaintiff, if it be so ad vised, to recover back moneys it had paid to the association, on the ground that the agreement forming It was Illegal." The petition for a rehearing is de nied. TO DETERMINE WATER RIGHTS November 16 was the date set yes terday afternoon by the state board of control for a final hearing for the determination of the water rights on Sucker creek and Althouse creeks, in Josephine county, and the date set for the determination of the water rights on the North Powder river. There are about 75 water users in volved on the two first streams and about 100 on the last named. At the same time a final hearing will be had on the contest of Andrew Anderson against the application of scnoumeyer for the appropriation of the water of Bobbs creek Two appeals from the decision of the en gineer in the granting of permits will also come up before the board then for consideration- THE SALEM, FALLS PITY & WEST ERN RAILWAT rOMPAXY Sunday Exrrnsiox rates Commencing Sunday, June 4, 1911 and until and including Sunday, Oc tober 1, 1911, the following Special Round Trip Fares will be In effect, between stations named below, on Sundays only: Between West Salem at.ci Black Rock $1.25 Dallas and Black Rock 75c West Salem and Falls City $1.00 Dallas and Falls City flc West Salem and Dallas 75c Falls City and Dallas 50e Black Rock and Dallas 75c Dallas and West Salem 75c Falls City and West Salem $1.00 Black Rock and West Salem $1.25 Children Children of half fare age, one-half of the adult fare Date of Sale Sundays only. Limit Tickets will be good for continuous passage In each direction, good only on date of sale. Baggage Xo baggage win be checked on these tickets. Issued May 23, 1911. Dallas Ore gon. Effective June 4, 1911. LOUIS GEilLtXGER, JR., General Manager. State of Ohio, City of Toledo Lucas County, ss. Frank J. Chenev makes oath that he Is Senior member nf thn Arm nfl F. J. Cheney & Co., doing business in tt,V ,t7; ? u aforesaid and f that rm f..!8813, n.ai J?1 "r?Lw111 P8? the nnm of uiiwnDt.n nm T.APs tn. X a ..." CI CI t'UHW Ul catarrh that cannot h en rod hv ih use of Hall's Catarrh Cure. FRANK J CHENEY. Sworn to before me and subscribed In my presence, this 6th day of De cember, 1886. A. W. GLEASON, (Seal) Notary Public. Hall's Catarr Cure Is taken inter nally, and acts directly on the blood and mucous surfaces of the system. Send for testimonials ffee. F. J. CHENEY & CO., Toledo, O. Sold by all druggists, 75c. Take Hall's Family Pills for con stipation. 0 THE ONLY WAY. Many Salem Citizens Have DIs. covered It, Just what to do when the kidneys are affected, ts a question that con cerns both young and old. Weak I kidneys neglected In childhood lead It0 I,fe-lo"K suffering. People of ad- vanced years, with less vitality, stif. fer douo'y. In youth or age, languor, backache, urinary irregularity, diz ziness and nervousness make life a burden. There is one remedy that acts di rectly on the kidneys. Doan's Kid ney Pills owe their world-wide fame to tho fact that thev are reliable. rtollow the example of Salem citizens J10 you w111 be convinced that this 10 ou. John Cougar,, 845 North Seven teenth street, Salem, Oregon, says: "Doan's Kidney Pills have been used in my family with great benefit. I al so know of other people who have ia"n xM remedy for kidney trouble w"J!he of ,r,eS.uUf-" , r . 8ile by 8,1 dealers- Prlce B0 "nt. Foster-Mllburn Co., Buffalo, York, sole agents f-r the United States. Remember the aud take no other. nanie Doan's Fly's Cream Hal in has been tried and not found wanting In thousands of homes all over the country, it has won a place In the family medi cine closet among the reliable house hold remedies, where It Is kept at hand for use In treating cold In the head Just as soon as sonv member of the household begins the prelim inary sneezing or snuffling. It gives Immediate relief and a day or two's treatment will put a stop to a cold which might, if not checked, become chronic and run into a bad case of catarrh. o Chamberlain's Colic, Cholera and Diarrhoea remedy Is today the beet known medicine In use for the re lief and cure of bowel complaints. It cure gripping, diarrhoea, dysentery, and should be taken at the first un natural loosentsa of tht bowels. It la equally valuable for children and adults. It always cures. Sold by all dealers. INSTANT RELIEF FOR SORE FEET Sore Feet, Tender Feet and Swollen Feet Cured Every Time. TIZ Makes Sore Feet Well Xo Mat ter What Ails Them. Policemen all over the world use TIZ. Policemen stand on their feet all day and know what sore, tender, sweaty, swollen feet really mean. They use TIZ because TIZ cures their feetrlght up. It keeps feet In perfect condition. Read what this po liceman has to say: "I was surprised and delighted with TIZ for tender feet.. I hardly know how to thank you enough for it.. It's superior to powders and plasters. . I can keep my feet In perfect .condition.. Be lieve in my eaarnest gratitude for TIZ.. I am a policeman and keep on my feet all duy." Emzy Ilarrell, Austin, Texas. You never tried anything like TIZ before for your feet. It Is different from anything ever before sold. T I Z is not a powder. Powders and other foot remedies clog up the pores. TIZ draws out all poisonous exudations which bring on soreness of the feet, and is the only remedy that does. TIZ cleans out every pore and glorifies the feet your feet. You'll never limp again or draw up your face In pain and you'll for get about your corns, bunions and callouses. You'll feel like a new per son. T I Z is for sale at all druggists at 25c per box, or It will be sent you direct If you wish from Walter Luther Dodge & Co., Chicago, I'.!. o A Fierce Night Alarm. Is the hoarse, startling cough of a child, suddenly attacked by croup. Often It aroused Lewis Chamblln, of Manchester, O., (R. R. No. 2- for their four children were greatly sub ject to croup. "Sometimes In se vere attacks,' he wrote, "we were afraid that they would die, but since we proved what a certain remedy Dr. King's New Discovery Is, we have no fear. We rely on it for croup and for coughs, colds or any throat or lung trouble." So do thousands of others. So may you. Asthma, Hay Fever, La Grippe Whooping Cough, Hemorrhages fly before It. 50c and $1.00. Trial bottles free. Sold by J. C. Perry. Sj UNITtom..iC.' CO. 'neTii, P. f So'-J in Siierr. fcy pr, $. C. "'ine LilX'i'fn'iiiiv Xi' .1, 15 .'.-agiiiiiliiiliii.tiLii.' ! Celebrated Lennox Furnace. The Best Heater It will save you money every day you own It. I will sell and Install the best. Let me give you figures. See Me About an individual lighting plant for your home. The best thing In the market for cooking and lighting. A. L. Frasier Phone l.V. gift State Street t Salem Fence Works l Headquarter for Woven Wlr Fencing. Hop Wire, Barb t Wire, Poultry Netting, Shin gle, Malthold Roofing, p. ft. B. and Ready Roofing. Screen Doors and Adjustable Window Screens. All at the lowest prices. CHAS. D. MULLIGAN 1 150 Court street Phone 114 k TO ffi ffl A S?t. Ckht.is for Sn-rm.iBD Mkn-TnUiTitiH. s a km KNCWN TO Mil. r-f-i ."i - th. W Tj iVluu t.unraut.-t-tt "r M.-ne ll-'fiinilt-.l. .s.tn pn'inid Id Jn when rt- Wr...l. Simi-i.-i I reo. If your ilr.waLl due. nol M WW ii F0leVCK5he, re,TatiSrn' k.idney or bladdcr twuble. and m Foley K.dney P.1U are tonic in action, quick in result, E. HOFER Investments, Loans, Real Estate INSURANCE We write Fire, Life, Accident, Liabilty Bonds and All Branches of Insurance 213 S. Commercial Morris Cash Feed and Grocery Store Phone 1497 Choice Bacon, per pound i;c Picnic Hams, per pound jjc Pure Lard, five-pound pall 7ot Pure Lard, 10-pound pail $135 14 pounds Sugar $1.00 Flour, per sack $1.1; 3 cans Tomatoes 2."ic 3 cans Oysters 25c 2 cans nice table Peaches 25c 2 pounds Tillamook Cheese 35c 6 cans American Sardines 25c 5 packages Best Corn Starch 25c 2 cans Yeloban Milk 15c ' 3IAS0X FRriT JARS Pints 55c Quarts title Half-gallons 85c 12 Jelly Glasses 25c FREE DELIVERY Can Your Peaches Nowj 90c, $1.(10, $1.10 per box Our new Vegetable Tray enables us to keep our vegetables fresh and crisp. j Come to us for the best fresh fruits and melons. Have you tried it "Drifted Snow flour" -at CM. 429 Court St. WOOD sPpBE?ciL Until OCTOBER 1st, 1911 We will make a REDUCTION on 10 Load orders. 10 Loads, 16inch Wood $20.00 The Chas. K. Spaulding Logging Company Office front and Perry Phone 1 830 Read The Journal For News j "Economies" Wc in one sense, we could save money by using cheaper oap than the very best by using cheaper starch aud lower priced employees, t But the saving at most would be You can count on the fact that takes It out of your clothes. We aim to do the finest laundering possible, second to none. Our patrons tell us we succeed. You will like our work. Try It Low est prices guaranteed. SALEM STEAM Phone 25. & SONS St Phone 82 MMtMH Roberts & Co. i Phone 256 en Itt MHHIimilHH Can't Afford J only a fraction of the resulting we practice no "economy" that LAUNDRY, 1M-16 SOUTH LIBERTY STREET 4 ' urinary irregularities. . Refuse substitutes. puis Kttf COSS PHARMACY