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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Oct. 27, 1911)
- AJXT CAPITAL JOCR3AX. SALEM. OREGON. FRIDAY, OCTOBER 27, 10H. rAGX FOTB OREGON SUPREME Fill Text Published bj Coirtety of Supreme Elgin t. Snjder and Snyder, County Decided, October 17. 1911. .Murlon Charles F. Elgin, appellant, S. H. , offered 30 shares, and Mr. "Elgin of Enyder and Laura Snyder, rescind-, fered to exchange for 35 shares, snts. Appeal from the circuit court He made no false representation and for Marlon county. The Hon. Win. j authorized none to be made. The Galloway, Judge. Argued and sub-1 farm was worth, or represented to-be mltted, September 26, 1911. M. E. worth. In the neighborhood of $1800. Pogue, (W. M. Kaiser, on briefj for After trading with plaintiff, he lived appellant. John H. McNary, (Charles ; here until the next August, but knew L. McNary, on brb'f) for respondents, Bean, J. Affirmed. This Is a suit to rescind a con tract, whereby plaintiff conveyed to defendant, S. H. Snyder, 46 acres of land valued at $2,ooo, in considera tion of 35 shares of stock In the Sa lem Box and Lumber company, a cor poration, of the par value of $100 per flhare, on the ground of fraud. From a decree In favor of defendants, plaintiff appeals. Plaintiff alleges, as the gist of his complaint, that said defendant, his agents, servants and associates, who 'tween 60 and 70 cents. Plaintiff aa were the officers and stockholders of j sumed the management of the the corporation for the numoses of company, and never made his dls- i'ik'huuk, wronging anu aeirauuing plaintiff, knowingly and falsely rep resented to the public, and to plain tiff, that said stock was of the value of 75 to 80 cents on the dollar, know ing that said shares were of no value whatever, and that the corporation was then Insolvent, all of which Is Bet out at length and with minute de tail. For this purpose property of the value of about $3,600 was turned over to the company by Mason & Sny der, two of the Incorporators, for $11,000 In stock. That on October 19, 190", plaintiff, having no knowledge or means of knowledge of the falsity of such rep resentations, believing them to be true and relying thereon, made the trade, caused the l'nnd to be conveyed tr Snyder, and received the certifi cates of stock. "The suid plaintiff did not discover the nature and ex tent of such fraud, and the evidence by which the same could be proven until long after March 16, 1908, when the petition had been filed in the United States court for the purpose of throwing said corporation Into bankruptcy." Defendants, S. H. Snyder and wife, admit thnt the contract and ex change were made, but deny the al leged fraud and false representations to plaintiff, concerning the stock, and aver that plaintiff knew the exact value of the stock at the time, and that It was of equal value to the premises conveyed. Plaintiff, by his reply, denies the new matter of the answer. Upon the trial, plaintiff testified In substance, that prior to the making of the deal, he asked Mr. Hoefer, one of the stockholders who was looking af ter the matter for Snyder, if the stock was worth 75 or 80 cents on the dol lar. Hoefer said, "perhaps It would be". Ho made the exchange with de fendant, and was chosen manager of the company, acting as such from October 25th to November 28th, 1907. In a short time, finding out that the company did not amount to anything and had no money to pay Its bills, he told the directors that he would not serve In a firm that could not pny Its bills, and resigned. He knew the company was in bnd shnpo, but did not know that It was Insolvent until March 16, 1908. While manager, he found statements of Indebtedness contracted the summer previous, and entered them In the books. He and Mr. Hoofer were appointed as a com mittee to examine the books kept while Mr. Snyder was manager, but as it was such a tedious job, they simply accepted Snyder's work with out examination. On cross examin ation, plaintiff further stated that he did not look at the plant before mak ing the contract. Some one told him there was about $1900 of the com pany's Indebtedness when he took the stock. He made practically no inquiry before concluding the bar gain. He supposed Mason thought he was doing him a good turn, by ask lng him to buy this stock. Plaintiff also said that he never offered the stool? back to Snyder until the amended complaint was filed in De comber, 1909, though he did try to sell it to Mr. McClllchrlst. Finding the material on hand, machinery, etc., appraised too high, was one of the causes that made him wish to sell out t George F. Mason, witness for plain tiff, testified to the effect thot he was formerly In partnership with defen dant Snyder, In the box business, for five or six months, doing very fairly. Not having money enough to carry on the business, they Incorporated the company and turned the property over to the corporation at $11,000 In stock. Ity purchasing- the Voget property for $2000, and Hurst lot for $ir0, by building warehouses and ad ditions to the buildings and Improv Ing the plant generally, they placed themselves In debt about $9,000. lley A. MooreH, brother-in-law of plaintiff, testified lti identification of the records of flu directors' meet ings. He stated that ho was secre tary of the company, that Snyder was manager from September 9th, 1905, until plaintiff bought In; and further that he advised Elgin, before the deal was made, to make a thorough In veatlgatlon of the business. Defendant Snyder In giving his version of the matter, stated that at the time the company was organized, they took nu Inventory of the Mason Snyder property and put what they thought a fair price on it; new ma chinery, at cos, old, at a depreciated value, lumber at cost laid down at the factory, finished products at estimat ed cost. In March, 1907, the plant was moved from South, to East Sa lem, October 7th, 1907, he, as mana ger, represented liabilities of the company to be $S223.91 Including part of the costs of Improvements, lie then thought that if they could get a little money to tide them over until they could collect in, they would be able to carry the business through. He considered the stock, at that time, worth 60c on the dollar. Snyder stated In substance, that the only conversation he had with plain tiff In reference to the purchase, was a telephone message. In which Mr. Elgin asked him If he had some took In the box factory t trade for land. He, Snyder, answered that he COURT DECISIONS t. A. Turner, Exporter e( the Ceirt had, and Elgin asked htm to call at . hit) real estate office. Authorizing '.Mr. Hoefer to act for him, he first nothing about the business that win ter. A. F. Hofer, witness for defendant, stated that he and Wiley A. Moores checked over the Inventory and In voices of the property turned over to the company, and considered $11,000 a fair valuation. Mr. Elgin, as man ager, had access to the books and could have obtained the books of Mr. Moores before he purchased.. Acting for defendant, he traded "so much stock for so much land." The value of the stock was then somewhere be- "" nun known to him until plaintiff and his friends ran it Into bankruptcy. "Then he commenced to squeal". Robert MeOilchrlst testified In part that lie bought three shares of stock in the company, January 1st, 1907. In October, 1907, when he was one of the directors, stock was reputed to be worth about 75 cents on the dollar. Three weeks after Elgin became man ager, the latter offered him his stock for 75 cents and later for 50 cents. He came near selling his farm and buying the stock as he considered the company solvent at that time. The business was a success-durlng the time he was employed to run It. Mc Gilchrist Bald, "these holidays hit us pretty hard," referring to the finan cial panic In this state which oc curred soon after plaintiff entered Into the business. It appears that for about six weeks, legal holidays, known as bank holidays, were de clared and banks were closed. Dur ing that timo boxes were shipped in from other factories and sold for less than they could be manufactured in Salem. The property of the company was appraised in the bankruptcy proceedings at $5027.50 and sold for $3000. The stockholders realized nothing on the stock. Bean, J. From the evidence It ap pears that the Salem Box and Lum ber Company was an Infant industry. Its parents, the Incorporators, seemed to have had faith In its fu ture development. Its success de pended In a great measure upon faith and credit. The capital was limited, and Instead of growing to huge proportions, 'the Industry pined away and died. This contract, In controversy for the exchange of stock for land, was made about October 19. 1907. Plain tiff entered into active management of the business, assisted in increas ing the debts of the company, and as he states, found out in a short time that the concern did not amount to anything, and had no money to pay Its bills with. For that reason, after about a month, he was unwilling to serve as manager. Notwithstanding this fact, he retained his stock, treated It as his own, speculated on the chance of the business improv ing, and the stock increasing in value, and did not offer to rescind the contract, or return the stock to defendant Snyder, until the complaint was filed in this suit, March 6th 1909, the tender of the stock "being long after that date. It Is a well settled principle of law, and so held In this state, that one who desires to rescind a con tract must act promptly upon the UlBcovery of the accident, fraud, or mistake which affords grounds for the relief sought, and place the other party In statu quo, returning or of fering to return that which has been received: Vaughn v. Smith, 34 Or. 54; Slevers v. Brown, 36 Or. 218; Clurno v. Grayson 30 Or. 111. It was held by this court In Scott v. Walton, 32 Or. 460, that a party Induced by fraud to make a contract, has upon the discovery of the fraud, an election of remedies, either to af firm tho contract and sue for dam ages, or disaffirm it and be reinstated In the position In which he was be fore It was consummated. The adoption of one of theBe remedies, which are wholly Inconsistent, Ib the exclusion of the other. If he desires to rescind, he must act promptly, and return or offer to return what he has received under tho contrait. He can not retain tho fruits of the contract, awaiting further developments, to de termine whether It will be more profitable for him to affirm or disaf firm It. Any delay on his part, es pecially In remaining In posesslon of the property by him under the con tract, and dealing with it as his own, will be evidence of his Intention to abide by the contract. The conduct of tho plaintiff In this case. In regard to this contract, does not measure up to the standard of the rule laid down In either of the above cases, for one who desires to rescind a contract on the ground of fraud, it was plaintiff's duty, when he became dissatisfied, found that the concern did not amount to any thing, and would serve no longer as manager, If he desired to rescind the contract, to do so then, Inform defen- dent S. H. Snyder, and return or of fer to return the certificates of stock which he had received. He had no right to retain the same and await future developments. In order to as certain whether, under favorable conditions, the venture of the com pany would be a success, or under adverse circumstances, a failure. It was no excuse for plaintiff's failure to return the stock that It after wards became valueless; Crossen v. Murphy 31 Or. 119. Neither does the allegation in the complaint that he did not discover the evidence of the transaction, for a long time there after, constitute an excuse for his de lay of Bbout two years. During this time he retained the consideration he had received, which was au evidence of his Intention to abide by the con tract, and he la not entitled to main tain r suit in equity to rescind such contract: Scott v. Walton, supra. As to the original transaction, It would seem from the evidence which we have set out quite fully, that i while the figures placed upon the property of the company, represent ed in part by the certificates of stock transferred to plaintiff, were high, plaintiff was, to say the least, negli gent in making no examination of the property, especially the real estate. and no investigation In regard to the value of the stock. It Is recognized by law to be char acteristic of human nature, for the owner to set a high value on bis property, for the purpose of enhanc ing It In his purchaser's estimation. Hence, when the parties are dealing on an equal footing, It does not help the purchaser, who relies upon the vendor's statement as to value, when no warranty is Intended, and when the language used does not affirm some specific fact, but is a mere ex pression of opinion: Scott v. Walton, supra; Pomeroy's Equity Jurispru dence, Sec. 878. The trial court found for defen dant In regard to the validity of the contract, and under all the evidence and circumstances of the case, we think the decree of the circuit court was right and should be affirmed, and it Is so ordered. Kuratll t. Jackson, Washington Connty. Decided, October 17, 1911. E. I. Kuratll, respondent, v. J. W. Jackson, appellant. Appeal from the circuit court for AVashlnton county. The Hon. J. V. Campbell, Judge. Ar gued and submitted Sept. 21, 1911. S B. Huston, Benton Bowman and (H. T. Bagley, on brief) for respondent. W. G. Hare (Bagley & Hare, on brief) for appellant Eakln, C. J. Reversed. On July 27, 1908, defendant en tered Into an agreement with plain tiff whereby he sold and agreed to convey to hkm certain real property known as the "Chenette Row Build ings" in Hlllsboro, Oregon, for $3,000, upon which purchase price plaintiff paid $20, and defendant exe cuted to him his receipt therefor in the following words: "Hlllsboro, Ore., July 27, 1908. "Received of E. I. Kuratll, Twenty and no-100 dollars In part payment on property known ns the Chenette Row Buildings on Main St. bet. 1st and 2nd St., Hlllsboro, Ore. for $3,000. Bal. to be paid when good title is furnished by Aug. 1st, 1908. "J. W. JACKSON." At this time the property was oc cupied under Jackson by various ten ants, of whom plaintiff was one. De fendant, a married man, was the owner of the property, Bubject to a life estate In a part thereof, namely: the dower estate of Luclnda C. Jack son, the mother of defendant. On July 31, plaintiff tendered to defen dant the balance of the purchase price and defendant refused to con vey. Plaintiff brings this suit for specific performance of the contract and sets up the defect in the title of the defendant, namely: the dower In terest of Luclnda G. Jackson, al leged to be of the value of $300, as well as the Inchoate dower Interest of defendant's wife, Maria Jackson, of the alleged value of $500; and asks an abatement of the price equal to the value of such dower Interests. He deposited with the clerk of the court the balance of the purchase price $2980. Upon the trial the court rendered a decree for specific performance as follows: "The clerk of this court Is hereby directed to pay to Bald J. W. Jackson the sum of $1400 and the said plaintiff Is hereby ordered and directed to make, execute, acknow ledge and deliver to the clerk of this court, within 70 days from the date hereof, for delivery to the defendant, J. W. Jackson, a first mortgage upon the real property herein described, conditioned as follows: that upon the death of the said Maria Jackson, or whenever the said Maria Jackson shall release ana convey to the said E. I. Kuratll, his heirs or assigns, her Interest in said real property, the said E. I. Kuratll, will pay to the said J. W. Jackson the sum of $1420, with Interest thereon at the rate of six per cent per annum, interest pay able annually, and in the event of the death of J. W. Jackson, before the death of Maria Jackson, that the said E. 1. Kuratll will pay to the estate, representatives, heirs or assigns of the ! said J. W. Jackson, upon the death of Maria Jackson, or whenever the said Maria Jackson shall release and con vey to the said E. I. Kuratll, his heirs or assigns, her . Interest in said real property, the said sum of $1420, less such sum or sums as the said E- I. Kuratll, his heirs or assigns shall have previously paid to the said Maria Jackson as dower In and to said real property." Defendant appeals. Eakln, C. J. Assuming without de ciding, that the receipt given by Jack son wns such a memorandum of the agreement as fulfils the requirements of the statute of frauds, the Impor tant question Is, whether plaintiff is entitled to the specific performance of It In this suit under the facts dis closed. The court adjudged the value of huelnda C. Jackson's Interest to be $160, and that Maria Jackson's In terest to be of tho possible value of $1120; and also adjudged that plain tiff la the owner of the land In fee, and provided that. If Luclnda C Jackson and Maria Jackson refuse to Join in a conveyance, the purchase price be abated by the value of Lu clnda C. Jackson s dower interest $160; nnd that the possible value of Marias Interest $1420 shall be se cured by a mortgage to defendant payable to his estate, after the death of both defendant and wife. If Maria survives him, less the amount that may have been paid by plaintiff to Maria as her dower. Luclnda C. Jack son has a right at any time, unaffected by this decree, to have her dower In the property assigned; and Maria will have the same right If she survives her husband. If her estate should hereafter be assigned, the damages suffered by plaintiff by reason thereof can only be assessed after the death of Maria as the value of the use of such Interest during the time it shall have been so occupied by her or her assigns and not, as specified In the mortgage, which seems to contemplate a payment of money to Mari-i by plaintiff. It must be conceded that the value of Maria's inchoate dower Interest, which Is a contingent life estate in one-half of the land, cannot possibly be equal to one-half of the va'uo of the property. By any theory of the case Jackson Is entitled to the present cash value of hla Interest, which the complaint admits Is $2200. However, the decree of the lower court gives TIZ-FOR SORE FEET Tired, Aching, Swollen, Smelly, Sweaty Feet? Coras, Callouses or Bunions? I'Ss TIZ. It's Sure, Quick and Certain. Vou Will Enjoy Using TIZ. The Most Pleasant Remedy Vou Ever Tried and Moreover It Works. At last here is instant relief, and a lasting permanent remedy for sore feet. No more tired feet. No more aching feet. No more swollen, bad smelling, sweaty feet. No more corns. No more bunions. No more callouses, no matter what ails your feet or what under the sun you'vo tried without getting relief, just use TIZ. TIZ is totally unlike anything else for the purpose you ever heard of. 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Nowadays we don't have to resort to old-time, tiresome methods of gathering the herbs and making the tea- This is done by skillful chem Ists bptter than we could do It our- selves, and all we have to do is to call for the ready-made product, Wyeth's Sage and Sulphur Hair Rem edy, containing ( sage in the proper strength, with the addition of sul phur, another old-time scalp remedy. The manufacturers of this remedy authorize druggists to sell it under guarantee that the money will be re funded if it falls to do exactly as represented. Don't neglect your hair. Get a bottle of Wyeth's Sage and Sulphur today, and notice the difference after a few days' use. This preparation is offered to the public at 50 cents a bottle, and is recommended and sold by all drug gists. Special agent, J. C. Perry. relief to the plaintiff very different from that prayed for or contemplated by the contract, and it is not likely that plalniff would now consent to it if it were not for the possibility thnt the decree will coerce the wife to Join In a deed to him, as the court cannot give htm a title free from the dower estate. According to "Glaque & McClure's Value Tables," the value of Luclnda C. Jackson's interest at the time of the decree, if her dower became consum mate subsequent to May 18, 181)3, was $311.49; and If defendant were now dead and the dower of Maria consum mate, its present value computed at 6 per cent would be $869.70 the value of the property being $3000 and the wife being 52 years of age at the time of the trial. But the husband and wife being of the same age and . as suming them to be equally in good health, the expectation of life of the husband Is approximately equal to that of the wife; and there Is nothing upon which to estimate the value of the wife's dower. Glauque & Mc Clure's Present Value Tables, at page 192. gives the expectancy, at the age of 52 years, of males 19.84 years, and of females 19. 87. Therefore, the wife's prospective dower Is for less than eleven days, and It Is purely a gamble that she will not outlive her husband. According to the same author the present value of the Inchoate dower of the wife is $173.59; and the plain tiff has not the privilege or right to cut off the wife's dower by payment of that amount, nor does that sum become the maximum of the liability of the property hereafter. When a court attempts to determine the pres ent value of an Inchoate dower inter est, the result is most unsatisfactory and unreliable. Computations based on mortality tables are a rule of val ues In law. In actions for damages, or other cases where questions arise de pendent on the expectation of life, but it seems to be a very doubtful basis upon which to compute a value to be substituted for a price fixed by con tract. These mortality tables are no doubt approximately correct as an av erage of many cases, yet in any indi vidual case reliance theron would be a mere speculative hazzard. Glauque's "Settlement of Estates," at page 816, says that the present value of the contingent dower during I CHALLENGE We challenge any store in Salem to offer Ladies' Coats, Suits, TJress Goods, Silks and Millinery af less prices than we do for this week. We are overstocked, Profits cut no figure it's disposing of the goods we are after, Do your buying here this week and save money, life 9 k l ' xJfr-S Challenge Prices on Dress Goods, Silks 5000 yards of Fine Wool Dress Goods, all the latest weaves and newest shades, now on sale Yard 25c, 35c, 49c, 65c and up The Greater the husband's life may be ascertained with reasonable certainty from estab lished tables of mortality aided by evidence in reference to the health and vigor of the husband and wife. Nothing is given in this case upon those matters, nor can we conceive In what manner or by what rule the effect of the present condition of the health or vigor of the husband or wife upon their longevity can be com puted with mathematical certainty to affect the value of the inchoate dower in such a case. Plaintiff in this case knew at the time he took the receipt that defendant was married, and if he desired the contract to Include the wife's dower he knew how to secure it, and now he is not in a position to ask the court to make a new contract for him. In Sternberger v. McGovern, 56 N. Y. 12, 19, the court say: "Under such a contract, to require the defendant to convey the Mott Haven property to the plaintiffs and pay such compen sation as the court should determine its market value was Impaired by the outstanding Inchoate right of dower, or such sum as the real value of such right ascertained by the tables of mor tality, would be harsh and oppressive. The defendant never made a contract to do this. To charge him with the difference in the market the title would impair that to a much greater extent than the real value of the right. To compel him, In effect, to purchase the right, by paying the plaintiff therefor, Its value determined by the tables of survivorship and mortality, would in a case like this be unjust. He as we have seen, contracted for an exchange of his property for that of the plaintiffs; loss which the appli cation of those tables to this particu lar case might subject him. These tables when applied to a great num ber of cases will, in the aggregate, show correct results; hence, they may be used yb life insurance companies with safety in fixing their rates, and are resorted to by- courts when the i probable duration of life must be de jtermined in adjusting the rights of parties. But to determine the value of the Inchoate right of dower In this way, for the purpose of enforcing the specific performance of a contract for the exchange of real estate, with com pensation, would be unsustained bv precedents or sound principle." And In that case plaintiff was relegated to his remedy for damages. In Cowan v. Kane, 211 III. 576 (Oct. 1904) it Is said: "In attempting to support the decree, counsel say that a computation can be made upon the basis of the mortality tables. Such tables are used more from necessity than because they are a reliable guide in fixing the probable duration of any individual life, being mere averages of many lives, but we know of no tables by which the value of an in choate right of dower can be approxi mately estimated It would be carrying the use of mortality tables to an unwarranted extent to apply them in such a case to determine sub stantial rights." As to whether a court of equity will enforce a specific performance in such a case by ascertaining the present value of the Inchoate dower of the wife, and abating the price to that amount, the authorities are quite at variance. This may be partially ac counted for by the fact that the courts, holding that performance will be decreed in such cases and the price abated to the extent of the value of READ UIN CHALLENGE SALE ON MILLI NERY We challenge any store in Salem to offer stylish trim med Hats, French plumes and willow plumes at the ex traordinarily low prices we are of We Challenge Any Store In Salem to offer this week such values as we are offering in ladies' Suits and Coats, Every garmnet is made of the new est materials and the latest styles, a 1 1 handsomely tailored and fin ished, SI 2 Coats, $7,90 $20 Coats,$11.90 $15 Suits, $7,90 $18 Suits, $10,50 $25 Suits, $12,50 Challenge Prices fering them this week, Come here and save'money, French plumes $6 and $8 values for $2,95,$3.50 $5, $7.50, and $10, . Trimmed Hats, now only $2.50, $2.95 $3.SO, $4.50 and Up CHICAGO STORE "The Store That Saves You Money" ' CAPITAL VI CK BROS., Full line of AutomobllA T J2;Bwf?J?nd rePalrln&- All LOCOMOBILE. OHIO RtmnnM FORD AUTOMOBILES Am irui.r.v Tvnnva ' I J91?,.0? now ln 0411 &nd 868 ouui.ii uiueriy Biree-i. the dower, are those in states where law and equity are administered by the same court' and all distinction in procedure between them is abolished, while those refusing to enforce them are courts in states where the pro cedure in law and equity cases is kept distinct- Upon this point compare the classification as to procedure in 16 Cyc. 24 and note, with the cases cited in the opinion by Woodson, J., in the case of Alple-Hemmelmann Real Est. Co. v. Spelbrink, 211 Mo. 671, and note to that case in 14 A. & E. Ann. C. at 671. There is no dissent from the state ment that plaintiff Is entitled to a decree of specific performance If he is willing to accept a deed from the vendor alone, with covenants ab hrnnrt as those called for in the contract,and he may then resort to his legal rem edy. If he has one, against the vendor. If, however, the vendor's, interest in the land is subject to a contingent estate, and specific performance of the contract la asked with abatement of the price to the amount of the value of such contingent interest to be determined by the court It is be yond the province of equity to adjust such value and substitute a price for that one fixed by the parties. This court has decided that a contract for the sale of land by the husband in which the wife has not joined is not mutual and, therefore; not enforcible In equity: Whiteacre v. Vanschoiack, 5 Or. 113, 118. This case is cited with approval In Deltz v. Stephenson, 51 Or. 596, 606. . Specific performance in such a case does not rest on the same principle Involved where the vendor owns only an undivided part of the fee, in which case the vendee, if willing to accept it, may tender the proportionate amount of the price, it being unneces sary for the court to determine its value: See Moore v. Garigllettl. 22 S III. 143, and note to this case in 10 A. & E. A. C. 560. It is said in Riesz'a Appeal, 73 Pa. St 491, that the dower right of the widow is of such a con tingent nature, depending as It does upon her surviving her husband, as well as her continuing In life after his death, that no abatement In the SALE fit Il Challenge Prices on Dress and Waisting Silks 3000 yards to make your selection from, Every yard up to the hour in style and de sign, Sale price Yard 25c, 35c, 49c, 69c and up Salem Oregon GARAGE Proprietors. work guaranteed. Agents for t ojb-i ivn mTimnn m them- Phone Main 784. 17! OUR BREAD IS OX A PEDESTAL OF ITS OH The public demands good bread and we supply it. There is a certain satisfaction about getting good bread that only those who have tried our bread can appreciate. It is uniform ly the same excellent quality. Trf it once and you will eat no other. CAPITAL BAKERY 439 Court Street Phone 93 price can be made which would be Just to both parties without In effect making a new contract for them, contract which perhaps in the first instance neither party would ha" agreed to, certainly not the vendor. This is the holding in Alple-Hemmelmann, etc., Co. v. Spelbrink, supra, l which the opinion is exhaustive and is supported by the authorities waicl are there collated. The following aes supporting that view: Rellly v. Smit. 25 N. J. Eq. 158; Riesz's Appeal, su pra; Fortune v. Watkins, 94 N. C 5M. 315; Cowan v. Kane, 211 111 Sternberger v. McGovern. snpn; Lu cas v. Scott, 41 Ch. St- 611; Graybiu v. Brugh, 89 Va. 895. S99; Barbour v. Hickey, 2 App. Cas. 207; 24 L. 763; Plum v. Mitchell, (Ky.) 26 S. 391 In Alple-Hemmelmann Real ti Co. v. Spelbrink, supra, there is a dis senting opinion by Lamm, to"0' ing the lead of the courts In to Indiana and Wisconsin. Pomeroy on Specific Performance (1879) at Sec. 460 sharply criticise Judge Sharswo6d's reasoning on tn question, in Riesz's Appeal, 73 Pa. ' ! 490, as utterly untenable. But weona ' an array of comparatively recent case : following and sustaining the rule, ; laid down by the courts of Penn3', i vania and New Jersey, which een to be the better and safer rule. I - The case of Bostwick v. Beach iw N. Y. 422, relied on by plainuir In point as the widow signed the co tract of sale, and the ascertains of the value of the dower was tn might be paid to her out of the ' chase price, and she was requtrw convey her dower interest c courts grant such relief only in the refusal of the wife to join m deed was by fraudulent collusion j the husband. Others hold that, . vendee had knowledge that the ew was married, specific P""1 with abatement will not be decrw Lucas v. Scott, supra; Savings Co. v. Parisette, 68 Oh. t .,of. Downer v. Church, 44 N- i- ' tune v. Watkins. supra. K It Is said in Watermen en .i Perf., Sec. 511. "If the he enters Jnto he contra. that the vendor has a wire.