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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Nov. 22, 1911)
" - DAILY CAPTTAX JOrBXAL, 8ALKM, OREGON. WEDNESDAY, XOYRMIIER 22, 1911. figx nu OREGON SUPREME COURT DICISIOHS M II II M VrTVv.,: kj Trade IN THE Men's Clothes Department Trade winners because there is 100 per cent quality there, the styles are correct and snappy they build a future for us, because the customer that wears our clothing feels that they. are a little better than any other for the money, There is economy in buying all-wool clothing try it and be convinced of the truth of our statement, Suits from $10 to $30 OVERCOATS Be sure and get our prices before you buy, It will be greatly to your interest to do so, Trunks and Suit Cases Enough for a wholesale ou have a large assortment to choose from, ou will find the prices wfM- There is Only One "Brosno Quinine" Thai is Laxative Brome Quinine USED THE WORLD OVER TO CUF.E A COLD IH OHE DAT. Always remember the full name, for this signature on every box. O. A. C. Short Courses Begins Jan. 3, Continues rour vycc You Are Invited (2tw till 12-31) t ' ' rp 1 1 A TUT A 1 P AR Al ir. t C API 1 AJL Var-IVr--1 X X 4 vrru- npos Pronrictors VICK BROS- Proprietors X X Storage, Repairing. Supplies. We carry in ch Tl Prest O Lite Tanks. Ever-ready queries eed Cha,n8 and a f u 1 i line of Auto Supple Agents I InnH nfl Flmore Cars. call i - T. - : . c. Winners house, Buy now while reasonable, Excelling in all Esfential Qual ities the Gordon Hat is the best $3,00 Hat in America, You get $5 worth of 'quality when you. buy a Gordoii 6& Look Kvery citizen of Oregon is cordially invited to attend the short courses of the Oron Agrl na tural College, beginning January i. h.en iis Unctive courses will be offered in r Au,u Mechanic Arts, Domestic Snence and merce. Forestry and Music. Kvery curse Is designed to HELP the student In his daily ork. Make his a pleasant and profitable winter ou -ng No tuition. Reasonable accommodations. For beautiful illustrated bu letin a; hire :,h H M TENXAXT, Registrar, Corvallia. 0'on Farmer s Business Course by Correspondence. MM M for Locomom . - ior cu..b rnne aain S3. klngtlcy . Kre$ly nn! Greenouch. Multnomah County. Decided November T. lsn. K. U. Kingshy. respondent, v. H. J. Kressly and Thos. U Greenough. appellants. Appeal from the circuit court for Multnomah county. Thej Him. C. I'. Guti-nbt-in. Judge. Argued j and submitted Oct. IS, 1!11. S. C ' spencer and . K. Farrell (Wilbur & Spencer. V. K. Karrell. and Wm. T. Muir, on briefi for respondent. A. King Wilson and Roseoe C. Nelson (A. C. Emmons. Wilson & Xeal; W. J. Makclim on briefi for appellants. Kakin. C. J. Affirmed. This is a suit to remove a cloud ('roni the title to real estate arising by reason of a written option to pur chase real estate given by plaintiff to defendant Kressly. The material parts of the writing are as follows: Witnesseth: That the party of the first part, for and in consideration of the sum of two thousand (i2.u00l.the receipt of which is hereby acknowl edged, does give and grant to the party of the second part, until April 15. I f 1 1 1 , the sole exclusive and irre vocable right and privilege of pur chasing that certain tract or parcel of land situate, lying and being in the county of Multnomah, state of Oregon, and more particularly bound ed and described in that certain deed from Rosanna Richards, et al to A X. Mills, recorded in the rec ords of deeds of Multnomah county, state of Oregon, in book 3.U',. at page 40;i, at and for the agreed price of one hundred and thirty-five thousand dollars ($135.(HMi) to be paid, if the said party of the second part shall elect to purchase hereunder, in the manner and form as follows, to-wit: iwo inousanu dollars (jaooo) on the execution of this instrument, the , receipt of which is hereby acknowl : edged ; ! Eighteen thousand dollars $18,000) on or before April 15, 1909; , The further sum of ten thousand , dollars ($10,000) payable on or be- 1 fore July ir, 1909; ; The further sum of ten thousand dollars ($10,000) payable on or be fore October 15 1909; ! The further sum of ten thousand ($10,000) on or before January 15, 1910; The further sum of twenty thou sand dollars ($20,000) on or before ; January 15. 1911; I The further sum of sixty-five thou ; sand dollars ($65,000) on or before (April 15, 1914. All payments made after April 15, 1909, shall bear' six (6) per cent in terst, payable semi-annually, dating from April 15 1909. and all payments of principal and Interest shall be made at the Klrst National Bank, of Portland, Oregon. Upon the payment of fifty thousand dollars ($50,000) on account ofprin Icpal, together with the interest thereon, then due the party of the first part shall execute, together with his wife, to the party of the second part a. deed of warranty against the acts of said grantors of the prem- Ijlses above described, and fu party i of " - -econd part shall execute to the party of the first pnrt a first mortgage on that portion of the ! premises lying between the county I road and Willamette river, securing ! the payment of two promissory notes, ; one of which shall be for twenty thousand dollars ($20,000), due on or before .Titniinrv IT, nml tha I ' -i..... a .1. j j ,, oumt nu bi.iy-jie inousanu dollars ($05,0001. due on or before April 15, R 1 1914 both payable at the First Na- itlonal Hank of Portland. Oregon, and , bearing six (t) per cent Interest, payable semi-annually, which notes ; and mortgages shall constitute the .last two payments under the contract : above mentioned. In case the said party of the sec jond part shall not, on or before April 15, 1909, pay the sum of eighteen iiiuusiiiiu uonars tis.vuu, as anove specified, then this agreement shall 'thereupon become at once null and i void, and the party of the first part may and shall retain to his own use i and benefit the said sum of two thou sand dollars ($2,000) and until the payment of said sum of eighteen thousand dollars ($1S,OUO) this con tract shall constitute an option, only, to purchase on the part of the party of the second part. And after the said sum of eight pen thousand dollars ($1S,00oi has;"'e ,,he 01 "''I'Daca v. ure. & ( alir. been paid, the party of the second u- ('- wn" decided. Mr. Justice Ilean part herebv covenants and agrees to 1 in tllHt aK0 t,il-VH- ,llllt y the settled purchase said real property upon the ! doctrine In England "that an agr terms and conditions above men- tloned. It is further mutually understood and agreed by and between the par ties hereto thnt the party of the first part shall furnish an abstract of title showing he has a fee simple title, free from all encumbrances ex cept the right of way of the North ern Pacific Railroad company, and the county road In and to the above described premises, at the date of the execution of the deed above men- tloned, to the party of the second part. nd if said abstract of title shall fail to show such fee simple title lni,ll,! brnellt or the vendor, although the partv of the first part on the date!"1" v,,ndees were ready to pay wiibln above mentioned, and if said party th U'"" mentioned In the written of the lirst part shall not within a j '"titract. In the note to that case, reasonable time thereafter obtain j referred to. many cases nro cited sup such fee simple title in himself, he lifting the conclusion of Mr. Justice shall return to the partv of the .c-(". where It Is said: "Evidence of ,,mi onrt the sum of two thousand I '""al agreement altering tho terms dollars ($2.iio0) deposited as afore- said, and this agreement shall there upon become at. once null and void, it in furt'ier mutually understood and agp ed bv and between the par-i"f the written contract, where it ap ties hereto that the party of the sec-! l-rs that the contract, as altered, ond part mav enter into and have j has been acted upon by the party of-no-session of the above described j ferlng the evidence ." Other cases ar-pr-niises upon the execution of this rive at tho same result but place It agreement and retain possession on the ground of an equitable eatop U ereof so long as he complies with S PI. that he who causes anything to the conditions above mentioned." be done, or prevents It from being done Pla'ntiff alleges that defendant I shall not avail hlmsWf of the per-Kre-slv failed and neglected to make formance or non-performance which ...". ,o'v,,.rt of Jthobi) on Ai,ril 15. he himself has occasioned. Others ywj and on that dav notiiled him i that' he was unable to do so. and ! abandoned the option. Defendant besides certain denials, t allege that plaintiff failed to furnish ing been Induvd to let the time of an abstract showing that he had a payment go by, by oral promise of Cti,pf, title V, the land; and a extension of the time-to perm t the f h " defend that, prior to April I statute of frauds thereafter to be In- I ." ., . .... I ... ..,v.,..n. , bvlvokwl. But where the situation of l.j IW-i the time of payment , uy mitual consent, H modified ana ch.-nged as not to require the pay ment of the JH.Oun on the 15th of Auril- and that the defendants, with in the time agreed, tendered to plain tiff all payments which , were to be y-Q yh'k Mr-, t L C:;";; , f , ..... - Harry Davenport nnd Amy Lesser In made under the modlfie:! contract, Defendants, on May 28, 1909, had the option recorded and thereafter have been claiming some Interest in the premises thereunder. I pon the trial findings were made and a decree rendered In favor of until the payment of said sum of $18, plalntlft for the relief asked. De- 000 this contract shall constituto an fendants appeal. option only, to purchase on the part Eakln. C. J. The contract by its terms Is an option. Kor the consld- eration of $2,000 paid, plaintiff grant- ed to defendants, until April 15. 1909, the exclusive and Irrevocable chase said real property upon the privilege to purchase the land. It terms and conditions above men was unilateral until accepted by de- tloned." fendants on that day. Until then : Dy the evidence of plaintiff. Green- they were In no way obligated to buy, and It was not a contract of sale. April 14, Bt which time Greenough Plaintiff was bound by his offer, dur-- was notified that the $18,000 must be ing the time specified, that he vns:pold on the 15th or the option would not at liberty to withdraw it, there lapse; that on the 15th Kressly, by being a consideration paid for it. It the direction of Greenough, reorted is true the $2,000 was to constitute to plaintiff thnt they could not meet a part of the purchase price, if the, the terms of the contract; and that sale was completed, but that sum they would forfeit tho $2000 and dmp was plaintiff's money In either case. I the matter. Upon these facta there But to have the option culminate In a . contract of sale, defendants must have accepted it within the time specified, and the acceptance was to be evidenced by the pavment of the $18,000 on April 15, 1909; House v. Jackson, 24 Or.89; Clarno v. Gray son, 30 Or. Ill, 120; Krlendly v. El wert (Or.) 112 Pae, 1085. Until that should be done defendants would ac quire no right In the property, ex cept that if they enterd Into posses sion they would not be trespassers while they compiled with the condi tions of the agreement. Their right to possession was no more than a contingent license. As to the effect of a subsequent parol modification of an agreement of the sale or real estate, the rule Is, that an agreement, required by the statute of frauds to be In writing, cannot be subsequently changed or modified as to the time of perform ance by any oral executory contract. There Is a full discussion of this question In Neppaeh v. Ore. & Calif. R. Co. 46 Or. H74, and In the note to that case In 7 A. & E. A. ('. 1041, from which the conclusion Is irresis tible that such a subsequent parol modification is void. To hold other wise would be to open the door to the very frauds tho statute of frauds was intended to prevent. However. there Is an exception to that rule to 1 the effect that equity will not permit the statute of frauds to be usihI to perpetuate a fraud, namely: if there was a subsequent oral agreement for an extension of time of payment act ed upon by the vendee, equity will not permit the vendor thus to induce the vendee to make a default In pay ment, as provided by the written agreement nnd then invoke the stat ute. This was the point upon which ment required by the statute of frauds to be In writing cannot be subse quently changul or modified ns to the time of performance, or In any oilier respect, by an oral executory contract . In this country probably a majority (of states) deny the valid ity of such an agreement, unless acted upon by the parttcH. and bold that a part of a contract required by the slut ute to be In writing cannot rest in i !''' pm, -..,, u, m,iu mat me f aHe ,,,,ftir" r",lrt was within the 1 exception named, viz.: a subsequent eu'iisiou uM'reiii mm ueen orany : "fcrecn upon at me request of and for of a written contract within tho suit ute of frauds, while not evidence of an enforceable agreement. Is admiss ible to establish a waiver of the terms ; hold that the statute of frauds may (not be Invoked to perpetuate a fraud. inis is upuu uiw ,, wiy umi ,i ,u (be a fraud upon the vendee he hav- yoked. But where the situation of the parties Is not. altered In reliance upon a subsequent oral agreement, such agreement Is within the statute and must be In writing. ADolying tills rule to the facts In this case, the time of the option was "The f iiiiiiiuMilers'' at The Grand. until April 15, when If the $18,000 was not paid "then this agreement shall thereupon become at once null and void, and the party of the first part shall retain to his own use and benefit the said sum of $2000, and of ,lle lwO' ' t'1 second part. And the said sum of 118,000 has been l'aitl. the party of the second part hereby covenants and agrees to pur- ough had a talk with plaintiff on is no ontroversy. loiter on the 15th, Connell, representing only himself, saw plaintiff and asked for an exclu sive option to sell until tho following Monday, which plaintiff refused, but told him if he ouUl find a buyer to bring him around and he. would talk It over. Connell testified to the same conversation and Aald that plaintiff told him the (leal had fallen through, but that he wmild give him another chance;, that plaintiff made ona or two propositions for a now deal which he told him he was not In a condition to consider at that time and would see him in a few days. Thus It is plain thnt the option expired by Its own terms on the 15th of April, and there was not at any time an agree ment to sell between plaintiff and defendants. Thero was considerable testimony Introdued as to subsequent attempts to renew or reinstate tho option on new conditions, but It docn not con vince us thnt there was any new agreement made, but If made it was not In writing, and, therefore, void under the statute of frauds. Tho matter urged by the defend ants, to tho effect that plaintiff not able to perform his part of the contract, and therefore could not for feit the agreement of snle, Is based upon the theory that the agreement was an executory contract of sale. Hut It was not such nnd could only have been made by the payment of $18,000 on the lath of April. As to th suggestion that plaintiff could not give a title, It Is admlttiNl that, defendants bail an abstract of tille on the day of signing the option from which they bad notice that plain tiff had only a bond for a deed. At least It could not have more than this and an abstract Hfiowing ttie fee sim ple title In the plaintiff was not due by the terms of the option until the time the deed was to be executed to the defendants, which was January 1.-,, Viin. As to the possession, tho contract provided that tho defendants "may enter into nnd have possession of the alKive described premises upon the execution of this agreement, and re tain possession thereof so long as be complies with the conditions above MM 'III Mill' 11, It IIWVB II ML il M It I I, Hill defendant cnitTed upon the khhhhIoii thereunder, other than that one of the defendants unloaded some tools upon the premises nt, one olnt, The right of possession by defeiidanls, If they hail taken it, was but a mere license until they performed the terms of the contract, and on April 15 when they gave plaintiff notice that they could not make tho first payment, they end ed their relation to the property nnd surrendered their possession If they had any. The possession of its grade and track across the premises by tin I'nlted Hallways Is not Involved here. It Is not pleaded and It Is not such a iossesslon as can defeat plaintiff's remedy to (pilot title against defen dants and does not defeat tho Juris diction of the court In this case. If was a trehpasser on the land or has some right under the plaintiff, the decree in this case dws not affect It, and Its possession was only a small fraction of the premises Involved here. In a suit to quiet title, the require ment of the statute (Sec. MB) that the premises shall not be In tho ac tual possession of another Is that, If defendant Is in possession, plaintiff has a remdy at law by ejectment and that action would determine defen dant's right If, however, that rem edy Is Inadequate to grant the relief desired, equity will entertain Juris diction even If plaintiff is not In pos session: State ex rel. v. Warner Val ley Stock Co, f, Or. 2H3, 300; 17 Kncy. PI. & Pr. 309, 311. In Alton Marine Fire InH. Co. v. Huckmaster, 13 III. 201. 205, it Is stated that "The reason why the party out of possession cannot maintain ilm ABSOLUTELY PURE I Makes delicious home baked foods ol maximum quality at minimum cost. Makes home baking a pleasure The only Baking Powder made from Royal Grape Cream of Tartar No Alum No Lima Phosphates A GREAT PLAY AND A STRONG COMPANY THE COMMrTKItS" AT THE (JUAJill TOMIiHT PRESENTED HY THE OKKHXAL CAST A UKM'IME TREAT, DON'T MISS IT It will bo Interesting to note the treatment given by James Forbes to the subject matter of his lntest com edy "The Commuters", which Is to be seen at the Grand Opera House to night. The refreshing originality shown by Mr. Forbes in the creation of his "Chorus Lady" and "The Travollng Salesman" leaves the local public to expect something exceptionally unique In "The Commuters'. As the tltlo suggests the plot of the play re volves around a family of suburban ites nnd any one at all familiar with this phase of city life will readily ap preciate tho humor that may be in troduced Into the story by one pos sessing Mr. Forbes'- keen gift of ob servation, "Tho Commuters" Is de signed to furnish a contrasting study between the suburban and urban point of view and to develop amus ingly the difference between tho mar ital state and that of single blessed ness. The play is In four acts and the action takes place at tho home of Mr. and Mrs. Brice, who reside ad jacent to what may be termed any large American city. Mr. Henry, B. Harris, the producing manager, Is sending "The Commuters" hero with tho New York nnd Boston company which Includes Harry Davenport, Amy lesser, Florence Malone, Lil lian Thurgate, Pauline Dullleld, Ha zel Malcolm, John Robert Hon, 10. Y. iJ. Backus, .Maude Sinclair, Min nie Williams, Karra Kenwyn, and others. casWtssurTly straighten you out No Headache, HIIIoiisiichh, Timet Nlniiiach, lazy I, her or ( iinsli pilled Bonds by morning. Are you keeping your bowels, liver nnd stomach clean, pure and fresh with Cascarets, or merely forcing a passageway through these aliment ary or drainage organs every few days with Knits, Cathartic pills, Cas- Itor Oil or Purgative Waters. Htop having n bowel washday. Let Cascarets thoroughly cleanse and regulate the stomach, remove tho un digested sour nnd fermenting food and foul gases, take tho excess bile frf)n tho v(,r and 0Iiry out ot tho system nil the decomposed waste matter and poisons in tho Intestines and bowels. A Casearet tonight will make you feel great by morning. They work while you sleep never grlpi", sicken or cause any Inconvenience, nd cost only 10 cents a box from your drug gist. Millions of men and women take a Casearet now und then nnd never have Headache, HIIIdusiichs, coated tongue, Indigestion, Hour Stomach or Constipated Ilowels. Cascarets belong In every household Children Just love to take them. such a bill, Is that ho may bring an action at law, to test his title, which ordinarily a party In possession can not do Such a bill Is only entertained by a court of equity because the party Is not. In a position to force the holder of, or one claiming to defend under, the adverse title, Into a court of law to contest Its validity; and this, as a general rule. Is a test to which a court of equity will look to determine whe ther the necessity of the case requires Its interference." And this statement of the reason for the rul! Is quoted with approval In Comstock v. llenne berry, i III. 2H: and Apperson & Co. v. Ford, 21! Ark. 74H, 757. Any possession the I'nlted Railways may have, whether by way of an ease ment or wrongfully, cannot be deter-mlm-d In an ejectment action against defendants, nor can ejectment against the I'nlted Railways determine the rights of the defendants, and there fore the plaintiff has no legal remedy against the defendants and equity has Jurisdiction In this form of suit. Tho Judgment and decree of the lower court Is affirmed. IP n tvnj ONE MILLION' DOLLAKS FOB A 0001) STOMACH This Offer Should He a Warning to Every Man and Woman. The newspapers and medical Jour nals recently have had much to say relative to a famous millionaire's of fer of a million dollars for a new stomach. This great multl-mllllonalre was too busy to worry about the condi tion of his stomach. He allowed bis dyspepsia to run from bad to worse until the In end It became incurable. - His misfortune serves as a warn ing to others. Every one who suffers with dys pepsia for a few years will give everything he owns for a new stom ach. Dyspepsia Is commonly caused by an abnormal slate of the gastric Juices, or by lack of tone In the walls of the stomach. The result la that tho stomach loses Its power to digest food. We are now able to supply certain missing eletnont to help to restore, to the gnstrlc Juices their digestive power, and ' to aid In making the stomach strong and well. We know that Rexall Dyspepsia Tablets are a most dependable rem edy for disordered stomachs, indi gestion, nnd dyspepsia. We want you to try them and will return your money if you are not more than satisfied with the result. Three slues, 2I cents, CO cents, and $1.00. Remember, you can obtain Rexall lteitiedlcs In this community only nt our store The Rexall Store, J. C. Perry, Druggist. GRAND OPERA HOUSE Wednesday, Nov. 22 Henry II, Harris Present . A NEW FARCICAL CO.VEDT "The Commuters" By James Forbes, author of "Tim Chorus Lady" and "The Travel ing Salesman" Funnier than Either. Six months at the Criterion Theater, New York Sixteen weeks at tho Pork Theater, Boston. New York and Boston Cast Prices, 50c to $1.60. Seat sale Tuesday, Nov. 21. All patent medicines or medicines ad vertised In this paper are for sale at DR. STONE'S Drug Store Siileui, Oregon Also Dr. Stone's POISON OAK REMEDY A snow white medicine, contains no sugar of lead, opium, nor other poi sonous drugs. Applied every hour it at once relloves, and toon cures In flammation ot the skin generally known as Poison Oak. 25c and 60o bottles. ft, I 1 I i lL.. . - - .... .-. c-,. J 4 Ii3 sonin uoenj tt t)hl ' - rrrvrrvf i -