Daily capital journal., April 10, 1911, Page PAGE SIX, Image 6

PAGE SIX.
DAILY CAPITA! JOURXAL, SALEM, OREGON. MOXDAT, APRIL 10, 1911.
OREGON SUPREME
Fall Test Published by Courtesy of
Supreme
GerVJng t. Laldlaw,
Multnomah'
Coonty.
J. N. B. Gerklng, appellant, v. W.
A. Laldlaw, respondent. Appeal from
the circuit court for Multnomah
county. Hon. John B. Cleland, judge.
Argued and submitted March 15. 1911.
W. P. Myers and E. B. Dufur, for ap
pellant A. E. Clark, for respondent
Moore, J.: Affirmed.
This Is an action by J. N. B. Gerk
lng against W. A. Laldlaw to recover
damages alleged to have been sus
tained by false and fraudulent repre
sentations respecting the title to real
property. The complaint alleges In
effect the Incorporation of the Col
umbia Southern Irrigation Company,
the business in which It was engaged,
and that about December 12, 1904,
Laldlaw represented to plaintiff that
the corporation possessed sufficient
financial ability and Intended to con
struct and operate an extensive sys
tem of Irrigation and to supply water
for that purpose; that It was the
owner In fee of 320 acres of land,
describing the premises, In sections
7 and 8, township 16 south, range 12
east; that relying on such represen
tations plaintiff was Induced to enter
Into a contract with the corporation
to purchase the land for $6,400, on
account of which he had paid $2560
and had given his promissory note
for the remainder, upon which he
had paid as Interest, $250.40; that
such representations were falsely
and fraudulently made, setting out
wherein the alleged declarations
were untrue; that relying on such
statements plaintiff had made valua
ble Improvements on the land which,
with the water right, were reasona
bly worth $16,000; that on May 15,
1906, he discovered that the represen
tations were false in that .the title to
the land was held by the United
States, whereupon he demanded of
the corporation and of Its successor,
the Columbia Southern Irrigating
Company, a return of the money so
paid and a cancellation and surren
der of the notes, but they refused to
comply; and having exhausted his
right to acquire government land
plaintiff lost possession of the
Isea and of the water right to his
uamBB iu Uie sum or ib,uuu, for
wmch judgment was demanded.
The answer denies the material
averments of the complaint and al-
leges in substance that on December
vmluuu. Cuiereu mio a con-
tract with the Columbia Southern
Irrigation Company whereby it was
w rumen water to irrigate 960 acres
oi M. including the premises de-
BcriDeu in me complaint; that such
. ...
Imch LWZ tTltlT
. , , uuou Ule waler supply, ana the right
had been made, all of which plaintiff 0f the company to transfer water to
wellknew before signing the agree- you. A. -Wellf j thInk thftt was
went; that the contract provided the an rlght The attention of the wit
corporation was to cause such desert ness being again called to what de
claims to be assigned to plaintiff who fendant said to him at that interview,
was to secure from the general gov- was directed as follows: "Repeat as
ernment a title to the premises; that much as you can. You must give
he failed to make any proof aa to the
premises described in the complaint, . "The substance of the whole business
but conspiring with his son Grover, was that he was to make a bond for
the latter Instituted a contest which a deed for 7 and 8, and that he pro
resulted in a cancellation of the posed to assign the other two half
desert entry of the claimant, from sections to my son and myself; and
whom the corporation expected to 'that was the agreement there at that
secure the title, and the contestant time."
now holds possession of the land. This testlmonv Is rnrmWntnrf
The reply having put In Issue the
allegations of new matter in the an
swer the cause was tried, whereupon
the Jury, pursuant to directions, re
turned a verdict for defendant, and
plaintiff appeals from the resulting
Judgment.
Moor, J.: As the afctlon of the
court In directing the verdict Is chal
lenged an examination of the testi
mony becomes essential. The admit
ted facts are" that on December 5,
1904, upon payment of $1,000 to J. H.
Cook, an agent of the Columbia Sou
thern Irrigation Company, plaintiff
IHVcured a ten day's option to secure
a rtebt to use water for Irrigating
- 960 acres of land and to obtain a
title to the promises, for all of which
ho was to pay on the basis of $20 an
acre. This real property embraced
-Jtywe ijosert land claims of 320 acres
each in Crook county, held respect
ively by Maria Laldlaw, her husband
(the defendant) nnd Champ Smith,
Tho defendant on December 12, 1904,
assigned his land claim to plaintiff,
whose son, J. O. Gerklng, secured a
transfer of Mrs. Laldlaw'g claim. At
the same time the corporation, by
defendant as its manager, executed to
plaintiff a bond for a deed, covenant
ing to convey a fee simple title to the
southeast quarter and the cast half
of the southwest quarter ef section
7, and tho west half of the southwest
quarter of section 8, all In township
16 south of range 12 east, containing
820 acres of land and constituting
Smith's desert claim, providing plain
tiff on or before January 1, 1906,
should Imve paid therefor $6400. A
contract was also effected December
12. 1904, whereby the corporation
stipulated to furnish plaintiff a given
quantity of water for irrigation, the
concluding clause of the agreement
being as follows: "The claim in sec
t Ions 7 and 8, township 16 south,
range 13 east is to be deeded to J.
N. a (Jerking as per terms of bond
COURT DECISIONS
F. A. Tomer, Reporter of the
Court
given this day and date." The real
, . , . . ..
property last referred to was there-
upon taken posesslon of by plaintiff
who made valuable improvements
thereon. Grover G. Gerklng, who
was not of age when the bond for a
deed was given, on attaining bis ma
jority, contested Smith's right to ths
desert land claim, secured a cancella
tion of the entry and effected a filing
thereon, his father being a witness
at the trial, furnishing the money for
that purpose and thereafter remain
ing with this son in the house on the
premises. This action Is based on
the theory that the defendant being
the manager and director of the Col
umbia Southern Irrigation Company,
has rendered himself liable In dam
ages because, with knowledge of
Cook's representation that the cor
poration was the owner in fee of the
land described In the complaint, he
ratified that statement, although he
knew it was false, and thus became
an active party to the alleged fraud.
The plaintiff, as a witness, was di
rected by his counsel as follows:
"State to the Jury what conversation
you hand with Mr. Cook relative to
this particular tract of land here In
controversy," and replied: "He rep
resented to me, he claimed it was
land ready to be deeded." In refer
ring to Cook's statements as to the
ability of the corporation to furnish
water for Irrigation, plaintiff testi
fied as follows: "He represented the
water proposition to be more than
sufficient for our purpose, and three
or four times as much aa ever had
been needed." This witness, having
further stated that after seeing Cook
he met the defndant in Portland, was
requested as follows: "State to the
Jury what you told him the contract
was, or what the understanding was.
State It as nearly In the words as
you can," and replied: "I told him
that my understandingof the contract
was that we were to have a bond for
a deed for one-half section of the
land and they were to make the
proofs and paymnt on the other. I
did not understand in what way the
transfer would be made of the other
prom-'tracts of land." Q. "What did you
tell Mr. Laldlaw with reference to
representations that Mr. Cook had
made to you about the water supply
and the right of the company to is-
Blle contracts?" A. "I told him that
he represented there was ample wa-
ter, or several times as much as
they would need, three or four times,
i think, was the way it was talked"
q. Btate aa nearly aa can the
exact words that Mr. Laldlaw used to
von in nn.. .
--.-. w ,UUi suueuiDui, m
!!. to '.. "
thft Qi.hBrna, u ,i
that given bv J. O. Oerkln. wh a
with plaintiff when the land was first
examined, and referring to the repre
sentations made by the agent of the
corporation respecting the premises,
he said: "Well, Mr. Cook told us the
land In 7 and 8 was deeded; that
they could give me a deed for that,
or a bond for a deed, and the land in
9 and 13 they would Just have to give
us an assignment on that; that was
not proved up on."
J. H. Cook, as defendant's witness,
was asked, in referring to plaintiff
and to the corporation: "Did you
ever tell him that the company had
title to these half sections of land In
7 and 8?" and answered: "No sir."
Q. ''What did you tell him about
those sections?" A "I told him
there was proof sufficient thera so
that whoever decided to prove up on
it could do so, whether the company
or tho purchaser." Q. "What do
you me.in by proof sumclent?" A.
"Well, desert proofs; that the water
was on the land and improvement
made sufficient to get title." Q.
"That Is, that the law had been suf
ficiently complied with?" A. "Yes
sir." Q. "Was that true?" A. "Yes
sir, that was true."
W. A. Laldlaw, having testified that
he received a telegram from plain
tiff, respecting the option effected
with Cook, there was received in evl
dence. over objection and exception
of plaintiff's counsel, a letter press
copy as follows:
"December 14, 1904.
Mr. J. N. B. Gerklng, Athena, Ore.
"Dear Sir: Enclosed find two conies
of water contract to lands mentioned
In your telegram, with notes en
closed for the balance of the hav.
ment. In regard to the payment for
the proving up on the lands, will say
that the one-half section. In Sections
7 and 8 will be proved up on the last
of this month, when the money will
be necessary for the payment of the
same. The other pieces need not be
prord up on for two years unless you
wish. Please examine these con
tracts, and, if satisfactory, sign and
i acknowledge the same and send to
some bank here, with the balance of
payment, and I will execute the
same and the bank will return one
" . . ... .
copy to you. Hoping mis win oe
" ' v 6
satlsfactory, we are.
Yours very truly.
COLUMBIA SOUTHERN IRRIGA
TION COMPANY.
Per W. A. Laldlaw."
Notice having been served on
plaintiff to produce the original of
this letter and being unable to com
ply therewith he tetslfled in relation
thereto that he failed to recollect
the communication. He was then
asked: "Would you say to the best
of your knowledge and belief that
you did not receive such letter?" and
answered: "I don't think I did."
The evidence shows that the copy
appeared in regular order In a book
kept for that purpose, and as It Is
admitted that contracts were sent by
mail to plaintiff with directions to
execute them, we think the copy
was sufficiently identified and in re
ceiving It In evidence no error was
The defendant's attention having
been called to an Interview with
plaintiff In Portland, by an inquiry
of the court: "Was that the first
time you had seen him?" he replied:
"The first time that I had seen him;
and he said that he didn't under
stand the conditions of the purchase
Just as the contracts were sent up.
He supposed we were to prove up on
the land, and I told him no, It was a
mistake, and that they were to make
proof, and we talked the matter
over quite a bit, and he said one of
these tracts he wanted for his older
son, J. O. Gerklng, I think, and that
he wanted one of them made out to
him, and he couldn't very well have
two," Q. "Himself?" A. "Him
self; he spoke about It, as one of the
sons being under age and couldn't
take It, and so we arranged then to
leave one of the claims, the Champ
Smith claim, which was about ready
to prove up on; the work had been
done at this time to prove up on, and
we would give him a bond for a deed
to be deeded to him when It was
proved up on." Q. "The Idea was
that It would be proved up on by
the company, and this bond was to
secure them; they would get the
title when it came to him?" "Yes
sir." Q. "Did you ever authorize
this Mr. Cook or his brother, B. S
Cook, to represent to Mr Gerklng
that the mnv nwnH ,..!
land?" A "N .r o nM ..
ever state to Mr. Gerklng that you
owned it nr that th n.n
Mr nBrHn th
It. nr hart v t . .
It, or had any power to deed It to
him?" A. "No sir, never did any
more
thfln nr,win n
claims
Q. ".Now, did you
. . .. .. .
inn iur. uerK ng, at tne time ne was
,and. or any other time,
that Champ Smith was the name of
this man who was to make the final
proof and payment?" A. "Yes sir,
I told them who all three of the
names were." Q. "And you are
quite sure you told him It was Champ
Smith?" A. "Yes sir."
Replying to the testimony given by
defendant at the meeting in Portland,
plaintiff said: "I don't remember
that Champ Smith's name was ever
mentioned in ' the transaction." In
alluding to the declaration imputea
to him by the defendant respecting
Grover G. Gerklng, the father fur
ther testified: "I don't think there
was a word said about l.t I haven't
any recollection of mentioning my
son to Mr. Laldlaw in reference to
that."
This testimony has been set forth
at length to show that Laldlaw never
ratified any representations made by
Cook to plaintiff respecting the con
dition of the title to the land In sec
tions 7 and 8 in township 16 south,
range 12 east.
It will be reembered that plaintiff
testified that defendant affirmed the
representations Imputed to Cook as
to the- quantity of water which the
corporation could furnish. This In
quiry, however, is rendered unim
portant by the deposition of Grover
G. Gerklng, who for several years
had resided on the land In contro
versy and In answer to the question
as to whether or not the receiver of
the Columbia Southern Irrigating
company had not shut off the water
from such land before the close of
the irrigating season in the year
1098, replied: "It was turned off my
father's Innd but not off this partic
ular tract. to my knowledge."
Not a word of testimony Is to be
found in the transcript relating to
the financial ability of the corpora
tion which stipulated to furnish the
water, unless an Implication of In
solvency can be deduced from the
fact that the Columbia Southern Ir
rigation Company had been succeed
led by another corporation and that
the latter was represented by a re
ceiver. But however this may be, as
the requisite quantity of water for
Irrigation was furnished for sections
7 and 8, the right to use water on
any other land is not Involved here
in and the question of financial abil
ity becomes unimportant
As there was no testimony offered
by either party tending in any man
ner to show Laldlaws acquiescence
in the representations Imputed to
Cook, respecting the title to the
premises described in the complaint,
I no error was committed la directing
verdict for defendant
I Tl 1 . . .
The Judgment is therefore affirmed.
Cnnst A Co. t. Myers Multnomah
County.
M. A. Gunst & Co., of Portland, a
corporation, respondent v. Bertha
Myers, aonellant ADDeal from the
Myers, appellant Appeal from the
, . - -- "
circuit court for Multnomah county.
The Hon. C. U. Gantenbeln, Judge.
Argued and submitted March 15,
1911. W. A Johnson (Teal, Minor &
Winfree, on brief) for respondent.
Claude Strahan (and H. E. McGinn,
on brief) for appellant. Eakln, C. J.
Affirmed.
For several years plaintiff has been
and Is now the lessee of the build
ing at the corner of Third and Alder
streets, Portland, consisting of sev
erai occupancies, including rooms
numbered 141, 143 and 143 on
Third street, the corner room being
occupied by plaintiff for a cigar and
tobacco business. Room No. 141
had been occupied by one Blair; No.
143 by Reed for a saloon, and No
143 was on or prior to March 31,
1909, occupied by defendant in con
ducting a loaning and mercantile
business under! a lease from the
plaintiff, which expired March 31,
1909. Upon April 2. 1909, plaintiff
brought this action of forcible entry
and detainer In the Justice's court
for possession of room No. 143
Defendant, by her answer, alleges
that on February 1, 1909, plaintiff
and Reed entered into an agreement
by the terms of which plaintiff agreed
to let and lease to Reed the build
ing, excepting the corner room, for
a term of years beginning April 1,
1909; that thereafter on February 12,
1909, Reed let and demised the prem
Ises described in the complaint, room
No. 143, to defendant for a period
of one year, at the agreed rental of
$200 per month; and that defendant
is occupying the same under the
lease.
Verdict and Judgment were ren
dered in favor of plaintiff and defen
dant appealed. The cause was tried
in the circuit court, at which the
court directed a verdict for plaintiff
and rendered Judgment thereon. De
fendant appeals to this court.
Eakln, C. J.: Defendant's right to
the possession of the premises de
pends rpon the authority of Reed to
lease the property to her, and wheth
er he did so. The lease from plaintiff
to Reed, which is dated March 13,
1909, was offered in evidence by de
fendant, and was excluded by the
C0Urt aS lncomPntent Immaterial,
and the defense d"Pen(l3 wholly upon
the terms tnereof- By it plaintiff
leases the Premises to Reed In con
M P MB " C0D"
sideratlon of the provisions therin
I contained on part of the second par-
f " w 8eCn1 P8r"
to be observed and per-
,urmeu- w we nrsi w every monu
nocu jo m pay fii)u rental ior tne
whole of the premises. Including the
three occupancies, there being no
segregation of the rental as to each
occupancy. It is provided "that he
will use and occupy said premises
for saloon purposes only; that
he will not assign this lease, or his
Interest therein, or permit any per
son or persons to occupy said prem
ises or any part thereof, without the
consent of the first party first had In
writing allowing thereof ' .
It is understood by the parties here
to that the leased premises are now
occupied by tenants of the first party,
and that the term of said tenants ex
pires on March 31, 1909; If, for any
cause, the tenants now in possession
of said leased premises fall to give
possession to the first party March
31st, 1909, the term for which the
premises are leased by this agree
ment shall commence when the first
party shall rcover possession of said
leased promises, and the rent re
serve shall be reduced in an amount
equal to fifteen dollars ($15) for
each day that the second party shall
thereby be kept out of possession."
If Reed had had authority to sub
let the premises to defendant on the
first day of April, and did so, and
she attorned to him, at that time It
would amount to surrender to plain
tiff by defendant within the clause
last above quoted from the lease.
But the clause first above quoted
prohibits Reed from making any
lease except for saloon purposes and
only then with the consent of plain
tiff first had In writing. Defendant
has not brought her possession with
in either of these conditions; neither
does it appear that she has attorned
Reed. It Is not shown that Reed has
recognized her as his tenant On
the contrary her agent testifies that
she tendered rent to Reed and he re
fused to receive it.
It Is contended by defendant that
plaintiff has waived the second clause
quoted from the lease by recognizing
Reed as the lessee of the whole
premises. This Is sought to be shown
by Reed's occupancy of his saloon
and subsequent payment of rent, but
plaintiff's right depends upon her on
April 1st, and subsequent payment of
rent by Reed cannot affect her
rights. Nothing that plaintiff has
done constitutes a waiver of the
lease. On the contrary by the terms
of the lease plaintiff was required to
place Reed in possession on April
1st, or as soon as possession could
be secured, and it is provided that
the agreement of the lease should
commence when possession is se
cured, and plaintiff brought this ac
tion promptly on April J. In compli
ance with that nrovlslon of th
lease. What temporary arrange
ments were made between plaintiff
and Reed are wholly immaterial.
There Is nothing to Indicate that
plaintiff is not bound to secure the
possession of Reed. The court did
not err, therefore in sustaining the
objection to the lease when offered in
evidence, as defendant had not
brought herself within Its terms, and
until she did she had no standing in
court. Judgment Is affirmed.
BECHTEH CASE
MAY GO TO THE
JORYJONIGHT
The trial of Fred Bechten, charged
with the crime of adultery, was re
sumed this afternoon In the circuit
court before Judge Kelly, and will
probably go to the Jury this evening.
The trial was commenced Satur
day forenoon, but, owing to the na
ture of the case, considerable time
was consumed in securing a satisfac
tory Jury, The crime is alleged to
have been committed with Josephine
Rule, wife of Newton Rule, of Oma
ha, and the state Saturday placed the
husband on the stand, and also a
daughter to testify as to the mother's
action in relation with Betchen, and
also to prove that she fled with him
from Nebraska." Chief of Police
Hamilton, who arrested Bechten and
also Mrs. Rule, testified with regard
to the apprehension of the two.
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'Cine. Dr. Stone earf ha tt
m tuuu mt
n drug store. Salem, n
th moraine until a i).f
MUST HAVE
CONDUCTORS
ONJLL CARS
An ordinance rn,i.
land, Rallwav. i... . " "e Po
Pany to maintain conductornC0B
their street r rs nPa ill
introduced this eveVug I ? h"
jng of the city counclU 4.
IT that it will be passe(, th rou,
second and third reading nd "
ed Into law. nd eoa-
The company so tt i
falls to maintain a conduct,
line running souta tn
on Winter street; on rh. i?
nlngtothe Asylum frot "
on Fourteenth and Capitol 8tre ef
also on its line running fr' ,1
switch on North CommercZt
to the fair grounds and on JJJ
Commercial. When these K
are reached, it is maintained
conductor leaves the car, iock8
Tcharge Th. . m0trms
m charge. This leaves the mm.
ers, it is asserted, bottled up ,L
cars, and without any avenue of 1
cape should an accident haDDM
save through the front door. Manr
inconveniences are also alleged to
occur by reason of the failure of the
company to maintain conductors on
the lines In question.
c ,
It's Equal Don't Exist.
No one has ever made a salre
ointment or balm to compare a'
Bucklen's Arnica Salve. It's the out
perfect healer of Cuts, Corns, Burnj,
Bruises, Sores, Scalds, Boils, Ulcers.
Eczema, Salt Rheum. For Sore Eyes
Cold Sores, Chapped Hands or
Sprains it's supreme. Unrivaled for
Piles. Try It. Only 25c at J. C. Per
ry's, Druggist.
o
205 Acre Farm
Bargain
205 acres of dark loam soil, best
la the valley, 145 acres under cultl.
vatlon, 45 acres fine timber, balance
pasture, all farming implements, 5
horses, 7 milk cows, hogs, 100 chick
ens, all kinds of rigs. In fact, every,
thing goes; nearly all In crop, some
hay and grain In barn, good 8.room
house and barn; going East, must
sacrifice. The land alone Is worth
more than I ask for everything, stock
crop and implements. Price $100
per acre, Including everything.' See
my agents,.
BECHTETj & BYNON,
347 State Street
i Salem Fence Works
Headquarters for Woven Wire
Fencing, Hop Wire, Barb
Wire, Poultry Netting, Shin
gles, Malthoid Roofing, P, ft.
B. and Ready Roofing. Screen
Doors and Adjustable Window
Screens. All at the lowest
prices.
1 CHAS. D. MULLIGAN
250 Court street. Phone Ul
M FRENCH FEMALE
A PILLS.
i. 8n. CntTm Usurp fbr'9urriw MtnrKxrK.
MCVER KNOWN TO FAIL. Safct Srdy 1 8";
tVtion UutrftMeed or Money Hefunded. Sent JP4L
for 11.00 pr box. Will tend them on trial, to be ptld (dr
whin relieved. SunpleiKree. ir your drugiiitdirti art
bT them tend Tour orders to tbe
f NIT CO MtOICALCO.,Ol Uwercw. Pfc
Sold in Salem by Dr. S. C. Stoat
,Vitritrirt- 1
r
S5.
. Celebrated Lear
PnrBFO.
TIip IW Heater
It will save you Di-ey every day 7
mn it i coil at a natal1 the best.
Let me give you figures.
See Me
Afcout an individual lighting pi"
for your home. The best thing hi
the market for uwklng and lighting:
A. L. Frasier
rTO-NIGHT
1
I ft , .V
Vast-:
OWfSB.
Phone 135. Ute Btr