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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Aug. 1, 1911)
I DAILY CAPITAL JOntSAi, gALZM. ORECOS, TVESPAY. AUGUST 1. 1911. PACK TWO the capital journal H07ER, Manager E. UOfER, Editor ani ?ror rietor. R. M. Snirj iridr-i t Nil siptr traut to Anwrican Prin:lil and Of Pto,-M and Dn -I'jc-ax-nt of All Oregon rutUhu E ry Evening- Except Sunday. Or. SUBSCRIPTION RATES! (Invariably Id Advance) feaflr, by Carrier, pr year - .WI Pe? month- tajlr. br M:t. per rear 4 ) Pry month. tWkly, by Hail, par fear 1.00 Six axnthi FULL LEASED WIRE TElGRAPH REPORT OREGON SUPREME COURT DECISIONS Turner, Reporter ol the Full Text I'oMJ.hfd Lj Courtesy ol F. A. Supreme Court NOTICES WERE NOT POSTED AS LAW REQUIRES SITKEME COURT DECLARES 1JOMI ELECTION VOID OX THIS .tCCOCXT MAY OTHER LE- (i.tL tasoi.es str.vk;hte.ed OUT. Leadbettcr t. II. hi Icy, Multnomah County, I F. W. Leadbetter, appellant v. W. ; P. Hawley, respondent. Appeal from the circuit court for Multnomah county, lion. John n. Clcland, Judge. to enforce the contract. Xnae of these things, however, appear. On the contrary the plaintiff wlBhes to retrace hi steps and to he restored to what Is IiIh own Irrespective of whatever contract was attempted by Argued and submitted July 1!, 1911. 'the parties, or either of ttiem, wheth- H. M. Cake for appellant. (Cuke &;er legally or Illegally, t'nke on the brief). Warren K. A contract becomes executed when Thomas and John M. Oearln for re- all Is done that lis terms require to r.porrent. (Chamberlain, Thomas & lie performed. I'ntll that situation Kraemer and Iolph, NLillory. Sl.uonila attained the contract Is executory. & Oearln .on the brief). Ilurnett, Keverned. The substance of the complaint. In this action Is that about January 1, 1906, the plaintiff being a stockhold er In the Crown-Columbia Pulp & Paper Company and the owner of $G0,00 of Its bonds delivered them to the defendant, who claimed to be lso a stockholder In that company, on the agreement that tho defendant should retain the ownership of his utock and vote the same as directed by the plaintiff or would allow the plaintiff to voto It at all the stock holders' meeting of tho corporation for the protection of the Interest and holding of plaintiff In the corpora tion to all of which the defendant agreed; but that afterwards the plaintiff discovered that the defendant lld not own any stock In the com pany and by reason of his misrepre sentations on this subject had de ceived and defrauded the plaintiff. The complaint further alleges that the plaintiff has demanded the re turn of the bonds but that the de fendant refuses to return them ami How wrongfully and unlawfully wmuioiiiH possession or the same from the plaintiff within Multnomah county, Htate of Oregon, to the dam age of the plaintiff in the Bum of ltf.000. Tho prayer is for tho recov ery of tho possession of the property, or In case recovery can not be hnd for the value of the same In tho sum of IfiO.OOO with tho damages claimed. Tho defendant denies the alleged fraud and tho agreement narrated In the complaint under which plaintiff claims the bonds were delivered; ad mit tho delivery of the bonds but claims they wore a gift from the plaintiff to tho defendant. Tho re ply traverses the new matter In tho answer. At the close of nil the tes timony, on motion of the defendant, the court directed a verdict for him on tho ground that tho transaction et out In plaintiff's complaint was an Illegal contract, void as against public policy. From the consuiiuent Judgment the plaintiff appeals. Hurnett, J. Stripped of Its redun dant verbiage tho complaint sets out a cause of action in replevin In the detluet to recover the bgnds In question. Conceding, without decid ing, that the contract described In the complaint and tho testimony In support thereof was contrary to pub llo policy, the plaintiff s right to re cover depends upon two conditions: First, the action must not be for the enforcement of the Illegal agreement but rather In disaffirmance of it; and second, the contract must at the commencement of the action be yet In the executory stage. Whether we accept as a postulate the position of the plaintiff that he ws Induced by the fraud of the defendant to surren der possession of the bonds, or adopt the assumption of the defendant that the transaction detailed In the com plaint Is Illegal to the extent that the court will not Interfere with tho elstlng situation created by the par ties, this action proceeds In disaf firmance of the alleged contract. The plaintiff Is In court not In favor of his agreement but In spite of It; not to enforce It but to be relieved from IL If he. were seeking to com pel the defendant to vote his stock In a particular way or to enjoin him from voting or to recover damages for the result of his vote It might be said that the object of tho action ws The contract In question contemplat ed something to be done by the plain tiff, to-wlt: the delivery of the bonds. It also had In view something to be done by the defendant, viz.: voting bis stock as directed by plaintiff. As to the part to be performed by the defendant the contract la clearly ex ecutory for he makes no pretention , that he ever voted or was directed) bow to vote In pursuance of the i agreement. Tho defendant does not V. claim to have carried out his part of tno agreement In the least. The principle underlying such affairs Is that until the Illegal contract Is exe cuted the law will aid In the recov ery of the money paid or tho proper ty delivered In part performance of t.io illicit enterprise, but when It Is fully accomplished the courts will be closed to both parties and will leave Iiecauso the officials of the city of Mc.Mlnnvllle failed to comply with the city charter by posting three In stead of one notice calling an elec tion for the Issuance of municipal bonds amounting to $10,000 the su preme court this morning declared the election void. The suit was commenced In the circuit court by G. S. Wright and It was for the purpose of restraining the mayor and recorder from Issuing the bonds. The lower court dis missed the action, but th supreme court declined to sustain Its action. In writing the opinion Justice Moore says that while it may he true that legal voters can be Informed on a subject, through the newspapers that for all that the law must be complied with. Other PecMons. The Judgment of the lower court In the case of Annie P. Sullivan, ad ministratrix for the estate of Win. H. Sullivan, deceased, was reversed. The action was begun against Rob ert Wakefield and Win. Jacobson and It object was to recover damages for the death of Sullivan by a falling tree, It being alleged that death was brought about through the negli gence of the defendants. The plain tiffs won In the lower court. A rehearing was granted In the case of S.'W. Miles, appellant against llemenway, a suit from Lane X Skin of Beauty is a Joy Forever' DR. T. FELIX GOLRALD'S ORIENTAL CREAM OR MAGICAL BEAITIFIER .V' in rnct-r let . vprr b:it:tn n Ua.tr. n.d Je !) it-sectKri. It fct" 4 let tet if fti, h.nille! e tier.-it I' tnjs'irtit It r r triT m.v'e. Ac (t ti'.ct-ui.ur-Jr. i of uiLJar 1 t ame. Dr. L. A. f-ivr e:d to !r of the ba'Jt-i-ti v otiLt : "A yn ll:e wui c tatto I rfCoBomenfl tlnurnuA'm Crrmm' a the hirn.ful ft 1 th kin prt'l.irt.tium." Jr'.-r wle t-y ! driU nd J Mty- , Ooodi tfeiier id the Ui.il tU Sunt, Jw..la iud Eurupt. j fEJID. T. HOPKINS, Prop, 37 Grirf Jena Sited, KewToi ' Season's End Sale LACHMOR AM) PI RBIX (Continued from Page 1.) them without remedy. This doctrine . Cottage firove Is Illustrated In Willis v. Hoover, 9 Or. 41X; llernard v. Taylor, 23 Or. 410. Other decisions of this court Involving mutters of this kind and refusing relief are where tho plain tiffs sought to enforce tho illegal contract as In 1'noltlc Livestock com pany v. Ontry, 38 Or. 27S or where tho unlawful agreement, was fully executed as In Ah Doon v. Smith, 25 Or. 89. There Is testimony In tho record upon which the plaintiff was entitled to go to the Jury upon tho question of fraud alleged In his complaint. On tho defendant's theory of the con tract being ngalnst public policy, the county. The Judgment rendered by the low er court in the suit brought by Elmer Wallace against Mary E. McDaniel, an action Involving real property, and appealed from Multnomah county, wan modified. The Judgment. of the circuit court of Lone county was affirmed In the case of the First National Tlank of against the Hank of Cottage Grove. This was an appeal on a demurrer. The Judgment of the circuit court of Multnomah county In the case of Victor Land company against H. D. Winters, was reversed. The supreme court affirmed the Judgment of the circuit court of Multnomah county In the case of Klnley Morrison against L. S. Franck Willie the Judgement of the circuit court in the case of G. W. Peek ngalnst the Skelly Lumber company, a case from Douglas county, was re versed. II. T. McFeron. respondent, v. John Tlnvnna a. nl , ll rUnC!: "1 ,nfrr".U:nt b; nKJlKo. Petition for rehearing denied In disaffirmance of tho contract he had a right to bo heard before the Jury and take Its verdict. The Judg ment Is reversed. ANOTHER UPRISING Oil ISLAND (unitsd rica i.mssn wins Havana, August 1. General Ace vodo, votnran of a doien wars, took tho Held todny with 12 followers In an attempt to stir up a revolution. Troops have been sent In pursuit, as It Is foarod the movement may bo come dangerous, It allowed to con tinue unchecked. Before leaving Acevedo, who head ed an uprising In Plnar Dol Hio a ywir ago, issued a manifesto, do rtounclng tho administration of Pres ident (lomei. and adjuring all Cuban patriots to rise and overthrow the present government. Acevedo also threatened to lay the Island In ashes unless Gomes resigned within 15 days. The brain-using business man Is the profit-maker; since funning Is a business, the more brains the more profit. Enkin, In matter of estate of James W. Toting, deceased, appealed from Mutnomah county, II. J. Bean, Judge. on motion for rehearing, denied byl justice .Mciiride. victor Land Com pany, appellant, v. II. O, Winters, re spondent, appealed from Multnomah county, Win. Gatens. Judge. Re versed by Justice Mciiride. This Is suit In ejectment recover town property. X-RAYS AND SMILES. Making a living Is the necessary lounuiuion to make a life. If It never Valnetl until everybody was ready for It, there would be a long dry spell. AJax Major fired a spear at AJax Telamon lust night when Council man Durbln, dodged out from behind the mighty shield of AJnx Lach mund. No serious damage done. It la reported that Nat Goodwin Is to marry again, this time the victim Is Miss Marjorlo Moreland. Nat has a good bank roll and Is therefore good bnlt In the matrimonial jiond. Murjorle will be number 5. Tho weather clerk at Washington aya Oregon Is to have cool weather for a week. So it is well to arrange for an extra supply of Ice. The Sclo Condensed Milk companv pleaded guilty recently to violating the pure food law by selling con densed sklmemd milk, and yet skim med milk requires a great deal of con denslng before there 1b anything of it. urn a wnitewasn look. Throws )own Oaiintlet. When the resolution was Intro duced Durbln arose to speak In Its behalf and Mayor Lachmund, calling Councllmn Eldritlge to the chair, took a seat on the floor. Just as he was leaving the mayoralty chair, Durbin shouted "That is right; you are the man 1 am looking for" and from then the fight wis on and It was a battle royal. Shuts OiY Talk. Councilman Durbin had but barely jot started delivering the nice little speech he had been preparing for Ji s on the subject when some one moved to table the resolution and some on else seconded the motion. Durbln proceeded to continue his talk, but a point of order was raised on the ground the motion was not debatable, and Chairman Eldrldge ruled him out of order. "Is tho gag rule to be applied to me; am I not going to be given the privilege to talk?" shouted Durbin. " Chairman Eldridge advised him the motion ws not debatable but he Im mediately launched out again. The mayor raised the same point of order again and the chair ruled with him. Agin Durbln asked If lie was not going to get a chance to talk. "Not today but tomorrow," an swered the mayor. Nothing to Talk on ow. The motion was then put to a vote with Durbln still standing and pro testing against the gng rule. After It had carried he tried to continue his discourse and now he was con fronted with the rule that he was barred from talking because there was nothing before the house to talk j on. ! But whether he had a subject or not he seemingly wanted to talk, and the mayor again objected, saying "you are talking to the walls now; l there Is nothing before the house." Councilman Huckstein moved to grant Durbin the courtesy of the floor, but the mayor objected, and j finding himself worsted on all sides,' Durbln sat down, it was enough to make almost any one sit down. Then the Clash ('nine. The council went on with Its busi ness and Durbin sat silently by evi dently looking for an opportunity to break in on the proceedings with a bridge talk. The opportunity came when a mo tion was made that a committee be appointed to confer with the Salem, Kalis City & Western Railroad com- The Best Values are Always Here. Wc arc offering a Great Many Reductions in order to empty our shelves and clear the racks tor the largest Fall Stock we have ever carried. WE WANT YOU TO SEE THE EXTRA SPECIALS You know our regular values, consequently you are well aware that it is greatly to your interest to take advantage of the reduced prices. Men's Clothing 1-4 Less 20o Reduction On Mens Pants Children's Gauze Union Suits 19c each Wash Goods 1-4 Less Children's Cotton Dresses Greatly Reduced 75c Quality Silk 49c per yard Short Summer Kimonas 1-3 Less Long Gingham Petticoats 56c Each Good Quality Short Gingham Petticoats 29c Each Easily worth 45c Always in the Lead with Style and Quality Cotton Challies 5c per yd. Calicoes 5c per yd Ginghams 5c per yd REAL ESTATE TRANSFERS. pony reltiilve to the city co-operat-j ing with the company in building a1 Kodgers, D. G. and M to Little double decked bridge across the rlv- Thos. H., lots 10, 11, 12, West er. and be was on his feet In a mln-i oodburn Fruit. Farms, w d, $3750. ute ! Purvine, J. F. and M. S., to Tim- In a ceneral wav he onnosed the merman, u. t part blocK o, Koberta G., 5 acres and other lands In Au rora, w d, $2500. Barr, T. L, et al., to State of Ore gon, lots 3 and 4, block 2, Waldo ad dition to Salem, w d, $13,000. Tooz, C. T. and L. G., to O'Neil, E. S., w d, $5000. WILL Bl ILl) H.ULU0AD (Continued from Page 1.) Coast Range to Coos Bay by January 1, 11U4, at the latest. o The Oregonlan heads a dispatch, Truth Confounds the Enemies of Taft. Nothing strange about that for the truth about anything of a po . litlcal nature In America would con- . found any and every one. ' r I Life insurance ia iha anrt nf nrn. to addition to Salem, w d, $3000. Hofer, L. L., and R. C, to Jliller. 222.65 acres, t 4 s, r 1 w, q c d, motion and then be drifted back Hip mntlnn tlint timl lupn tnhlu,! The mayor called him to order, F: L'na nnilor I Tlmmerman, D. F. to Purvine, J. F west half lot 18, Capital Home add to Salem, w d, $10. saying the river bridge was under discussion and no other, but the chair ruled against him, and the mayor excepted. Durbln continued to roast to send hot shots at the council for enforcing the gag rule on him. Finally ho sat down and then Lachmund came to the bat. Mayor Airs Yocubulnry. "Councilman Durbln Is making a mountain out of a mole hill he likes "To hear the sound of his own voice," snarled the mayor. "The pleasures' of victory are mo mentary but the stings of defeat are everlasting. He Is a grandstand player and the talks of the council man from the silk-stocking sWqrd Is but hot air he Is a great big noise, that Is all; a darned good winner but1 a poor User." ; That settled It. The council ; passed the motion and the mayor ! named the committee and the coun-i cil went on with Its business. The clash between the two was the ! first that has occurred since they en- j tered.upon the duties of their respec tive oltlces and It certainly was a ' merry one for a beginner. Marks K. and J. C, to Miller. J. , tection that enables the father to car- jjrovide plans for construction work ry f.he load B.nd keep the children to. bids will be called for and contracts' gether after his hands drP- will be let. I -o Mr. O'Brien said yesterday that he expects the road will be completed in approximately two years. Trains . likely will be In operation over the' Chlldron Cry FOR FLETCHER'S C ASTO I A When the Clock Strikes Ten OMORKOW, WEDNESDAY, AUG. 2d, the big Mid-Summer Sacrifice Sale opens at POWERS' JEWELRY STORE, new Bligh Block. $12,000 Stock of highest grade jewelry will go on sale at cut-slash prices save 25 to 75 per cent. Shop early; get your pick of the choicest bargains. ' JEWELRY STORF Sec Window Display. New Bligh Block. Ooen Evening rf,.riff I mt, t ROSTEIN & GREENBAUM'S Mid-Summer Clearance Sale POWERS Men's Best Bib Overalls 75C Men's Blue Striped Bib Overalls 50c Men's Blue Striped Jackets soc Boy's Best Bib Overalls 45C Children's 50c Rompers .... 40c Children's 25c Rompers .... "Oc Nlen's Pink Mesh Underwear 23c Men's 60c Underwear 3oc CLOTHING Men's all wool suits, new stylea, neat tat- t,rn $10.00 Men's $10.00 Suit now 7,-5 Men's $7.50 Suits, now 5'on, SHOES Ladles' Oxfords, $3.00 values $175 Children's $1.75 Oxfords .'$100 Men's $3.50 Oxfords 75 Men's $3.50 Patent Leather Shoes , .$u?s These prices are to clean up lines of Shoes Reductions are also given in our regular stock. LACE CURTAINS $1.39 Lace Curtains, pair ?1-00 II.6.1 Lace Curtains, pair . . ?, 3 $2.00 Lace Curtains, pa.r ..WW ;;$,0 Lac Curtains, pair .. .. $X(.. Nice Corset Covers ..20c 39c Muslin Skirts ,,050 $1.00 Muslin Skirts 73c -uusiin sums $1.00j 0c Muslin Drawers 40e 75c Muslin Gowns , .oOcj Ladies' 1 0n Hloovioo t-. w.vv,vicoa lJS ura' Ladies 17c Sleeveless Vests Ladles' 25c Sleeveless Vests 19 j Apron Glngkams, per yard r Heavy all-silk fancy Ribbons, values to 65c yd . . . . Girls' $1.25 Middy Waists .... , ..8I.0I $1-50 and $1.25 Ladies' white Waist 1.0 Waists, values up to 75e . . . . . . .8!! 9-4 Bleached Sheeting, yard TOWELS 25c White Turkish Towels lj 23c Unbleached Turkish Towels ' l 10c Huck Towels , Heavy All-Linen Toweling ....81 Cotton Toweling, yard , 4 Turkey Red Table Cloth t - - a Xew Hats VI Ladies' 33c Gloves, pair 240246 North Commercial Street II