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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Oct. 5, 1911)
DAILY CATIT1L JOCBXAL. SALEM, CHEOPS, THVRSDAY, OCTOBER 3. 1011. PAGE rm JUST RECEIVED HANDSOME TAILORED COATS FOR MISSES AND WOMEN PRICES FROM $4.95 to $40.00 WOMEN'S SUITS FROM $8.50 to $50.00 $0& OREGON SUPREME COURT DECISIONS Full Text Published bj Courtesy of F. A. Turner, Reporter of the Supreme Court. Gardner t. Kinney, Multnomah County. C. L. Gardner, respondent, v. Mar shall J. Kiuney, appellant. Appeal from the circuit court for Multnomah sunty. The Hon. W. N. Gatens, judge. Argued and submitted Sep lember 12, 1911. 0. h. Matthews iDimiek k Morehead and T. J. Clee n, on brief) for respondent. E. B. Beekman, for appellant- McBrlde, J. pellant. McBrlde, J. Affirmed, con ditionally. Decided, September 26, 1911. The complaint alleges that on May t. 1908, defendant employed plaintiff to run a level and plot daji sites on Marble creek in British Columbia. Plaintiff was to complete tnis work by October 1, 1908, and then make a report, embodying the Information sought, and turn It over to defen dant; that plaintiff was to receive as compensation $5 per day from May 4,' Uf'8, until the work was completed, md the report was tendered to de Want, also all his necessary ex penses, with authority to employ as sistants, if necessary, to carry on the ork, defendant agreeing to pay plaintiff a sum equal to' the expenses incurred for these purposes, and to advance him money to meet such ex penses as plaintiff might require; Jat he continued in the employ of Wendant for 129 days or until the Mi of September, 1908, when he had wished the work; that on September " ne was directed by defendant to "main on the ground for further in fractions; that he remained until January 4, 1910, when he returned to Portland, and tendered to defendant complete report of his labor and jenses; that under the terms of the jwtraet he was entitled to recover fom defendant $1150 for labor; for "leases, includine livine exDenses money paid out for labor, and "'I. It), flit rif whnh afenant nnTTl kfd and agreed to pay and upon JH'ch he has only paid $550, leaving 'M the sum of $1171.75. Defendant answered, pleading the wwal issues as to the whole com plaint, except as specifically admit J. and set up the contract in the wowing terms: "That on or about 2nd day of July, 1908, at Port j.. Oregon, the defendant, induced ' and relying upon the representa '5s of the plaintiff that he was a Solent aad skilled surveyor and civil engineer, employed the plaintiff in his said capacity of surveyor and civil engineer, to run a level from Marble Cove, on Quatslno Sound, Vancouver Island, B. C, up Marble C"reek to Alice Lakes, a distance of about five miles, to ascertain the fall of Bald stream, and establish the points thereon suitable for dams, within a reasonable time, with in- structions to enter an accoun: of his work, including his field notes of survey, and expenses daily, in a jour- , nal kept by him for that purpose, and to make profiles showing the fall of j said stream and cross sections at points suitable for dams, and to for ward copies of the entries in such i Journal, together with such profiles, from time to time, and by each week ly mail, to the defendant at Port land, Oregon, and to complete said work as a competent and skillful surveyor and civil engineer should, and as soon as possible under the circumstances, and in consideration of such service, then and there prom ised and agreed to advance in plain tiff from time to time such sums of money as he might require to defray his necessary expenses while en gaged in said Vork, and upon the completion thereof and receipt of a final satisfactory report to pay him for such services at the rate of five ($5.00) dollars per day for the time necessarily occupied by him in going to and completing said work r.nd re turning from and reporting the same." There was also a counter-claim against plaintiff fcV the negligent manner in which he performed the work and for failure to make his re port as required by the alleged con tract. Upon the trial plaintiff testified, among other things, that the contract was made on May 4, 1908, but that there was no time set for his depart ure to Marble creek, although he un derstood it was to be within a day or two; that defendant delayed sending him until July 1, 1908; that in a con versation with Kinney, about this de lay, Kinney said, "Of course, you know I am paying demurrage on this," and objected to his going away on other employment, but finally con sented to his going to southern Ore gon for two weeks; that he employed one Johnston at $3 per day to assist him and agreed personally to pay him; that the other expenses for boat hire and provisions were purchased upon his credit, Kinney not being known there; that Johnston's bill amounted to $210, of which plaintiff has paid $36, leaving $183 still due; i that he paid $284 for groceries and incidentals and became personallv ; liable for $68.75 for boat hire, of which he has paid $12.. Johnston testified that he contracted person ally with plaintiff, and did not look to Kinney for his pay. Other facts appear in the opinion. McBrlde, J. The testimony in the case is conflicting, and while the court might be inclined to form a vastly different conclusion from that arrived at by the Jury, yet, so far as there is any testimony to sustain it, we are bound by their verdict as to matters within the issues made bv the pleadings. Plaintiffs origina'l contract as he states, it, was to go to Marble creek and run his levels and return and make his report. He tes tifies that, when the leveling was done, defendant directed him to re main there on the ground and that he did so. pursuant to directions. Tak ing this testimony as true, as we are compelled to do after verdict, nnd there being no new hiring or sugges tion of a different employment at lower wages, we must assume that both were acting under the assump tion that the directions given were pursuant to the original contract, es pecially as plaintiff had not returned or made his report. Plaintiff had au thority to employ assistance and whether he abused that authority or employed help unnecessarily was a question of fact for the jury. John ston's testimony on this trial would estop him from claiming anything from defendant in another suit, and upon his statement of the case he would have a good cause of action against plaintiff. "The principal cannot be held lia ble where the other party, with full knowledge as to who was the princi pal, and with the power of choosing between him and the agent, has dis tinctly and unquestionably elected to treat the agent alone as the party liable." Mecham on Agencv, Sec. 696. It was competent for plaintiff to contract in his own name for the hire of the boat and not having pledged defendant's credit, we see no good reason why he should not recover. The court erred in submitting to the jury the claim for 57 days' delay It was not within the terms of the contract, as stated, nor as testified to by plaintiff- His compensation upon the contract, as he states it, was to i begin when he should start to Mar-1 ble creek. If Kinney agreed to com- j pensate him for delay, this would ' constitute a new and separate con tract. It could not be "demurrage" in a technical sense, because that is a term applied to compensation pro vided in a marine contract for the detention of a vessel. Taking the word in the sense the parties proba bly meant, it would only mean a rea sonable compensation for the delay, and the amount of such compensa tion would be a subject for pleading and proof. If, indeed, as stated, it could give rise to any cause of .ac tion whatever. But as the amount erroneously allowed upon this item is certain, we can require it to be re mitted and affirm the judgment as to the balance of the claim: Maekey v. Olssen, 12 Or. 429; Fiore v. Ladd. 29 Or. 52S; Cochran v. Baker, 34 Or. rr(r( It will be ordered, therefore, that if plaintiff shall, within 30 days, ex pressly remit the Bum of $2S5 from the amount found due in the circuit court, the judgment will be affirmed as to the residue, but that, failing to do this, the judgment will be re versed. As defendant has been put to the trouble and expense of an ap peal, he will recover his costi in this court In any event. Stops a Deep-Seated Cough in a Horry A Family Supply of Un.qu.l.d Cough R.medy for 50o Mon.y R fund.d If It Fails. GRAND JURY INVESTIGATING j "THAT BAD CLUB"! Cough medicines, aa a nile, contain a buy proportion of plain ayrerp good in. gradient, but one that anyone can tnu'io. A pint of pranulntcxl mignr, with i pint of warm water, stirred for 8 minutes, gives yon aa good syrup aa Money can buy. A 60-cent bottle of Pinex, mixed In c pint bottle with home-made aupar syrup, give you a full pint of really better cough syrup than you could boy ready-mixed for 12.60. There's a cler saving of (3.00. Full directions in package. And money oouldn't buy a quicker, better remeuy. Takes hold, at once, gives almost instant relief, and usually stops the most obstinate, deep-seated cough In W hours. It stimulate the appetite, Is siightly laxative and has a pleasant taste children take It willingly. Splendid for throat trouble, and nnequaled for prompt t Jury. because an injunction rusmiH iii wnooping conga. Pinex Is a special and highly concen trated compound of iiiiport.il Norway White Pine extraot, and Is rich in gualacol and other natural healing pine elements. Simply mix it as directed with sn ear syrup or strained honev, and it Is mulv for use. Used in more homos In the tj. S. and Canada than any other cough remedy. Whether the circuit court has Jur- : Isdiction with relation to the said of j liquor by the Bachelors' club, of Woodburn, Is the question which is j puzzling the present grand Jury i making an investigation of the sub- ject, and when it marches Into the court room tomorrow afternoon and submits a report covering its lnvee- I tigatlons concerning the club It will put the question up to Judge Kelly for solution. I Inferior Court Enjoined. j The prohibition element is seeking ' to indict the officers of the Bache lors club before the present grand is now in force against any criminal pro ceedings being taken against the club, under certain ordinances. In the municipal court. After the club had been raided, and its members arrested, it brought a suit in the cir cuit court biofore Judge Galloway to have the ordinance under which the Stops Falling Hair and Destroys Dandruff Makes the Hair Grow Long, Heavy and Luxuriant and We Can ' Quickly Prove It If You Wish to Double the Beauty of YouMlair at Once, Just Get a 25 Cent Bottle and Try This Pinex has Often been Imitated, but never nrncpolnn ttnro rnlron nnnnlla1 onrl anp.neeuf n I)f f,,e nnr hind aIua vl 1 1 ,ieruli,. .... . . . tne mime results, vine genuine is guaran teed to give absolute satisfaction or money refunded. Certificate of jruanintee is wrapped In each package, 'i our druggist has Pinex or will get it for you. If not, send to The Pinex Co., Fort Wayne, Ind. Surely try a Dandcrine Hair Cleanse if you wish to immediately double the beauty of your hair with little trouble and at a cost not worth mentioning just moisten a cloth with a little Damlerine and draw it carefully through your hair, taking one mall strand at a time, thii will cleanse the hair of dust, dirt or any excessive oil In a few moments you will be amazed. Your hair will be wavy, fluffy and abundant and possess an incomparable softness, lustre and luxuriance, the beauty and shimmer of true hair health. Besides bnutifving the hair, one application of the Judge declared them invalid, and . , d the Ka, forever issued an Injunction against any one ,tonni ' an . ,. ... COSFIDEXCE. We Hack l" Our Statements Willi Our Personal Reputation ami Money. We are so positive that we can re lieve constlpatir, no matter how chronic it may be, that we offer to furnish the medicine free of all cost if we fail. e inula mat ll la wuiae mail i . . ... useless to attempt to cure constipa- i offense when cornittod within tion with cathartic drugs. Cathartics may do much harm. They may cause a reaction, irritate and weaken the bowels, and make constipation more chronic. Constipation is often accompanied and may be caused by weakness of the nerves and muscles of the large Intestine or colon. To expect a cure you must therefore tone up and strengthen those parts and restore them to healthier activity. The discovery of the active princi ple of our remedy involved the labor of skilful research chemists. This remedy produces, results such as are expected from the best of the best known intestinal tonics, and it is particularly prompt in its results. We want, you to try Rexall Order lies on our guarantee. They are ex ceedingly pleasant to take and are Ideal for children. They apparently act directly on the nerves and mus cles of the bowels, having, it would seem, a neutral action on other or gans or glands. They do not purge or cause inconvenience. If they do not positively cure chronic or habit- proceedings against the club under them. The case Is now on appeal to the supreme court, and, pending a decision the "prohibition element is powerless to put the municipal i court In motion against the club. Renews Avar in Circuit Court. Determined, however, to put a stop to the selling of liquor by the club the element has renewed Us war In the shnpe of grand jury proceed ings, and 16 or more witnesses were summoned before that body to tes tify that the club was selling liquor without a license. Then the ques tion as to whether th circuit court could exercise Jurisdiction over the the limits of an Incorporated city .bobbed up, and It has been decided to sub mit the facts Pound in the lnvestlga- Damlerine is to the hair what fresh showers of rain and sunshine are to vegetation. It goes right to the roots, invigorates and strengthens them. It's exhilarating, stimulating, and life-producing proper ties cause the hair to grow abundantly long, strong and beautiful. It at once imparts a sparkling bril liancy and velvety softness to the hair, and a few weeks' use will cause new hair to sprout all over the scalp. Use it every day for a short time, after which two or three times a week will be sufficient to complete whatever growth 1 ou desire. You can surely have pretty, soft, lustrous hair, and lots of it, if you will just get a 25 cent bottle of Knowlton's Dandcrine from any drug store or toilet counter and try it as directed. (". I t.v 0 7 7 ViV";jJ an interpretation of the law, ,t.n l..J. Unl.l lilt JUOftc until llini. me vntuii court nns jurisdiction, it is preaioea that Indictments against officers of the club will be retvV"ne,d.. War Itegiin Last Spring. The war on the club by the pro hibition element of Woodburn be gan last spring, and since then it has been waged in the courts, and once ! found Its way into the governor's of fice. The governor was asked to dis solve the charter of the club on the ground that it did not specify that one of its purposes was to sell liquor It being maintained that this was such a concealment of a material fact as comitltutpd fraud. Pursuant to the governor's direction District Attorney McNary inaugurated in the circuit court such proceedings, and Judgp Galloway held against his contention. This suit is also on ap peal before the supreme court. Other Indictments. "When the Jury makes its report Here is a woman who speaku from personal knovledge nnd long exper ience, viz., Mrs. P. II. Lirognn, of Wilson, Pa., who says, "I know from Should ! experience that Chamberlain's Cough circuit Remedy Is fnr superior to any other. For crouji there is nothing that ex cels it." For sale by all dealers. UPRISING OF MONARCHISTS IN PORTUGAL united raws leasep Madrid, Oct. 6 The monarchist uprising Is rapidly today, according received here. Prince Ttnu.l Portugese extending to advices Josoph, of ual constipation and thus relieve the j tomorrow morning on the Bachelor myriads of associate or dependent chronic ailments, your money will be refunded. Try Rexall Orderlies at our risk. Three sizes of packages, 10c, 25c, and 50c. Remember, you can obtain Rexall Remedies in this community only at our store The Rexall Store. J. C. Perry, Druggist. o CAPITAL GARAGE VI CK BROS., Proprietors. Pull line of Automobile Soppliei, Oils and Gasolene. Autos for f hire, storage and repairing. All work guaranteed. Agents for 4 LOCOMOBILE, OHIO. HUDSON, .OAKLAND, .ELM ORB .AND FORD AUTOMOBILES AND KELLY TRUCKS. I "12 cars now In. Call and see them. Phone Main 783. 173 i South LlbertT street. MM . MM CHILDREN BEG FOR BREAD. If they know It comes from this bak ery. It la as different from the or dinary dry, tasteless kind as day is from night If yon want your chil dren healthy girt them plenty of bread. They'll eat it all Hght if It comes from here. Why not try It? CAPITAL BAKERY 439 Court St. Phone 904 Foster v. llyers, flitrkiinm County. Anna Foster, appellant, v. Hattie Myers, respondent, in the matter of the petition for the custody of Lor eta Hoag. Appeal from the circuit court for Clackamas county. The Hon. J. U. Campbell, judge. Argued and submitted September 14. 1911. William M. LaForce and (John H. Stevenson on brief) for appellant. Joseph E. Hedges, for respondent. McBrlde, J. Affirmed. Decided September 26, 1911. Loreta Hoag. having been aban doned by appellant, her mother, who was unable to care for her, was, upon the petition of respondent, duly adjudged by the county court of Clackamas county, sitting as judge of the Juvenile court, to be an aban doned child, having committed to the custody of respondent. Subsequent ly appellant, having re-married, ap plied to the Judge of the county court to have the custody of the child given to her, which application was denied. She appealed from this order to the circuit court where a motion was made to dismiss her ap peal for the reason that no such remedy is provided in the statute from the decision of the Juvenile court. McBrlde, J. In our opinion chap ter 34 of the laws of 1907 (L. O. L. Sees. 4406 to 4424 inclusive), provid ing for the creation of Juvenile courts and prescribing the practice therein, is, In bo far as It relates to those subjects, complete in Itself and the general statutes relating to ap peals from the county courts have application- Section 18 declares that "This act shall be liberally con strued to the end that Its purpose may be carried out; to-wit: that the care, custody and discipline of a child shall approximate, as near as may be, that which should be given by its parents." This purpose would be, to a great extent, frustrated if the orders of the court in relation to such care and custody could be in terfered with, and delayed by appeals by persons claiming to be interested. No right of appeal having been pro vided by the act, none exists as to this proceeding. Appellant, having defaulted in the original proceedings taken to declare the child dependent and abandoned, ceased to havie any Tight to Its cus tody and thereafter her legal rights In regard. to It were no greater than those of any other person who might ask the court for leave to take the child and care for It. The Judgment of the circuit court Is affirmed. o The money that a woman spends Is never for the bonnet. But always for the fancy things The milliner pats on it. Bynon Bechtel & Bargains BEAiriFIX HOME $0700 We are instructed by the owner to sell a beautiful 7-room home, modern fn every respect, located on a lot 105x123 feet on a double clean cor ner of two paved streets, two blocks from the state house; the lot is cov ered with majestic trees and hand some shrubbery. The house has sev en large rooms, a bath, pantry, toi let, furnace electric lights, ks, hot and cold water and in fact all the lit tle things that go to make up a com fortable home. This place Is one of the finest In Salem and must be Been to be appre ciated. Cozy Modern Cottage Five room modern cottage In fine location one block of paved street, east of state house on Chemeketa street. Only $350 down, balance same as rent Cheap Lots We have a number of cheap lots on the easy payment plan. Some as low as $5 down and V per month. 15 Acre Snap To make a quick sale the owner of 15 acres located near the fair grounds has authorized us to sell this fine place for $175 per acre. . Very best of dark deep soil just right for berries, fruit or vegetables. Hop Land 250 acres of rich bottom land well improved for only $95 per acre, This is worth twice the price asked, owing to Its richness. club matter it will also report upon a number of other cases, and, while a number of Indictments will be re turned, they will be of a minor char acter. o Saved His Mother's tiff. "Four doctors had given me up," writes Mrs. Laura Gaines, of Avoca, j La., "and my children and all my i friends were looking for me to die, when my son Insisted that I use ! Electric Bitters. I did so, and they have done me a world of good. I will always praise them." Electric Bitters is a priceless blessing to wo men with fainting and dizzy spells, ; backache, headache, weakness, debit- j Ity, constipation or kidney disorders, j Use them and gain new health, I strength and vigor. They're guaran- j teed to satisfy or money refunded. Only 50 cents at J. C. Perry's. o Sick heudache Is caused by a (lis- i ordered stomach. Take Chamber lain's Tablets and correct that and the headaches will disappear. For sale by all dealers. Braganza, and other leaders, are heading an army of 40,000, armed with quick-firing guns, which Is ad vancing toward Oporto, with a view to proclaiming it the Portugese cap ital. King Manual 1b expected in Portugal shortly from England. Secretary Vradlo has already left London, en route to the Portugese frontier. Every dog has hlu day, and too many of them have their nights also. The blacksmith may be an expert forger without being arrested for it. "Just Say" HORLIC.CS It Mians Original and Ginulna MALTED MILK Tht Food-drink (or All Agis. More healthful than Tea of Coffee. Agrees with the weakest digestion. Delicious, invigorating and nutritious. Rich milk, malted' grain, powder form. A qoick lunch prepared in a minute. Take no substitute. Ask for HORLICK'S. ET Others are imitations. 36 Acres 96 acres ail under cultivation 45 acres set to prune trees. Team, Im plements, bay go with the place Modern 8 room bouse, barn, wind mill, good water, place well fenced. A real bargain. BECHTEL k BYXOX 347 State St. Tel. Muln 452. Xeyer Out of Wert. The busiest little things ever made are Dr. King's New Life Pills. Every pill is a sugar-coated globule of health, that changes weakness into strength, languor into energy, brain fag into mental power; curing con stipation, headache, chills, dyspepsia, malaria. Only 20 cents at J. C. Per ry's drug store. o CH lldrr Cry FOR FLETCHER'S C ASTORI A Bmtrj Mint I g l,'iiim.i m t Aufe sad impleremedyfof f rr I BnmckMt, CtJmrrk, Hat fmrU I InAMntnAtiooa, Irritation, vimt. I V Atlooiof ALLmaocm.maitrQea I amBS I or llolosv of th bom, Uir oat, 1 1 I ttOBftofa off srlaMj orsus, I 0M r OSUOOISTS SI I'CfcJll tVk, totnnyrulf rmm -- TraMla with Mdi botiu I TU Imm (Wal C. 1 DuM-hlns rarnrd tlSS.V) In M wffki, lsr) 1 machine ximrd .17 013 In 19 wrrka, 1UOJ 1 miM-hlne rarnrd l.f; la 15 11KX 1 machine corned .11,017 la 17 wccki, 11107 1 machine rarard ti.Mi la 27 week.. llrUS 1 aiafhine earned SlitSU la IS week, lleW 1 machine earned fltfitl la ts week, 1111 Above fitnret will be verified to proipectlea cuitotners. Write lor catalogue sad price, to C. W. PARKER Ua.aw.rtl. Kaa SALEM BANK & TRUST CO. GEN EH A I, HAN KINO AM) liaST BUSINESS With our assurance thut we are able and willing to take care of It, we solicit your Bunking Business. Open an account with us, and we will extenu you every favor con sistent with good banking prin ciples. WE PAY FOCIl PER CENT o: SAVINGS Liberty Street, Jut off State J. L. AHLERs, President, W. O. EAST, Cashier. S. S. EAST. Vlce-Pres. DR. L. B. FTEEVES, u. H. ROBERTS, Directors. Nature's Tonic In the pleaBlng form of a de licious, enticing and invigor ating beverage, bottled direct from the springs in the Cala pooya mountains. r Calapooya Mineral Water Drink It to Get Well; Drink It to Keep Well. A murated saline water, equal to any of the ren wned spring waters of Europe and America. Recommended by leading phy sicians of the United States for Rheumatism, Kidney and Liver affections, Dyspepsia, In digestion, and all forms of Stomach, Skin and Blood dis eases. Hundreds of people "given up"' by physicians have boon cured of long-standing ailments by Calnpooya Water, Testimonials on application. Sold by all dealers or shipped In cases direct from the springs Write for price. Calapooya Saline The condensed smllo of Cala pooya Water. Stomach, liver, kidney and blood disorders speedily cured by its use. All dealers, or sold direct. Hotel Calapooya Open all the year. Famous health resort in the Calapooya mountains, 12 miles from Cottage Grove (on South ern Pacific). Splendid accom modations, reasonable rates. Steam, mud and hot water baths and cooling rooms. In formation as to rates, etc., wlll be furnished upon request. Calapooya Springs Co: COTTTAGE GROVE, ORE. The New and the Old Way . HAVE YOU EVER COMPARED OUR WAY OP HANDLINQ PICKLES, MINCE MEAT, BAUER KRAUT, CJIOW CHOW AND THE LIKE, WITH OTHER STORES? Our Sanitary Jars should appeal to every lady of the house as to their cleanliness In handling foods that are most always found exposed to the dust and contamination of dirty fin gore. Our store Is fitted out with every modern Banltary contraption from a cooling refrigerator down to a hickory spoon. WE INVITE VOL TO INSPECT Til If I.KPAHT.MENT. Home-made Mince Meat, IT) 15c Heinz Midget Pickles, pint 25c Hulnz Dill Pickles, doz..20c Ripe Olives, pint ,. . . . . . . .25c Heinz Cho Chow, pt . ... Heinz Swtet Pickles, pt . . Large stuffed Dills, each. Queen Large Olives, pt . All these Rellt-hes and Foods are kept In glass covered Jars, ,15c ,15c ,10 ,30c on We forced the price on Pic Nic Hams down. 100 sale today ,12 1-2 cents- 50 Supreme Hams today 20c, 1000 pounds medium heavy bacon .today 18c. "Trade at the live store" We can deliver the goods. Roth Grocery Co. STATE STREET