DAILY CAPITAL JOCRVU SALEM, OREGOX, MOXDAT, OCTOBER 19, 1011.
FACT THREE!
OREGON SUPREME COURT DECISIONS
Fill Text PmblUhed bj Coirtesy t F. A. Turner, Reporter of the
8npreme Coirt
Cannon t. Mllner, Multnomah
County.
Decided October 3, 1911.
M. P. Cannon, appellant, v. Alice E.
Mllner, respondent. Appeal from the
circuit court for Multnomah county.
Hon. John B. Cleland, judge. Ar
gued and submitted September .20.
1911- Harry Yanckwlch and R.
Sleight for appellant. Flegel & Rey
nolds and John F. Logan for respond
ent. Moore, J. Affirmed.
This Is a suit to rescind a contract,
the execution of which is alleged to
have been induced by fraud; to en
join the prosecution of any action
based on the terms of the agreement;
to direct a reimbursement of the
money paid on account thereof and to
recover damages. The facta are that
on September 27, 19D9, the plaintiff,
M. P. Cannon entered into a contract
with the defendant, Alice E. Mllner,
who then kept a lodging house in
Portland, stipulating that in consid
eration of the payment of $3,000, of
which sum $1,300 was received, she
would sell and transfer to him an
undivided half of all the furniture,
etc, in the house, attaching an in
ventory thereof to the writing, and
also to assign to him an undivided
half interest in a lease of the prem
ises. The remainder of the purchase
price was to be paid In installments
of $100 each, commencing October 1,
1909, and maturing monthly thereaf
ter, and upon payment of the entire
sum the defendant would perform
her part of the agreement, but prior
to the discharge of the debt, she was
to retain the title and estate as se
curity for such payment. The par
ties were jointly to conduct the busi
ness in which the defendant had been
engaged each contributing one-half
of the expenses incident fhereto and
receiving monthly an equal share of
the net profits, and faithfully to labor
to promote the enterprise, but neither
was to receive any compensation
therefore except such avails. The
contract contained a clause as fol
lows: "Cannon hereby agrees to fur
nish a surety company bond In the
sum of two thousand dollars ($2,
000.00) for the payment by him of
his portion of the rent of the said
premises, or to furnish other satis
factory security therefor, and this
agreement shall not be effective un
til such security has been provided."
Pursuant to the contract, plaintiff
on October 1, 1909, paid $100. the first
installment of the remainder of the
purchase price and at the same time
also advanced $225 on account of
rent of the buildlne for that month.
The money received from the busi
ness for October, 1909, was $966.11,
from which was paid $774.20, as the
expenses of conducting the house,
leaving $191.91, to one-half of which,
or $95.95 plaintiff was entitled.
This suit was thereafter instituted,
the plaintiff alleging in effect that
the defendant, for the purpose of in
ducing him to enter into the agree
ment, falsely and fraudulently rep-
resented to him that she had an ab-
the remainder, after paying all dis
bursements, was only $191.91, Mrs.
Mllner denied that she made such
representations, saying that she In
formed plaintiff that no books had
been kept wherein were noted the re
ceipts or payments, but that all dis
bursements were evidenced by
checks drawn on a bank, the stubs
of which were retained; that in order
solute right to transfer an undivided t0 dlsclose the "penses 'tne. D"sl-
half interest in and to the leasehold ness 8he showed tnese 8tubs to hlu!
estate In the premises of which she and ne exatulned them for 8everal
was the sole owner; that she was hours- . .
lawfully empowered to assign her In-1 Mr8' IsabeU Kra8ner andher4 8,.V
terest or to sublet the same or any ter- chrissle Browtt- severally testl-
part thereof: that for the purpose of fled that Mrs' Mlln.er "presented to
further persuading plaintiff to ac- her that the n( lncome fr01? th,6.
cede to the terms of the contract the house wa8 30 a nl0?,th- "
defendant falsely and fraudulently the testlmo, tnese w'tne88e8
represented tn hlm ,w .h-iX could be considered as corroborative
ATTENTION
LAWYERS
We publish legal notices aa
required by law, furnishing
affidavit and proof of pub.
llcatlon.
Fine Brief Work
Is our specialty. Let m
figure with you on your next
case.
Capital Journal
SALEM, OREGON
gross receipts from the building, for
some time prior, had been above $900
while the net income was $400; that
relying upon such representations!
and having no means of ascertaining
their falsify, plaintiff became a party
to the contract, in complying with the j
terms of which he paid out $1625 as
hereinbefore stated and also the sum
of $300 for additional furniture for
the building; that defendant had no
right to assign the lease without first
obtaining the written consent of the
lessors which she never secured nor
was she the sole owner of the lease;
that the net earnings of the business
were not as she reprsented and did
not exceed $200 a month as she well
knew; that plaintiff, relying on such
representations, performed labor and
services at the building to the value
of $700 and was otherwise damaged
in the sum of $2,000; that unless re
strained defendant will commence
actions to recover the monthly in
stallments of $100 each as they sev
erally mature; and that plaintiff has
no plain speedy or adequate remedy
at law.
The answer denies the material
averments of th complaint and by
way of cross bill alleges that at all
times Btated therein the defendant
was the sole owner of all the furni
ture mentioned and the beneficial
owner and holder of (lie lease and at
all times had been id then was able,
ready and willing to keep her part of
the contract upon performance of the
other part by plaintiff; that he has
never furnished any bond as re
quired, and that defendant has fully
complied with all the terms of the
greement assumed by her. The
equitable Hen on the personal prop
erty is then set forth and a strict
foreclosure thereof sought
The reply having put In Issue the
allegations of new matter In the an
swer, the cause was tried, resulting
in a decree as prayed for in the an
swer and plaintiff appeals.
Moore, J. The lease under which
the defendant retained possession of
the building was executed by Leo.
Friede and N. D. Simon, the owners
of the premises, to T. J. Mllner and
his wife, the defendant herein, where
by the lessees were to retain the
property for a term of four years
from December 1, 1906, upon pay
ment on the first of each month of
$350 for the first and second years
and $400 a month for the third and
fourth years. An option was grant
ed to continue the term for another
year -at $450 a month. The demise
stipulated that the lease should not
be assigned and the lessees cove
nanted to" execute a mortgage upon
certain real property which they
owned In Multnomah County as se
curity for the payment of the rent
reserved.
In the contract executed by plain
tiff it is stated that the lease of the
premises was then owned by the de
fendant. The attorney who prepared
i the contract for execution testified
that without being informed in rela
tion to the matter and supposing that
Mrs. Mllner was the sole lessee of
the premises he made a written
statement to that effect in the agree
ment. This declaration? was not In
tentionally false and plaintiff did not
sustain any damage by reason there
of, for the testimony shows that
though the lease prohibited an as
signment of any interest therein, the
lessors were at all times ready and
willing to consent to a transfer to
him of the defendant's estate or any
part thereof when he furnished a
satisfactory undertaking, as agreed
upon, that he would pay the rent as
It matured, which bond he never ob
tained. The plaintiff testified that Mrs.
Mllner represented to him, when he
was negotiating with her .for an In
terest in the property, that the net
proceeds of the business was $300 or
$400 a month. When the first month
ly statement rendered showed that
of plaintiff's sworn declarations,
their affirmations are rendered value
less by evidence of the plaintiff's In
fluence over them and by their ap
parent interest in his affairs, without
further commenting upon their tes
timony or adverting to the motives
that seemed to prompt it, we are sat
isfied that In this case their evidence
Is unworthy of belief.
When plaintiff, as a witness, was
cross examined, the foundation for
impeaching testimony was properly
laid and he thereupon dented that he
made the statements Imputed to him.
To contradict his testimony In this
particular, A. F. Flegel, who pre
pared the contract in question, testi
fied that while the parties were ne
gotiating the plaintiff called upon
him, saying: "I talked with Mr. Can
non about the details of the agree
ment and I got practically all of the
information from him from which
the agreement was drawn. I remem
ber very particularly about talking
to him about the profits that could
be made from running the house and
Mr. Cannot said that Mrs. Mllner
was not making anything out of the
place; that she was not running It
right and didn't know how to run It;
and he would make a good thing out
of it he was satisfied, and It was
good property."
It will be seen that Flegel's sworn
declarations do not fix the sum of
money which Cannon regarded as a
sufficient monthly income to be de
rived from a careful management of
the business. The plaintiff may have
thought that $300 a month was not
adequate. Though such conclusion
Is possible, we believe a general view
of the whole testimony of the plain
tiff and his witnesses does not carry
that degree of conviction that the
testimony of the defendant and her
witnesses affords.
It appears that Cannon paid $2o
more than his share of the rent due
for October, 1909. Some controversy
exists as to whether or not such ex
cess was given In lieu of furnishing
the bond required. However this
may be, it is unimportant, for the
payment having been made after the
contract was executed cannot Invali
date the original agreement. That
payment was a proper matter to be
considered and the trial court de
creed a credit therefor In case the
plaintiff paid the remainder of the
purchase price, his share of the rent
and of the expenses within the time
limited.
We conclude the decree was cor
rect, but since Its enforcement has
been delayed by the appeal, the plain
tiff will be allowed 30 days after the
decree herein becomes finpJ, to com-
dIv with the terms Imposed, and if
he tenders Into court the remainder
of the purchase price and interest,
one-half of the monthly rent and In
terest thereon and also the compen
sation of a person who would have
performed the service, he could
have rendered and was required to
furnish, he will be entitled to an ac
counting as a partner In the business
and become the owner of an undi
vided half of the personal property
involved- including an assignment of
an interest in the lease. In case he
does not make such tender within
the time prescribed, the defendant's
equitable Hen upon such property
will be strictly foreclosed and plain
tiff will be barred of all right, title
or interest therein or thereto.
It follows that the decree should
be affirmed and It Is so ordered
o
Lady. Baltimore Cake
The Host Popular Cake This Saasoa
By Mrs. Janet McKenzU Nil!, Editor of
tht Boston Cooking School Magazine
This Is considered by many cooking
authorities the finest cake that can be
made, though In reality it is not at all
difficult.
K C LaJy Baltiaora Cake
One cup butler; 2 cups granulated
sugar; 1 cup milk; I teaspoonful rose
iraxr; 3 cups jlour; J level teaspoon
fuls A" C Baking fbwder; uhites of 6
&x beaten dry.
Cream the butter and beat In the sugar
gradually. Sift together, three times,
the floor and baking powder, and add
to the butter and sugar, alternately with
the milk and rose water. Lastly, add
the egg whites. Bake In three-layer cake
pans. Put the layers together with the
following frosting.
Noti The cake U a lr one and tell at
Women'! Kxchaue for il JO.
32
Frostlas'forLadjr Balllmora Caka
Thrtt enps granulated sugar: cup boiliug
ratfr:trkites of J fggl: I cut chopped raisini: I
cup chopped nut-mtatt; Sjtgi cut in thin tlitti.
Stir the sugar and water nntil the
sugar is dissolved, then let boil without
stirring nntil the syrup from a spoon
will spin a long thread; pour upon the
whites of the eggs, beaten dry, beating
constantly meanwhile. Continue the
beating nntil the frosting is cold; add
the fruit and spread upon the cake.
The K C Cook's Book contains ninety Just
such delicious recipes, brciul, muffins, enkes
and pastry. You can secure n copy? by send.
Ins the certificnte packed in every 25-cent om
of KC Bukinff Powder to the Jaui'ks Mvn. Co.,
Chicniro. Stunll cuus do uot couUiia Cook's
Book certl6cates.
CAX YOU ASK MORE.
Tour Money Back for the Asking.
You Promise 'utlilng.
We are so confident that we can
furnish relief for Indigestion and
dyspepsia that we promise to supply
the medicine free of all cost to every
one who uses It according to direc
tions who is not perfectly satisfied
with the results. We exact no prom
ises and put no one under any obli
gation whatever. Surely nothing
could be fairer. We are located right
here where you live, and our reputa
tion should be sufficient assurance of
the genuineness of our offer.
We want every one who Is troubled
with indigestion or dyspepsia in any
form to come to our store and buy a
box of Rexall Dyspepsia Tablets.
Take them home, and give them a
reasonable trial, according to direc
tions. If they dont please you, tell
us and we will quickly return your
money. They have a very mild but
positive action upon the organs with
whtch they come in contact, appar
ently acting as a regulative tonic
upon the relaxed muscular coat of
the bowel, thus overcoming weak
ness, and aiding to restore the bow
els to more vigorous and healthy ac
tivity. Three sizes, 25c, 50c, and $1.
Remember, you can obtain Rexall
Remedies only at our store The
Rexall Store. J. C. Perry.
WHY PAY
EXTRAVAGANT PRICES
For ready-made Suits and Coats, when you can select
betterfabrics from the nobbiest line of Stylish Scotch Mix
tures shown in the valley
You should select your own fabrics and select your own pattern
and hav your suit or coat made to suit your i
individual taste and figure
LARGE SHIPMENT JUST OPENED OF
Novelty Scotch Tweeds, Novelty
Reversible Suitings, Fancy
Back Coatings
You've never seen a display like it before
Make your selections early, because it will be impossible for us
to replace these novelties when the present stock is sold
1
The house that always shows the correct dress fabrics in season
Sever Out of Werk.
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 25 cents at J. C. Per
ry's drug store.
i
A.
Can't last many more days.
and bid in your
i CHRIST-MAS
So get in early I
GIFTS!
I At your own price. Hall Clocks, Cut Glass i
: ana some ivianue uocks sun 10 n am
assortment of Bracelets, Brooches, Cuff But
l tons, Rings, Scarf Pins, Watches, Diamonds
i and Solid Silverware
R. M. HARDING, Auctioneer
I CHAS. H. HINGES JEWELRY STORE
Bewnre of Ointments for Catarrh
that Contain Mercury.
as mercury will surely destroy the
sense of smell and completely de
range the whole system when enter
ing through the mucous surfaces.
Such articles should never be used
except on prescriptions from reputa
ble physicians, as the damage they
will do .is ten fold to the good you
can possibly derive from them.
Hall's Catarrh Cure, manufactured
by F. J. Cheney & Co., Toledo, O.,
contains no mercury, and is taken in
ternally, acting directly upon the
blood and mucous surfaces of the
system. In buying Hall's Catarrh
Cure be sure you get the genuine. It
Is taken Internally and made In To
ledo, Ohio, by F. J. Cheney & Co
Testimonials free.
Sold by Druggists. Price, 75c per
Dottle.
Take Hall's Family Pills for con
stipation. "
Jiotlce to Taxpayer!.
The board of equalization for Mar
lon county, Oregon, will meet at the
cour', house In said county, on Mon
day, October 10th, 1911, at 10 o'clock
a. m. and correct all errors In valua
tion, description or qualities of land,
lots or other property, and continue
In session until such work Is com
pleted, not exceeding one month.
All parties Interested are notified
to appear and examine their assess
ment for the year 19U and If not
satisfied with the same, file applica
tion in writing, properly verified, for
a reduction or alteration of the same
during the first week of such meet
ing, as no complaints can be received
thereafter.
F. J. RICE,
Assessor of Marlon County, Ore,
September 2", 1911. 9-27-17tdly
Sick headache ts caused by a dis
ordered stomach. Take Chamber
lain's Tablets and correct that and
the headaches will disappear. For
sale by all dealers.
o
Holm Cat surance.
We .write Insurance on automobiles
and all kinds of power driven vehi
cles at the lowest rates, and Insure
against damages from fire under any
and all clrcumetances, whther In pri
vate or public garage or on. the roaa
or in accident. More can are de
stroyed by fire than by all other
causes put together. Rates too low
est E. Hofer A Sons, 213 8. Com
mercial street 5-22-tl
o
If you have young cnlldren, you
have perhaps noticed that disorders
of the stomach are their most com
mon ailment. To correct tills you
will find Chamberlain' Stomach and
Liver Tablets excellent. Tliey are
easy and pleasant to take, and mild
and gentle In effect. For sale by all
dealers.
o
Journal Want Ada - Bring Results
WEST SALEM
TRANSFER
Passengers Baggage
Connecting with all trains
at West Salem tor Dallas, Falls
City and Salem.
Leaves Journal office for
West Salem at 8:40 a. m., 12
m., 1:10 p. m and 4 p. m. ev
ery day except Sunday. Also
for Independence, Monmouth
and McMlnnvIlle.
Leaves Sunday at 8:00 a. m.,
1.00 p. m. and 5:15 p, m.
Calls at hotels on request.
Telephone or leave orders at
Capital Journal office any day
but Sunday. Phone 82.
NO ORDERS TAKEN FOlt
CALLS MOKE THAN THREE
BLOCKS FROM CORNER OF
STATE AND COMMERCIAL
STREETS UNLESS AR
RANGED FOR IN ADVANCE.
J. B. Underwood, Mgr
:
Midnight In The Ozarks.
And yet sleepless, Hiram Scranton.
of Clay City, 111., coughed and
coughed. He was In the mountains
on the ndvlce of five doctors, who
said he had consumption, but found
no help In the climate, and started
home. Hearing of Dr. King's New
Discovery, he began to use It. "I
believe It saved my life," he writes,
"for it made a new man of me, so
that I can now do good work again."
For all lung diseases, coughs, colds,
lagrippe, BHthma, croup, whooping1
cough, hay fever, hemorrhages,
hoarseness or quinsy, Its the best
known remedy. Price 50c and $1.00.
Trial bottle free. Guaranteed by J.
C. Perry, DniKglBt.
i 123 N. Commercial St
Next Door to U. S. Bank Bldg.
Children Cry
FOR FLETCHER'S
CASTORI A
s
A
L
t
M
ure to please the lovers of a
wholesome beverage,
Iways an invigorating, pure
and delightful drink,
ends strength to the weak and
wearied physique',
ffects a soothing cure for the
nervous ills of life.
akes life more pleasant and
cheers the heavy heart,
B
E
E
R
rings good fellowship to all
who partake in moderation,
nlivens the spirit of the down
cast and disheartened,
ndows existence with hopes ,
and aspirations
estores man to fulness of
strength and activity,
!
., ..
Make Want Advertising
Your Banker
Journal want ads bring quick results t
All patent medicines or medicines ad
vertised In this paper are for sale at
DR. STONE'S
Drug Store
The only cash drug store In Oregon,
owes no one, and no one owes It,
carries large stock; Its shelves,
counters and show cases are loaded
with drugs, medicines, notions, toi
let articles, wines and liquors of all
kinds for medicinal purposes. Dr.
Stone is a regular graduate In medi
cine and has bad many year or ex
perience In the practice. Consulta
tions are free. Prescriptions are
free, and only regular price for med
icine. Dr. Stone can be found athli
drug store, Salem, Or. from 7 in the I
morning until 9 at night North
Commercial street, Salem, Oregon.
mm mm a w m t
iVioms Lash reed
and Grocery Store
Phone 1497
Choice Bacon, per pound 17c
Picnic Hams, per pound 12J4c
Pure Lard, five-pound pnll 70c
Pure Ijird, 10-pound pall $135
14 pounds Sugar f,no
Perfection Flour, p-r suck $1.10
3 cans Tomatoes, Iilue Ribbon brand 2.1c
3 cans Oysters s,",e
2 cans nice table Peaches 2.',c
2 pounds Tillamook Cheese 8'c
6 cans American Sardines 2.c
5 packages liest Corn Starch 2.,c
2 cans Veloban Milk Uc
mason ntnr jars
Pints B3c
Quarts cite
Half-gallons. . 8"c
12 Jelly Glasses 23c
FREE DELIVERY