FAGI FOUR
DATLT CAPIT iL JOCKS AI SALEM, OREGON. TVESDAT, OCTOBER 24, 1011.
OREGON SUPREME
Fill Ttxt Poblished bj Coirtetf of
Supreme
Sarchot, rt ill, T. l.eeti, Multnoinnh
( ouutj.
Decided. October 17, 1911. .
A. II. Sarchet, I.Innville & Meyers.
The Ross Company, Manna Percy &
Strickler, respondents, v. Hattle E.
Lcgg, appellant. Appeal from the
circuit court for Multnomah county.
Hon. W. N. Gatens. Judg. Argued
and submitted October 11, 1911. C.
A. Sheppard nnd (John B. Moon on
the brief) for respondents. J. F.
Hoothe for appellant. Moore, J. Re
versed. This Is a suit to foreclose alleged
mechanics' liens. The defendant.
Hattle E. I.egg entered Into a con
tract with V. A. Kldgcn whereby he
stipulated to furnish the material
and to construct for her a building
on her lot in Pleasant View Addition
to Portland. Ridgen sublet the plas
tering of the house to the plaintiff,
A. II. Sarchet, the plumbing to Linn
vllle & -Meyers, partners, and the ce
ment work to H. C. Ross. The lat
ter obtaining from Mason, Percy &
Strickler, a corporation, material
that was used In the structure. The
value of the cement and the agreed
price of the work so underlet not
having been fully paid, lien notices
were filed ngalnst the defendant's
real property by I.Innville & Meyers,
October 4, 1909, for $211; by Mason,
Percy & Strickler, October 9th, for
$27; and by Sarchet, October 11th, for
$97.50. The latter Instituted this
suit making the other lien claimants
co-defendants who, answering, Inter
posed cross complaints to foreclose
their liens. Answers to the several
complaints were filed by Mrs. I,egg
and the cause being at Issue was
tried, whereupon each claimant was
awarded the sum respectively de
manded with Interest from the time
the notice was filed and $1.00 as
clerk's fees. There was also allowed
attorneys' fees as follows: Sarchet,
$35; Mason, Percy & Strickler, $2.V
and Linnville & Meyers, $.".0. From
this decree Mrs. I,egg appeals.
Moore, J. The only question In
volved Is whether or not the Hen no
tices were filed within the time lim
ited. In order to create a lien the
original contractor must within 60
days after the completion of his con
tract, and all other claimants must
within 30 days after the completion,
alteration or repair of a structure, or
after he has ceased to furnish mater
ials therefor, file with the clerk a
claim, etc. Ij. O. L. Sec. 7420. Nei
ther of the claimants herein being an
original contractor. It Is Insisted that
the notices were not filed within 30
days after the completion of the
building or after the claimants
ceased to furnish materials therefor,
and such being the case an error was
committed In foreclosing the alleged
Hens. . '
D. B. Flecklnger, an architect, who
prepared the plans and specifications
of the building and supervised Its
construction, testified that Uidgen
did not do any work on the house nf-
ter August 1, 1909, asserting that It
was completed at that time and that
about two weeks thereafter, Mrs.
Legg accepted the building and paid
the contractor the remainder due.
This witness says he did not accept
the house because of Interior work
manship, but that Mrs. Legg ac
quiesced In the defective handiwork
contrary to his orders. Thnt In or
der to connect a boiler to be Installed
In the building with a range RIdgen
was required to extend a pipe
through a wall which work he never
performed, saying: "The owner and
the contractor had mutually agreed to
cut It out entirely from the plans
and specifications." Flecklnger, on
cross examination, In referring to the
performance of labor after August
14. 1909. when the bluldlng was ac
cepted by the owner, testified as fol
lows: "I employed the subcontract
ore to come on and finish some work
thnt didn't Beeiu to be incorporated In
Rldgen's contract, and which from
his standpoint he refused to do." He
further stated upon oath that after
Mrs. Legg paid for constructing the
house he had thlH piece of pipe put
through the wall but could not state
whether it was In August or Septem
ber, 1909. II. C. Ross, whose em
ploye put In the pipe to connect the
range and the boiler, In fixing the
, time when the work was done, testi
fied as follows: "To the best of my
recollection It was In October; 1
could not say without looking up the
records." on cross examination he
was asked, "Do you know what time
In October you did this work?" and
he replied: "Not without getting the
records." Q. "Don't know whether
It was the middle or fore- part of the
month? It may have been after the
middle of October?" A. "It may have
been." Q. "Was any one living In
the bouse when you did this work?"
A. "My understanding is there was a
tenant in both apartments. I was not
at the house but I do remember the
tenants ringing up and complaining
that the work was incomplete and
wanting to know if I had the con
tract." S. C. Jagger, an electrical engineer
whoso employe wired defendant's
building, testified that on October 7,
1909. Kldgcn notified him that the
wiring In the attic should be re-arranged,
and that a switch had been
omitted from a bed room and an
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COURT DECISIONS
F. A. Turnt-r, Extorter of the.
Court
electric light from a newel post, and
.that tills work, which was required
Minder his original contract, was com
I pleted on that day, saying: "RIdgen
was on the Job at the time." This
witness says he remembers the day
, this work was done because of hav
i Ing received from a customer a sum
of money, the payment of which was
noted at that time in his day book.
No day book was produced, however,
to substantiate the fact. Mrs. Legg
i testified that the light on the newell
i post was put in long prior to the
I time stated, but that the switch in
(the bedroom might have been put in
later. Her daughter, Bessie, testified
I that she never saw RIdgen at the
I building after the settlement had
Sheen consummated on August 14,
jl909.
I The testimony also, shows that
i some cem'-nt work, specified in Rld
i gen's contract, was omitted and has
never been performed. It does not
'appear, however, that such work was
I to have been any part of the house
and might have been the construc
'tlon of a sidewalk for which no lien
Us allowed. Hnrrlshurg Lumber Co.
iv. Washburn 29 Ore. 150. It cannot,
.then for, be said that the completion
'of the building depended upon finish
ing the cement work.
The electrical switch and the newel
post light asserted to have been put
I In October 7, 1909, and the pipe
i placed through the wall which the
I architect says may have been done
In August or September, but which
Ross asserts was performed In Octo
ber, and possibly after the middle of
that month, are relied upon to extend
the completion of the building so as
to authorize the filing of liens not
later than October 11, 1909. Jagger's
sworn statement that "RIdgen was on
the Job at thnt time," the electrical
work was completed, convinces us
that he unintentionally erred in fix
ing October 7th as the day the labor
was performed, for the testimony
shows that after August 14, 1909,
when the house was accepted, RIdgen
was never again seen at the building.
When real property Is to be encum
bered with a lien which attaches to
property without the owner's con
sent, the particular day of the per
formance of the work relied upon to
extend the completion of the build
ing ought not to be left In doubt as'
It Is by the testimony of Ross. No
attempt was made to show by any
memorandum when this work was
performed though he intimates that a
record thereof was kept without
which his testimony la too vague and
indefinite to fix the particular day
when the pipe was placed In the wall.
In order to protect laborers and
material men, our statute makes am
ple provision and should be liberally
construed In their favor on the
ground that the enactment Is rem
edial. Where, however, the rights of
an owner who relying upon the com
pletion of 'the building, has paid the
contract price or If an Innocent
grantee of the premises becomes ln-
volved, such trilling things as the
fastening of nn electrical switch or
I the placing of a pipe through a wall
should not be regarded as incidents
I in the completion of a building but
ns repairs. Coffee v. Smith 52 Ore.
j538; Crane Co. v. Ellis 114. Pac. 475.
The refusal of the architect to ap
I prove the work performed by RIdgen
1 Is Immaterial for no far as disclosed
t by the evidence, Flecklnger was only
an agent and his principal. Mrs.
I.egg, could disregard his Advice and
do as she pleased about accepting the
building. She exercised this privi
lege August 14. 1909, when she paid
the contractor all the money to which
he was entitled except $95 which
sum he received September 15, 1909.
The house wns substantially com
pleted when It was completed and the
lien claimants by vlgilence could
have discovered that fact, but they
waited, expecting to receive their
pay from Ridgen, and after learning
that he had absconded, they seek to
establish claims against the proper
ty, but as they were not wntchful
they are not entitled, under the cir
cumstances detailed, to liens, and
hence the decree is reversed and their
several suits dismissed.
Harmon, rt. nl, t. Grants Pass Rank,
lug and Trust Co., et nl, Josephine
County.
Decided, October 17. 1911.
C. E. Harmon, O. N. Bailey and I,.
I.. Jewell, appellants, v. Grants Pass
Banking nnd Trust Company, a cor
poration, Ilolmnn-Foskett Mines
Company, a corporation, nnd J. H.
Bailey, resjondents. Appeal from the
circuit court for Josephine countv.
Hon. F. M. Calkins, Judge. Argued
and submitted October 4, 1911. A. C.
Hough for appellants. O. S. Blanch
ard for respondents. Moore, J. Af
firmed. .
This Is a suit to have a deed of
real property declared to be a mort
gage and for an accounting. The
facts are that the plaintiffs. C. E. Har
mon, C. N. Bailey and I,. L. Jewell
and the defendant J. K- Blaley on Oc
tober 1, 1907, gave to the defendant,
the Grants Pass Banking & Trust
Company, a corporation, herlenafter
called the Trust Company, a promis
sory note for $3,000.00 payable In a
year with Interest from that date at
the rate of eight per cent per annum,
stipulating to pay such additional sum
i
as the court might adjudge reasonable
I as attorneys' fees In case suit were
j Instituted to collect the note or any
; part of it. In order to secure the
j payment of the note the makers
(thereof executed to the Trust Com-
pany a mortgage of four quartz mining
I claims In Josephine county, of which
premises, subject to the paramount
title of the I'nited States. Jewell
owned an undivided two-fifths and
each of the other mortgagors one
fifth. In January, 19"9, no part of
the note having been paid, the payee
Insisted upon its discharge and threat
ened to foreclose the mortgage.where
upon the plaintiffs and the defendant
Bailey executed to the Trust Company
a deed of the mortgaged premises, in
cluding an appurtenant water right, a
j quartz mill, machinery and tools, and
received the note, secured a cancella
tion of the mortgage and also obtained
the surrender of an unsecured note.
The consideration for the latter relin
quishment was the assignment to the
Trust Company of a claim for ex
penses Incurred In moving machinery
to the mines.
A, contract was entered Into March
8, 19H9. by the terms of which the
Trust Company stipulated to sell and
convey to the defendant, the Ilolman
Foskett Mines Company, a corpora
tion, hereinafter called the Mines
Company, all the property described
In the deed referred to. for the con
sideration of $1ii.immi.ii0 of which
$.",00.00 was then received, $."00.00 to
be paid April 1 of that year. $1,000.00
on the first of the succeding July,
and $1,000.00 a month thereafter, on
account of which $7 000.00 had been
paid when this suit was commenced.
The plaintiffs, asserting that the
deed so executed was intended by the
parties to the Instrument as a mort
gage to secure the sum of $3,000-00
and interest, demanded of the Trust
Company an accounting for the money
which It had received under the con
tract of sale, In excess of the original
debt and Interest, but failing to secure
Any recognition of their claim this suit
was Instituted, J. R. Bailey being made
a party defendant because he would
not Join in the prosecution.
The complaint sets forth th facts
hereinbefore detailed and alleges that
the deed was executed as further se
curity and pursuant to an agreement
with the Trust Company whereby the
mortgagors were to endeavor to sell
the mines, and after discharging the
Indebtedness referred to.the remainder
of the purchase price was to have
been paid to the tenants in common;
that the mortgagors secured as a pur
chaser of the premises the Mines
Company with whom the contract of
Vale was effected with their consent,
nnd they offered to make to it a con
firmatory deed or to execute such
other evidence of title to the mines as
the court might decree.
The answer denies the material
averments of the complaint and for a
further defense sets forth new matter
which Is denied by the reply. Based
upon the Issues thus formed the cause
was tried and the suit dismissed from
which decree the plaintiffs appeal.
Moore. J. It Is contended that a
consideration of the situation of the
parties to the deed; of the price stipu
lated as a consideration for the mines
when compared with their value; of
the conduct of the parties before and
after the deed was given; and of the
circumstances attending the transac
tion, shows that In executing and ac
cepting the deed it was intended that
the sealed Instrument should be se
curity for the payment of a debt, and
such being the case errors were com
mitted In dismissing the suit and In
not granting the relief sought.
The Intention of the parties at the
time an agreement is consummated to
execute a deed determine whether or
not title to property was to be Irre
vocably transferred, or the convey
ance though absolute was to operate
as security for the payment of a debt
or the performance of an obligation.
Kranv v. Wilson. 49 Ore. 333; Hall
v. O'Connell, -52 Ore. 164; Elliott v.
Bozorth, 52 Ore. 391. Based on the
maxim that a person takes ordinary
care of his own concerns (U O- U
sec. 799. sub. 4) a disputable presump
tion arises from the execution of an
absolute deed that the conveyance
evidences the intention of the parties
except In cases of fraud. Parrish v
Parrlsh. 33 Ore. 4St. In order to ov
ercome the deduction which the law
'thus expressly directs to be made
rrom particular facts, the burden of
proving that a sealed' instrument is
not what it purports to be Is cast
upon the party who asserts a different
signification. Parol evidence is suf
ficient for that purpose but in order
that title to real property may be
rendered secure, proof of that char
acter ought clearly to preponderate.
Plaintiffs' counsel seems to place
much reliance upon the case of Ste
phens v. Allen. 11 Ore. 1SS, 190, where
in referring to evidence tending to
establish the subordinate elements of
fact relied upon herein to disclose the
Intention of the parties, it Is said:
"As a consequence of this doctrine
each case must be scrutinized and
Judged by Its own surrounding facts
and circumstances, and when the re
sult of the evidence Is to produce
doubt, the courts Incline to construe
the Instrument to be a mortgage."
The authorities cited to support this
declaration of a legal principle are
Jones. Mort. sec. 279; Conway's Exr.
v. Alexander. 7 ("ranch 218; Edrlng
ton v. Harker. 3 J. J. Marsh 354. each
of which refers to a transaction where
doubt exists ns to whether the con
veyance was intended as a mortgage
or a conditional sale.
If the transfer of a title Is made to
depend upon the performance of a
condition nnd nt the termination of
the limit prescribed for a reconvey
ance, the grantor Is not In a situation
to keep his promise, or does not desire
to perform his engagement, no legal
obligation rests upon him to do so.
The conditional sale reserves to him
a mere option, permitting him to spec
ulate upon the possibility of an en
hanced value of the property, and if
his expectations are disappointed In
this particular, allowing him to escape
liability, but If his desires are real
ized, authorizing him to demand a re
conveyance. When, however, the trans
action Is regarded at its inauguration
as a mortgage the opportunity for
hazard respecting any fluctuation in
the value of the property is eliminated
and the doctrine of once a mortgage
always a mortgage controls. Jones,
Mort. (6th ed.) sec 256: "A mortgage
and a conditional sale" sav the court
In Turner v. Kerr, 44 Mo. 429, 431,
"are said to be nearly allied to each
other, the difference between them
being defined to consist In this: that
the former is a security for a debt,
while the latter is a purchaso accom-
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DR. T. FELIX GOURAl'D'S ORIENTAL
CREAK OR MAGICAL BEALTIFIER
R motet Tin, Ptmpl, ,
h roc&tn, M 'th I'oiebfeJ, j
Kiii, and hki Disfkavt, ;
man every Dieuub
nt) bMUtf. mJttX Jt
fle detection. It
btw Uwo4 the tet
if flu yean, ud
l to b&rmift vi
tuteltuibetureit
la property mad, .
Accept noeountt-j'- I
(eit of lioutlw I
nun. Dr. L. A. i
Savr tald to a
lady of the tutut
t n ptttleot):
At you iaVllCt
wtJJ ow tbem,
I reeommena
'i.otiraHit'ft C renin1
the ItaYtt harmful of all tb
akin r,rnraUifm " h,r ul tv ill drUE21tt and FUC
Oooda Dtaier in tbt felted sutea, Caula and Europe.
IERD.T.HOPIIIS, Prop.. 37 Grtat Jcnes Street RtwTori
panied by an agreement to resell on
particular terms." A conveyance in
tended as a sale upon conditions must
contain either In the body of the in
strument or in another memoranda,
acknowledged by the grantee, the ex
press provisions the performance of
which authorizes a reconveyance of
the premises, since, aside from the
question of a reformation in conse
quence of omission by mistake, the
(led must speak for itself and a con
dition cannot be engrafted upon a deed
absolute in form by parol evidence.
2 Devlin, Deeds (2nd ed. sec. 976.
Based on these considerations the rule
has been established In equity that
where doubt exists as to whether the
deed-evidences a conditional sale or
a mortgage the uncertainty will be
resolved In favor of a conveyance de
signed as a security for the payment
of money. The doctrine thus an
nounced has no application to the case
at bar for it is not pretended that an
agreement, oral or written, was ever
consummated whereby the mines were
to have been reconveyed to the
grantors.
The cooperative elements relied up
on to reveal an intention to execute
and accept a conveyance by way of
Indemnity will be examined in the
order hereinbefore stated. The evi
dence shows that in January, 1909,
no payments had been made on the
$3,000-00 promissory note, though it
was due., J. T. Tuffs, the managing
agent of the Trust Company, demand
ed a partial payment with which Jew
ell and J. R. Bailey could have com
plied, but the other makers of the note
were unable to respond. The requests
for a settlement became more urgent
as the time elapsed. Tuffs threaten
ing to have the mortgage foreclosed
unless the debt was speedily pall.
Several conferences were had with
him by Harmon and both Baileys in
an effort to retain an equity In the
mines, the title to which they offered
to convey to the Trust Company if
they could secure from the latter ,a
bond for a deed covenanting to recon
vey the premises upon payment of the
mortgage debt, but these offers were
declined. Jewell was not then on
friendly terms with any of the agents
of the Trust Company and never con
sulted with them. His interests, how
ever, were represented by the other
cotenants who reported to him the
results of all their interviews with
Tuffs. As a term of court was draw
ing near at which the mortgage coul l
have been foreclosed thereby incurring
costs of suit, attorneys' fees stipulated
for In the note and the possibility of
a deficiency Judgment If the property
did not bring enough at a forcer; sale
to satisfy the decree, t prevent, which
consequence Harmon, Jewell and J. R.
Bniley and the wife of each, on Janu
ary 6, l!i0(l, jdlned in executing a deed
of the property to the Trust Company.
G. X. Bailey or his wife did not sign
or acknowledge the conveyance until
January Kith, on which day the deed
was taken to the bank of the Trust
Company for delivery. At that time
the grantors thinking they might, in a
few days, be able to effect a sale of
the mines to a party with whom they
had been negotiating. Tutfs acceded
to their request and wrote on the back
of the deed: "Hold until Thursday
Jan. 21. 1909." The expectation rf a
sale not having been realized, the deed
was filed for record the day following
the time so limited whereupon the se
cured note was surrendered to Its
makers and the mortgage record sat
isfied. The plaintiffs severally testified
that at tite time their deed was exe
cuted the value of the mines was $25,.
000.00 or more. , The evidence shows
that a long tunnel had been run, and
many improvements made on the
property which Included a five-stamp
mill. The mines had been owned by
the grantors several years, but with
the appliances which they j.ossessed
all the gold could not be saved, and
for that reason the speculation had
never been profitable.
It will be remembered that on March
8, 1909, the Trust Company engaged
to sell the property for $10,000.00 of
which sum only $500-00 was then paid.
T. J. Brinkerhoff. w.ho negotiated this
purchase for the Mines Company, tes
tified that after the contract bad been
effected, Harmon told him the prem
ises could have been secured from
the mortgagors for $5,000.00, which
sworn statement was not denied.
Jewell testified that as much as
$20 000.00 had been expended in devel
oping the mines, the base ore from
which could not be successfully treat
ed with their mill. On cross-examination
this witness having stated that
he had seen the time he would have
given $20,000.00 for the property, was
asked: "That was before you knew
as much about It as you do now?" He
replied: "Yes, sir, before I knew ns
much about mining as I do now.'' Q.
"You wouldn't buy it now?" A. "Two
fools might meet." Q. "In other words,
buying a mine is a good deal ilke
buying a gold brick, is it not?" A.
"To a certain extent I think it is."
These replies made by a man who
had learned wisdom by experience af
ford the best explanation of the value
of most mines, the worth of which is
whatever sum can be obtained from
such a buyer as Jewell describes.
The testimony shows that prior to
the execution of the deed Tuffs re
peatedly stated to the mortgagors who
conversed wtih him about the matter
that the Trust Company did not desire
the property but needed its money.
His granting an extension of five days
in which to effect a sale of the mines
after the deed was tendered confirms
his declaration.
G. N. Bailey testified that on Janu
ary 16, 1909, and prior to signing the
deed which be then had in his pos
session he saw Tuffs to whom re
said: "I told him that I was ready
ma 3 ar ; r--v
(Continued on page flto.)
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to offer big reductions to close out their stock, We have taken advantage of these re
ductions, and are now able to offer big bargains in Ladies' Coats.
ALL THE LATEST STYLE COATS FROM $4.00 and uo, COATS AT $4.50, $5.00, $6.00
$7.00 and $8.00, and every one a bargain,
Fine all-wool brown mixtures, trimmed with Silk Braid, Large Buttons, good values at
$15.00
Our Price $9.50 .
Coats for Stout Women
All-wool black broadcloth, neatly trimmed, only $11,50.
SWEATERS
We have an exceptionally large assortment of Sweaters for Men, Women and Children.
I his week we have made a special of our best all-wool Sweaters, wide range of plain
and combination colors, Our regular price on these sweaters is $2.50.
' Special Sale Price $1.75
ROSTEIN &
Leading Milliner
Street
Eighteen Button Boots
Our eighteen button boots for women
in Tan and Gun Metal are the nifty shoe
of Salem. If you do not wear them you
do not have to look very long to see them
on the street. Just the thing.
We also have a big shipment of child
ren's Jockey Boots in all leathers, and in
several heights. Now is the time to buy
these goods, don't wait until it rains and
have to get your feet wet.
We have the best repair shop in the city.
I Reinhart's Shoe Store
I Opposite Bligh Theatre. 444 State Street
Huie Wing
6.00 Fur Sets, sale price $4.50
73c wool Serge, sale price.. 50c
$2.25 children's Wool Sweat
ers $1-50
Ladles' Petticoats, 50c, 75c, $1.,
$1.50 and up.
Ladies' Wrappers, $1.00, $1.25,
$1.50 and up.
65c Children's Union Suits
now. . 45c
$1.75 trimmed Muslin Night
gowns $1.25
. All goods selling at 20 to 35
325 N. Commercial Street,
M M
Make Want Advertising
Your Banker
X Journal want ads
GREENBAUM, 'A.
SALE
Phone 578
.
Sang Co.
$1.25 men's Sweaters, now.. 75c T
O T.f tviAn'o TnAiiaora nn' 19 T
$3.50 men's Shoes, now... $2.90
$12 ladles' lined Fur Coats t
now $10.50
$3-25 children's Coats, now I
$2.15 j
Men's flannel Shirts, $1.25, J
$1.40, $1.50 and up. I
$1.00 Caps, fur-lined, now.. 65c I
Silk Scarfs, 50c, 75c, $1.00 up I
to $2.85.
per cent discount this week.
Salem, Oregon
MHMjH
bring quick results