The Douglas independent. [volume] (Roseburg, Or.) 187?-1885, 1879-10-25
Huat and wah-ker VS.. Tieghl.
HEAD NOTES.

4
HEAD NOTES.
1. Political Maxim" Stand by
7our friends,r Is we'll settled maxim
n politics. In the absence of stat
ate, il is hereby declared to be part
If the unwritten lawn of this State.
Query, whether this fundamental rule
5 NOT more binding than even q de-
.ree of the "clike 2"
2. Comity.-Where one member of
his court is under political obliga-
lions to suitor the principle of
,omity applies and the other members
have no option to oppose his decision
In favor Of that suitor. The concur |
ring opinion of Patrick @. ]. In Estees
VS.. Mott Is adopted as the law OF this
court.
Option Contracts. Where creditor
has the option to treat a debt as due or
not when the interest shall be un-
paid, he must be held to have elected
to treat it as due or to have lost that
option in some other way If that
Hoption y conflicts with q fundamen-
tai political maxim.
4. Guaranty.-Where, in addition
to putting up bis property as surety
for q ruinous debt, q political friend
guarantees that the principal will pay
the whole debt In q specified time, and
the principal fails and becomes
unable to pay, 1t is contrary to equity
and to the sense of common justice
that such a surety should be held to
have meant TO warranty such a debt.
5. Petitio Princeps. - Begging
the question y is q very important
rule of law logic. Where plausible
reason must be given for a decree de-
priying man of about $50 600, 1t is
proper that such opinion should be
very lengthy, and should assume the
real issues as clearly with defendant,
and argue earnestly on the conclusions
to be drawn from these assumed false
premises.
6. Conscience.-Where the opinions
and DEGREES of this Court are of no
validity and may be overturned by a
Constitutional Supreme Court, 1t is q
salve to the conscience to know that
the plaintiff has not lost all by our act.
I. "Outsiders. Where plaintiffs' at
torneys are outsiders and one oi
them is popular on account of his re-
puted fairness and uprigntness, it IS q
special pleasure to cinch them and
and thereby weaken their influence
with the people.
FACTS.
The facts of this case are sufficiently
stated in the opinion of the court.
Mote, Reuben J. did not sit in thi:
case, having tried itin the court below
OPINION.
Patrick C. J. delivering the opinion
This is suit in equity to foreclose ;
| mortgage. The Court below decided
in favor of the plaintiff sustaining tn,
mortgage on TieghPs property. From
that decree, Tieghl appeals. The eyi
dence in the case shows the following
facts, viz - WoIt-ker EiUes in SdIl
Francisco. On the 10th of August
1874, Coal Schmit made the follow.
ing note
PORTLAND, OREGON, Aug. 10, 1874
1.-TWO years after date without grace
for value received I promise to pay
to Wah-ker or order 100000 with in
terest thereon at the rate of one pei
cent. per month until paid. Interest
to be paid monthly, and if there be
default in the payment of interest fol
the period of twenty days, then the
whole sum, principal and interest
shall at the option of the holder of this
note be Immediately due and payable.'i
To secure this note, Tieghl put ur
large amount of real estate transferr.
ing it to Huat as trustee, with an
agreement that if said note becam.
80 days over due Huat shall after de.
mand for payment sell the land on 81
days notice. At the end of the tive
years, (August 10, 1S76) $685. of thu
note remained unpaid. On Octobel
| IL, 1876, Z. and Il. obtained an ex
tension of time for one year from tha
date for the payment of the note ant
Tieghl put up more real estate as ne
fore. The second agreement recited tn,
| first agreement and note and provided
that in consideration of the extension
G. and L. "undertake and agree tha
the said G. will promptly payn tn
interest when due and the principal a
the end of the year, and that, in de
fault of payment of principal or in
terest, the whole debt shall becom,
due as provided in the first ugreemen
and note [i. e. interest being IL
default, whole debt to be due at tht
option of Walker. Rep.l The agree
nent tneu deciares-Ihat Wan Ike
agrees to extend the time for pay ymenl
u principal and interest one year, OF
until default in payment of interest
and no longer but If default be made
in payment of interest the whole deb
| with then accrued interest "shall be.
come due and payable as in said note
specified" Ii. e. at Wah-ker's option
Rep lt is distinctly understood
and agreed by the parties hereto thai
the agreement of August 10, 1874, i;
not annulled, vacated, or set aside by
the execution of this agreement ex.
cept in so far as the same may conflict
! with this agreement in all other
respects, the two intruments are to be
taken and construed together"
Default was made in the payment oI
interest January 81, 1877. Plaintiff
commenced suit to foreclose Septem-
Der 26, 1877, one month before the
year expired, N the exercise of their
! supposed option. Defendant claimed
his property was discharged because
Huat and Wah-ker did not commence
soon enough and also claimed that
he was not guarantor of the note
under said contracts.
/ 1t will be seen that the first and
most important question arising upon
these facts is whether the option OF
| Wah-ker to treat the debt as due on
not due on default in payment OF
| interest as allowed In the note. and
| first contract was annulled. va.
Gated, or set aside," by the second
contract for the last extension oi
one year had not expired at the time
suit was brought, and therefore the
debt was not due except at Walkers
option, If that option existed, and
Tieghl had no defense. Did the
"option - conflict with the terms of
the second agreement ? That agree
ment provides that in default of paw.
ment of interest the whole debt shall
become due and payable ds in soid
note specified. So far from the
| 'option being in conflict with, it is act
| naliy adopted by, this italicized clause
of the second agreement. Plainly.
only that part of the note Is annuIled
which provides that the note shall be-
come due two years from August 10.
1874. and in its stead the second con-
tract provides that the note shall be-
come due one year from October Is.
1876. In the original note it was pro-
vided that the debt, on default in in
terest, should become due at the hold
er's Hoption;n in the second agree
ment it was provided that the debt on
default of interest should become due
as in said note specified, /. e. at
h,tltler's option. Nothing could be
palmer. But TO elinch the matter, the
second contract expressly requires the
two instruments to be takensand con-
strued together in all respects where
they do not conflict. So constituting
them together the contract in the note
would read
Zone year after October IS, 1875
without grace, for value received. I
promise to nav to Wah lor-n. i =