Capital journal. (Salem, Or.) 1893-1895, 1895-11-16

just Handed Down In Judge HeW TVS
Department.

pasl week In the case Of 4. ". Mitchell
aud others against A. Bush
aud Thomas Holman. The lltIge-
ton grew out ofa contract for The
purchase OF the Oregon Electric Light
company made In january, 1903, be-
tween Thomas Holman and Louis
Kuhn of the one part, and Il. =. Nc.
Cornack aud n. II. Anson Of the lother
part, wherin said Mccormack and
Anson agreed to use their best efforts
10 sell the Oregon Electric Light 90,
10 the state for the sum OF tS 800, aud
In case the state Of Oregon should
appropriate less than $500 for the
purpose Of purchasing the plant aud
cancellIng the contract McCc rnack az d
AnsOn agreed TO make up the def
cheney, for any sum not exceeding
81, 900 aud thereupon Holman and
Kuhn uFon the payment Of the 81, 500
agreed to transfer all the property
enumerated In the contract, land ali
other property belonging to said com.
pany" At the time the contract
was entered into there was due the
Oregon Electric Light Co., from the
state Of Oregon, under the terms Of
contrect with the state the sum OF
81, $40 8S, and no mention Of this sum
was made ut the time the contract
with Mccormack and ADsoD was made.
On April the 18th 1893. Mccormack
Il A oson, duly purchased the property
of the Oregon electric light company
the contract with the state Of Oregon,
m sntIoned In the argument, and The
same was transferred 10 Il. p. McCor-
mack, f., II. Anson, o. +. Paxton and
A. n. Mitchell. BttweeD the date of
the execution of contract, and the pur.
chase of the property, Holman 4
Huhn continued to furnish light to the
state, aud the consequence, In April,
when the plant wac transferred to Nc
Cornack and his associates the state
owned the Oregon electric light COM
psny In ali the sum Of So, 1888 which
sum few days after the transfer Hol.
man drew and recelpted for, and
divided among the stockholders Of the
Oregon electric light company This sum
Of money due from the state was not
mentioned In the contract with Nc
Cornack q Anson, and Mr.. Holman
contended that II belonged to him and
was not included in the property sold.
On the oath day OF February, 1894,
A. Bush recovered Judgment against
3. u. Mitchell and others upon vote
given by them to Holman In 1892 and
transferred to A. Bush as collateral
security for a loan Of some $4,000.
In the meantime Mitchell and his
associates had procured an assignment
OF the claim OF the Oregon Electric
Light Co. against the state, and
brought this suit upon the contract to
have the sum Of 81, ,408 s3 Offset against
the Bush judgment and enjoined Bush
from issuing an execution for that bal.
ance. Holman derived the right Of
the plaintiffs to have that amount Off.
set against the judgment aud In his
answer further asked that the contract
of January 20, 1893, be reformed 80 AS
to accept the sum Of 81, 7OS.33 dueIfrom
the state to the company at the time Of
the transfer.
The case was tried at the October
term 1894, before Judge Hewitt at
Salem, who took the case under advise.
ment and his opinion handed down a
few days ago, finds that 1t was by the
mutual mistake of the respective par
ties to the agreement made In January
1898 that the earnings OF the Oregon
Electric Light ca were omitted to be
reserved frem the operation of said
agreement, when, as n fact, 1t was not
the intention of any Of the parties to
the agreement to include that sum in
the sale aud transfer mentioned and
provided for In the agreement but that
the same should remain the property
of Holman aud Kuhn, After finding
the facts all Holman's Way the court
dismisses the plaintiffs suit with costs.
The balance now amounts to over 5000
and we congratulate our fellow towns
man aud his counsel, III. j. Bigger and
Tilmon Ford,