Daily capital journal. (Salem, Oregon) 1903-1919, 1904-12-20

sary to establish three things: First,
c breach Of the contract; second, John
ston's insolvency, and last, that plant.
if returned the Johnston notes to the
maker. Plaintiff has not paid dol
lar on the contract and Defendant
Johnston cannot be considered trus-
tee when he has not any funds of the
plaintiff. This suit should be dismissed
if there are no other grounds than in
solvency and plaintiffs win have his
remedy at law
He claimed that the contract called
upon the plaintiff to pay to Johnston
$3.50 on the first Of the months, April.
May and June and Johnston had q right
to assume when the bank told him that
payment on these checks had been
stopped that Livesly did not intend to
pay him and therefore had a right TO
go ahead and get it from other parties.
No rational man can believe that
Livesly & Company ever intended to
pay this money and live up to the
contract when they stopped payment
on the checks, but when they realised
that they would lose by the move
they are now trying to make defendant
keep his part Of the contract.
Mr.. Bingham continued for the de-
fense and stated that the main ques-
tion in the ease was whether or not
Mr.. Johnston was in the position that
he could exercise the right to rescind
the contract. These notes, total Of,
$50, had nothing to do with this mat.
ter, but to prove the allegations of the
plaintiffs complaint.
Mr.. Bingham charged that the testi-
mony of the witness John Roberts was
false. He said that Roberts testimony
was eontradicted by the majority of
the other witnesses The vital part of
the contract was the advancement Of
the rent money and for this Johnston
gave up 10 cent contract and took the
one from Livesly for less. The testis
mony showed that Roberts and john
ston had fight and the plaintiffs at
once cut off Defendant Johnston 3 mon
ey so that he would have to give up the
yard and lose his labor, but when they
found that he had raised money, they
tried to arrange it so that they could
get the hops if the price was high, and
let them 60 if they were low.
Livesley did not make Johnston a ten
der when he sent him a check through
the mail for this contract called for
the money and could not be paid by
check. A tender cannot be made by
mail in this case.
Mr.. Darcy spoke for the defendant
Johnston and recalled hoy the hop bust.
ness did not pay few years ago and
many growers lost money and Johnston
was one OF the number. The attorney
then created sensation by demanding
the indictment of John j. Roberts, one
of the plaintiffs and well known hop
buyer, on the ground of perjury. Rob
erts had testified that he was at the
ranch near Woodburn on certain day
and at another place in his testimony
he said that he was nc Carson 3 office,
which would have been impossible UNI
der the conditions as related by the
witnes. He claims that while at the
ranch he made johnson 3 note for $3.50
a consideration in the contract, but
other witnesses deny this and say that
it was not mentioned.
Mr.. Darcy sal / that the cross ex-
animation Of Mr.. Carson who was called
by the defense as a witness, was I'M
professional and said that Attorney
Minor was at fault.
He said that it was difficult for him
to determine whether il was the pur
pose of Mr.. Minor TO demonstrate his
intellectual prowess over Mr.. Carson
or whether he was endeavoring to have
witness contradict himself in his testi-
mony. Mr.. darcy stated that either
Mr.. Carson or Mr.. Roberts had com
mitted perjury, that the latter was un-
by the testimony and Mr.
Carson was eorroborated by nearly all |
of the witnesses in the case and the
contract entered into between plaintiffs
and defendant Johnston and the condi- :
tion of entry in the books of plain
tiha Mr. Carson's testimony was neu-
tral in character while the testimony
Of plaintiffs showed that they were
interested in getting hold Of the hops
for the amount Of money that they
might realize out Of the sale Of theIu,
IIe ehar0ed that Livesly & Go. had