Daily capital journal. (Salem, Oregon) 1903-1919, 1905-02-17
FTNS
HOP
CASE
Dee Galloway Decides In
eaYOr Of LiVeSley Against
Johnston
lertOn Railroad Track Will
Not Be Removed by
Court

pdge galloway this morning con
ed department No. . of the circuit
Il and handed down decisions in the
pwing cases.
the case of T. A. Livesley & Co
John johnson, Jr., and Simonds
intervenors, q decision was hand
down in favor of plaintiff, making
injunction permanent, and decree
b the possession of the hops to Lives
& Co. under the contract with John
rhis Is a suit for specific perform
e under temporary injunction grant
last September 18th. Plaintiff en-.
I'D into contract with defendant fol
boo pounds of hops for each of the
ssfs Of 1e03-4.5-6-7, to be raised up
+ The Chapelle yard, near Gervais, OF
leh defendant was the lessee, at 91a
ts per pound, to be delivered al
tOdburn during the month of Octob
of each year, Livesley agreeing to
~ $3.50 on or about April, May and
he of each year for eultivating pur'
YES and Az cents per pound, during
\ season, for picking purposes, to-
bier with 1896 about April l, 1908,
rent money.
Plaintiffs allege that defendant is
plvent, and has repeatedly refused
comply with his contract, and has
iempted to Feseind the same, and
20 he has attempted to mortgage or
terwise dispose of said hops to the
1eFFeners, Simonds g. Son, in viola
ah Of his contract. plaintiffs further
q m that they have been Ieady and
ling to comply with every and all re-
y ,lFements under the contract.
Defendant alleges in answer that he
Is been willing to comply with the
rms of the contract, but that plaintiff
used to make payments as agreed,
"a that therefore he gave the plain
fs notice of cancellation and recision
the agreement between them,
rough his attorneys on April 9, 1908,
"a ever since has refused to comply
|th tho terms Of the contract, owing
the RECESSION of the same on his part,
q that he was required, for the pur-
De of eultivating and harvesting the
pp of 1904 to mortgage End dispose
said hops to Simonds & Son.
Tho court finds in part: That plain
h rendered to defendant on April l6,
|D4, their check for $3.50, as stipulated
the contract, and on August S, 1904,
Rintiff offered to pay Az cents per
pnd as stipulated for picking pur-
Des, and further on September sth,
|ereafter, plaintiff made a tender of
4 money due, by registered letter ad-
'tssed TO defendant at Gervais, his
idenee given in the contract, and,
|th each of these tenders, plaintiff no
Nd defendant that he would be re-
'ired to perform all the terms of his
,htraet.
The court further found that a con-
Yet must be mutual and for a valu'
1se consideration, and cannot be re-
'lhded or annulled at the will of one
the parties. without the consent OF
other, or refusal on his part to com
with the terms, and thet this con
= Jet is several and seperate action
4 st be brought each year to enforce
fullallment-
is further held that tender by
,k is sufficient, unless the party re-
1'sing tho check objects TO the tender
such, and that the defendant did
show good faith in refusing to- re
Fo or take such tenders through the
~ II is further held by the court
i AvesaeY & Co. made tender by
lek of $3.50 dated March 2S, 1908
fable TO the leesors Chappelle, rent
\ sney, as stipulated for the year 1908
ieh cheek defendant refused 10 re
ve and pay to his landlord, thu
bwipg bad faith, and a desire 20 an
or reseind the contract.
Fhe court further held that on Maref
1908, the plaintiff stopped the pay
Pat Of check mailed TO defendant
lreh 2sth for $3.50. This act on th'
= Of the plaintiff was held not 10 b
eeision of the contract on the Par'
the plaintiff, as Livealey 4 Co. had
entire month of April, 1908, tS
IKE the first payment of $3.50, as spec
ID in the contract, and therefore de
Adant was not Justified in his attempt
Feseind his contract as he attempted