Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-08

utSlIutllOu VI q NNhNA dNls Uul dloO
the restoration of the parties to their
former estate or situation. The
transaction mentioned did not pro-
duce such a result, because, on the
one hand, Miles did not surrender
the possession of the land and, on the .
other, Hemenway did not return the
notes which Miles gave for the pur-
chase price Two of the notes had |
been endorsed by Hemenway and [
were held at the time by the bank as
collateral security for Indebtedness
owing by him to the bank. 1t is |
. true he says he told the cashier to
give up these notes to Miles but, |
without dispute, they were not Of
fered to Miles until some days after
the uuit-claim deed had been sur
rendered to Hemenway by the Off
GERS of the bank. For the purpose Of
delivering these notes, the cashier
was the agent of Hemenway and the
latter must be bound by the act or
failure to act on the part of his agent.
In legal contemplation, Hemenway
had not surrendered the notes and
conceding that he had right at 12
o'clock noon on October 18th to de-
Clare d lOIlGllults lilo ldllul W
render the notes would be a waiver
of his right to declare the forfeiture
at that time. He could not after
wards insist upon a forfeiture with
out giving reasonable notice to Miles
and making new demand for pay
ment of the balance due on the pur-
chase price. Graham V. Merchant,
43 Or. 294. That the transaction was
= still open, preventing forfeiture,
= see Bickel v. Wessinger, - Or. =,
5 113 Pac. "a, 3S.
g A strict analysis of Exhibit G."
. discloses by its recitals that the par
. ty of the second part is unable to
make the payments required by the
a original contract, including not only
d the one then due, but also the de-
r ferred payments. 1t also recites that
r the party of the second part desires
e an extension of time, but it does not
e disclose anywhere that Hemenway
o agreed to extend the time. So far as
o the extension of time is concerned
l. the agreement is unilateral. 1t hav-
d ing been executed under seal, how
h ever, Exhibit G" may be said to be
J. supported by a sufficient considera.
ton, for the seal is primary evidence
e of consideration. L. o. L, Sec, 776.
le 1t is said with reference to tht
f. quit-claim deed that if the said par
ty of the second part fails to make
v, said payment" Exhibit G" and tn,
quit-claim deed should be delivered
70 to the party of the first part, M
:, time is specified in Exhibit C' with
a. in which said payments are to b,
i made 1t is set out, as above stated
= that Miles desires until October II
- 1909, at IL o'clock a. m.," bCt it /
not prescribed that he should max
IN the payments at that time, or at an
10 10 other particular time. Indeed, tim
of is not made the essence of this agree
W. ment or of the original agreement
co hence we must construe Exhibit G
ne as to the time of payments to mea
nt that such payments must be mad
no within a reasonable time. Takin
It the quit-claim deed and Exhibit c
~ together, they amount in legal effeC
of to a contract in which Exhibit
n is in the nature of defeasance {
the quit-claim deed, the whole hay
,d ing a general consequence like tn
,s former agreement. The complet
cd transaction as evidenced by the dee
and Exhibit c. is in the nature of
+o further assurance from the plainti
H. to the defendant for carrying out tt
mo- original obligation to pay the pu
II chase price of the land The deed
in substantially renewed acknow
mo edgement of the defendants Leg
W. title in the land but the defendal
H. took said deed, like any other graz
lbo tee in duit-claim deed, affected
o. the principles of caveat emptor, al
ias all the more in this case because
1ut had actual knowledge of the equiti
ied of Miles in the land. 1t was, at lea'
enhanced security to Hemenway
,,,, cause it includes in one and hastel
~ the deferred payments on the Ian
.t,, In other words, the effect of ''EXhi
bot boJt it c., including, as it does, all t
Nv payments, was to make new teri
~ whereby the transaction should
rs+ ended once for all, either upon pa
,.t,, ment of the whole balance of t
q 81 purchase price, or render Miles Il
f." ~ BILE to a strict foreclosure of
-or. rights in the premises. If Miles h
or paid in full the balance of $4,000 I
in naming of the purchase price,
,nw quit-claim deed would not have be
~ W lawfully deliverable. On the 9th
" hand, failure to pay, installed
,ec- new contract declared by the qu
iroo claim deed and it's defeaSance, e
ber hlplC NY Wn.cn eci iS' Vloon
.oU the price remaining unpaid,
"a G So far as mere words are cC
tho cerned, the original contract is
Wv form not less absolute than the gu
90" oad claim deed and Exhibit c" in pl
~ ~ viding for a forfeiture in case I
+n plaintiff fails to pay to the uterm,
DO farthing. But equity looks to
on1, substance rather than to the for
: is Things which are equal to the sa
,+ad thing are equal to each other, and
as shown in the former opinion,
900 would require a strict foreclosure
&c divest the plaintiff of his equita
10 no1 estate in the land under the origil
ooS contract, the same process ought
tha be necessary to dispose of the sil
onS rn lar situation arising under the an
era ogous contract resulting by legal
o,, feet from the quit-claim deed g
,,st Exhibit C".
Another matter here claims our
oor tention. During the tendency of t
ond suit, Hemenway commenced an
600 tion at law in the circuit co
,oH against Miles upon the accounts
,aH the Chambers Hardware comps
'"'' and the note of the First Natio
Bank of Eugene against Miles, al
-