Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-06

formation, and the grounds of his be-
lief that the absent witnesses would,
If present, testify as he says he be-
lieves they will. 1t is true the affi-
davit states that afiant bases his
statement upon letters or telegram
received by him from the alleged
witnesses upon other subjects, but
such alleged letters and kilograms
are not appended OF the substance of
them stated. While the court might
perhaps have overlooked this defect,
there was no abuse of discretion in
its refusal to do so. The original
case had been perding for several
months and it was only after the
court had refused to continue it for
the term that this suit was filed,
which was evidently done for the pur-
pose of securing, by a temporary in
junction, the same result sought by
the previous motion for continuace.
Under these circumstances it is not
a source of surprise that the court
insisted upon prompt trial. 1t
would, perhaps, have been difficult
for plaintiff, lin the original suit, to
have given an undertaking for an at
tachment and have thus secured the
final payment of his claim. A man
who has, as the complaint here al
leges, but a small amount of proper
ty, cannot find on every street corner
friends, who will go upon his bond
for $4,000, and even a corporation,
which is able to achieve an indebted
ness of $1,OOO,OOO may possibly be-
come insolvent. No doubt the circuit
court, with the whole history of this
litigation before it, considered all the
matters in arriving at it's final con-
clusion to try the case promptly.
On the merits, it appears to our
satisfaction that Brogan, the original
promoter of the Willow River COM
pany, procured the contract with
Cole for the conveyance of the land
in question with the intent to turn
over to the Willow River company
when 1t should have been legally Or
ganized; that after the organization
he assigned the contract to the COM
pany, and, by agreement between the
and Cole, +he quitclaim deed
to the property was executed in its
favor and deposited in the bank in
escrow to be delivered when the pur-
chase money was paid; that Brogan,
acting for the Willow River COM
pany, persuaded the cashier of the
bank to deliver the deed, caused it
to be recorded without Coles know
ledge or consent, and thereafter rep
resented to plaintiff that the land
was paid for.
The contention, that there was a
subsequet oral agreement that the
payments were not to be made until
the litigation between the Willow
River company and Cole should have
been settled, is not sustained by the
preponderance of the testimony.
In the first place it is not in the
course of business that
transaction, involving so large an
amount of money, and a radical
change in a written contract, should
be made verbally and without wit
nesses. in the second place the al
legged terms of the contract are i'm
probable.
Counsel frankly states in his affi-
davit for continuance that it was ex-
pected that the litigation would con-
sumo practically the entire amount of
Coles claim for purchase money. In
brief, we are asked to believe that, if
he were finally to be declared owner
of the property, its value would be
taken by the Willow River company
for attorneys fees and expenses. If
the courts decided adversely to his
claim he lost entirely. If he was not
sucked under in the Charybdis of de-
feat, he was to be swallowed to sat-
isfy the hunger of the legal Scala
for fees and disbursements.
He denies the contract and Bro
gan's letter of September s, 190S
written several months after the deed
had been recorded does not alIude