Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-25
Hull ct al. '. Angus and Ferguson,
Hood River County.
Decided October h. 1911.

Decided October II, 1911.
William Hull, Kate W. Hull, Elmer
w. Sweany and Esther NJ. Sweaney,
respondents, v. F. W. Angus and j.
II. Ferguson, appellants. Appeal from
the circuit court for Hood River
county. Hon. W. L. Bradshaw, Judge.
Argued and submitted October 4, 1911.
A. j. Derby and Ernest G. Smith for
appellants. Moulton & Scobey and e.
c. Bronaugh for respondents. Bur-
nett, j. Reversed.
The substance of the complaint in
this suit is that on November 81, 1907,
the defendant Angus conveyed certain
real property to the plaintiffs for the
purchase price of $16,3OO.OO OF this
100000 was paid in cash and for
$1,S00.00 thereof the plaintiffs gave
their note and mortgage securing the
same, the validity of which is now in
dispute. For the remaining S7500.00
they gave their note in words and
figures as follows:
"$750000.
Portland, Oregon, Nov. 21, 1907.
Ten years after date, | promise to
pay to the order of f. w. Angus
seven thousand five hundred dollars,
for value received, with interest from
date, payable annually, at the rate of
seven per cent per annum until paid,
principal and interest payable in U.
5. gold coin at the First National
bank, Hood River, Oregon; and in case
suit or action Is instituted to collect
this note, or any part thereof, prom
ise to pay such additional sum Of
money as the court may adjudge rea-
sonable as attorneys fees in said suit
or action This note is given as a
part Of the purchase price of real
property and is secured by mortgage
of even date herewith, and is subject
to all the terms and conditions of said
mortgage. This note may be paid at
any interest paying date"
For the purpose of securing this
note the plaintiffs gave their mort
gage upon the real property which by
its terms was made junior to the
mortgage for $1,S00.00. The Junior
mortgage contains the following
clause.
An agreement contemporaneous
with this mortgage and note has been
entered into between the mortgagors
and the mortgage, whereby It is pro-
Vided that II the mortgagors shall,
within one year from the date hereof
tender to the mortgagee written
option to purchase from the mort
gagors herein the premises herein de-
scribed, for the sum of twenty-four
thousand dollars cash in hand the
mortgagors will accept the note here
by secured as n part OF said cash pay
ment to the amount of said note, prin-
clpal and interest accrued; but II the
mortgagee shall fail TO accept said
option and complete the purchase of
said premises from the mortgagors
within thirty days after the expiration
or one year from the date hereof, then
ss liquidated damages for the failure
OF the mortgagee to take up said op-
ton and purchase said property from
the mOrtgagors, the note hereby Sc
cured shall become and be null and
void, an d shall forthwith be cancelled
and surrendered by the mortgagee Ia
the mortgagoEs, and this mortgage
shall at once be released of record
by the mortgagee, Said agreement Is
hereby referred to and expressly made
condition Of this mortgage"
The agreement referred to was exc
cuted by the defendant Angus as party
of the first part and the plaintiffs
herein as parties Of the second mart
This agreement after reciting the
conveyance OF the land. and the exc
cution OF the two mortgages already
mentioned, proceeds thus
Whereas, first party has represent
ed to said second parties that said
premises will be worth the sum OF
S2400000 one year from the date OF
sale thereof to second parties. pro-
Vided second parties shall expend the
sum OF $l,50000 thereon In clearing
same. under the supervision and direc-
ton of first party, without further
cost or expense TO second parties;
said sum OF fifteen hundred (s1,5OO)
dollars 10 be paid by parties of the
second part upon the completion OF
work. and
Whereas, second parties have re-
lied upon such representations as true
and valuable consideration moving
to them in said transaction above
mentioned;
Nov therefore. the party of the
first part does hereby agree with the
parties OF the second part. that upon