Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-16

iASHb " u dusleI an UNDIVIDED
half interest in and to the leasehold
estate in the premises of which she
was the sole owner; that she was
lawfully empowered to assign her in
terest or to sublet the same or anv
part thereof: that for the purpose of
further persuading plaintiff to ac-
cede to the terms of the contract, the
defendant falsely and fraudulently
represented to him that the monthly
gross receipts from the building, for
some time prior, had been above 5000
while the net income was $500: that
relying upon such representations
and having no means of ascertaining
their falslty, plaintiff became a party
to the contract, in complying with the
terms of which he paid out $1625 as
hereinbefore stated and also the sum
OF $500 for additional furniture for
the building; that defendant had no
right to assign the lease without first
obtaining the written consent of the
lessons which she never secured nor
was she the sole owner of the lease !;
that the net earnings of the business
were not as she represented and did
not exceed 5000 a month as she we'll
knew; that plaintiff, relying on such
representations, performed labor and
services at the building to the value
of 800 and was otherwise damaged
in the sum of $4,000; that unless re-
strained defendant will commence
actions to recover the monthly in
stallments of $1O0 each as they sew
orally mature; and that plaintiff has
no plain speedy'or adequate remedy
at law.
The answer denies the material
averments of tn complaint and by
way Of cross bill alleges that at all
times stated therein the defendant
was the sole owner of all the furni.
ture mentioned and the beneficial
owner and holder of the lease and al
all times had been AID then was able
ready and willing to keep her part oi
the contract upon performance of the
other part by plaintiff; that he has
never furnished any bond as re,
quired, and that defendant has fully
complied with all the terms of the
! greement assumed by her. Tht
| equitable lien on the personal prop
erty is then set forth and stric
foreclosure thereof sought.
The reply having put in issue thu
allegations of new matter in the an
swer, the cause was tried, resulting
in a decree as prayed for in the an
swer and plaintiff appeals.
Moore, ]. The lease under whicl
the defendant retained possession o
the building was executed by Lee
Friede and N. D. Simon, the owner
of the premises, to T, ]. Miner an
his wife, the defendant herein, where
by the lessees were to retain tn
property for a term of four year
from December 1, 1906, upon pay
ment on the first of each month {
$3.50 for the first and second year
and S400 a month for the third an
fourth years. An option was gram
ed to continue the term for anothe
year at $3.50 a month. The dennis
stipulated that the lease should NJ
be assigned and the lessees GOV,
nanted to execute a mortgage upC
certain real property which the
owned in Multnomah County as s.
curity for the payment of the rel
reserved.
In the contract executed by plail
tiff it Is stated that the lease of Il
premises was then owned by the d,
fendant The attorney who prepare
the contract for execution testife
that without being informed in reli
tion to the matter and supposing tht
Mrs. Milner was the sole lessee
the premises he made a write
statement to that effect in the agre,
ment. This declaration was not il
tentionally false and plaintiff did NJ
sustain any damage by reason ther,
of, for the testimony shows tht
though the lease prohibited an a
signment of any interest therein, Il
lessons were at all times ready ar
willing to consent to a transfer
him of the defendants estate or ar
part thereof when he furnished
satisfactory undertaking, as agree
upon, that he would pay the rent {
it matured, which bond he never o
tanned.
The plaintiff testified that Mr.
Milner represented to him, when
was negotiating with her for an il
terest in the property, that the n
proceeds of the business was 5000
S400 a month. When the first mont
j ly statement rendered showed tn