Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-25
OREGON SUPREME COURT DECISIONS
Fu by Courtesy Of f. A. Turner Reporter Of the
Supreme Court

the performance Of all the conditions
imposed upon second parties by this
agreement, he will purchase, or cause
to be purchased from second parties,
the above described lands at the
agreed price of $24,000.00 cash in hand
within thirty days from the expiration
of one year from the date of sale of
said premises to second parties, upon
second parties giving first party thirty
days notice in writing of their desire
to sell under the terms of this agree
ment; and in the event of first party
making default in the payment to sec
ond parties of the agreed purchase
price Of $24,0O0.00 as above provided,
then as liquidated damages for the
failure of party of the first part to
repurchase said premises from the
parties of the second part as above
provided, the mortgage given by par
ties of the second part to party of
the first part to secure their promis-
sorry note for $7,50000, shall, together
with the debt secured thereby, become
Immediately null and void, and first
party shall forthwith cancel said note
and release said mortgage of record;
and 1t Is expressly understood and
agreed that first party, in case of his
default as above provided, shall accept
said payment of $S,S00.0O as the full
purchase price of said premises. The
mortgage of even date herewith for
$H5O0OO together with the note Sc
cured thereby, given by second par
ties to first party to insure the pay
ment of that portion of the unpaid
purchase price of said premises, are
hereby referred to and made condi-
tional upon this agreement"
At the time of the execution of the
note and mortgages the defendant
Angus addressed letter to the plain
tiff W. Hull to the effect that the
, notice clause in the agreement men
toned shall be interpreted to mean
that the notice mailed and registered
to the defendant Angus at Hood River,
Oregon, should fulfill the agreement
on the part of the plaintiff as regards
such notice. The conveyance and all
the other writings mentioned were
| executed contemporaneously and as
part OF the same transaction and the
mortgage in question was duly re-
corded in the mortgage records of
Wasco county.
The plaintiff furnished to the de-
| fendant Angus the sum of $1,50O. 90
mentioned in the agreement to be ex-
pended on the property under the
direction of Angus and he expended
1t under his own supervision and di-
rection as he deemed best and proper
The allegation respecting notice to
the defendant Angus is here quoted
in full: THAT in pursuance Of the
terms and conditions of the agreement
and the note and mortgage hereinbe-
fore described and set forth these
! plaintiffs did on the Goth day of Sep
tember, 1908, and again on the 21st
day of October, 1905 cause notice In
writing to be prepared, issued and
signed by these plaintiffs calling upon
defendant f, w. Angus to purchase
or cause to be purchased, the said
property from them as provided or
cause to be purchased, the said prop
erty from them as provided in said
written agreement and in said mort
gage within thirty (3O) days after the
2lst day of November, 1908, and offer
ing on the part of them, the said
! plaintiffs, to perform and carry out
all the obligations imposed upon them
the said plaintiffs, by the terms and
conditions Of said agreement and
mortgage
II is alleged that Angus failed and
refused to buy the property at $24,-
10000. II is also claimed that Fer
guson, pretending to own the $500. .0O
note, has commenced an action at law
70 collect $500 claimed to be due as
interest The complaint also alleges
that Ferguson had notice of all the
conditions contained in the nota and
mortgage and II he bought at all he
1 paid nothing for the same, but took
with the fraudulent purpose Of defeat
Ing plaintiffs in their rights to have
the same cancelled The defendants
are alleged are alleged to be insol-
vent A general demurrer to the COM
plant was overruled. The defendants
stood on their demurrer, the court en-
tered decree cancelling the note and
mortgage for $7,500.00 and the de
PENDANTS appeal
Burnett, j. There are three uues-
tions presented by this record: First,
is the note in question negotiable so
as to prevent plaintiffs from urging
It's cancellation as against the defen-
dant Ferguson, or in other words, is
his title to the note such as to render
him immune against the attacks made