Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-01
Leadbetter V HaWley, MultnOmah
C0uuty.

County.
+. w. Leadbetter, appellant V. w.
p. Hawley. respondent. Appeal from
the circuit court for Multnomah
county. Hon. John b. Cleland, judge.
Argued and submitted July 10, 1911.
H. NJ. Cake for appellant (Cake e
Cake on the brief). Warren r.
Thomas and John NJ. Gearin for re-
spOrCent chamberlain, Thomas &
Kraeme- and Dolph, Mallory. Simon
& Gearin on the brieD. Burnett, d..
Reversed.
The substance Of the complaint in
this action is that about January 1,
1906, the plaintiff being stockhold-
er in the Crown-Columbia Pulp &
Paper Company and the owner OF
$4,000 OF its bonds delivered them
10 the defendant, who claimed to be
also stockholder in that company,
on the agreement that the defendant
should retain the ownership Of his
stock and vote the same as directed
by the plaintiff or would allow the
plaintiff TO vote It at all the stock
holders meetings OF the corporation
for the protection OF the interest and
holding OF plaintiff in the corpora
ton to all Of which the defendant
agreed; but that afterwards the
plaintiff discovered that the defendant
did not own any stock in the COM
pany and by reason OF his mlsrepre-
sentatlons on this subject had de-
celved and defrauded the plaintin.
The complaint further alleges that
the plaintiff has demanded the re-
turn OF the bonds but that the de-
fendapt refuses TO return them and |
now wrongfully and unlawfully |
withholds possession of the same
from the plaintiff within Multnomah |
county, State Of Oregon, to the dam !
age OF the plaintiff in the sum OF
$4,000. The prayer is for the recov-
cry OF the possession of the property, |
or In case recovery can not be had |
for the value Of the same in the sum
OF $4,000 with the damages claimed. |
The defendant denies the alleged |
fraud and the agreement narrated In |
the complaint under which plaintiff |
claims the bonds were delivered; adj
mlts the delivery of the bonds but
claims they were gift from the
plaintiff to the defendant. The re-
ply trayerses the new matter In the |
answer. AZ the close OF all the tes-
timony on motion OF the defendant |
the court directed q verdict for him
on the ground that the transaction
set out In plaintiffs complaint was
an Illegal contract. void as against
public policy. From the consequent
Judgment the plaintiff appeals.
Burnett, ] Stripped OF It's redun-
dant verblage the complaint sets out
a cause OF action in repleyln in the
detinet to recover the bonds In |
question. Conceding, without decid-
Ing, that the contract described In
the complaint and the Testimony I'm |
support thereof was contrary TO pub
lie policy, the plaintiffs right TO re-
cover depends upon two conditions:
First, the action must not be for the
enforcement of the Illegal agreement
but rather In dlsaiilrmance OF Il; and
second, the contract must at the |
commencement OF the action be We, |
In the executory stage. Whether we |
accept as postulate the position OF
the plaintiif that he ws induced by
the fraud OF the defendant to surren- |
der possession OF the bonds, or adopt
the assumption OF the defendant that
the transaction detailed In the COM
plant Is Illegal TO the extent that
the court will not interfere with the
existing situation created by the par
Ties, this action proceeds In dlsaf- |
nrmance OF the alleged contract. |
The plaintlff is In court not in favor
OF his agreement but In spite OF II; |
not to enforce II but 10 be relieved |
from t. IL he were seeking to COM
pei the defendant TO vote his stock
IN particular way or 70 enjoin him |
from voting or TO recover damages
Tor tho result OF his vote 1t might be |
said that the object OF the action WIS