Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-27


may become a tenant at sufferance
are so varied that the statement that
his tenancy is of that character is a
legal conclusion only and insufficient
to raise an issue. The allegation
that plaintiff has served notice to
quit, fails to state the date of such
service so as to comply with the-sec-
ton above cited. For this reason
the judgment of the circuit court is
reversed and the cause remanded for
proceedings not inconsistent with
this opinion.
Dufur Oil Co. '. EnOs, ct al, WascO
County.
Dufur Oil Company, a corporation,
plaintiff and respondent, V. T. w.
Enos, doing business as the Pacific
Well Drilling Company; Levi Chris
man, sheriff of Wasco county, state
of Oregon and T. B. Slusher, defen-
dants, and John Marsh, defendant
and appellant. Appeal from the cir
cult court for Wasco county, Hon.
w. L. Bradshaw, Judge. Argued and
submitted July IS, 1911. B. B. Craw-
ford for appellant. (Taggart &
Crawford on the brief. B. E. Haney
for respondent. (Joseph G Haney on
the brief. Moore, j. Affirmed.
This is suit to enjoin the sale
upon execution of certain personal
property and to foreclose an equita-
BILE lien thereon. The complaint
states in substance % that plaintiff
is corporation; (2) that on June /,
1907 and continually thereafter the
defendant, T. w. Enos was and is en-
gagged in business as the Pacific Well
Drilling company; (3) that the de-
fendant, Levi Chrisman. is the sher-
iff of Wasco county; (4 that plain
tiff is the lessee of certain real prop
rety; (5) that on June /, 1907, plain
tiff entered into a contract with
Enos. as the Pacific Well Drilling
Company, whereby he stipulated to
drill for plaintiff on the leased prem
ises well of specified diameter to a
depth of 1000 feet, if practicable, at
S. linear foot, on account of which
plaintiff was to advance on drafts
with bills of lading for drilling ma
chinery attached, the sum of S2,500
as part of the purchase price of
such machinery which was to be held
by plaintiff as security for the loan.
The contract contained a clause as
follows: 1T is furtherJ understood
and agreed by and between the par
ties hereto that the oil company
shall pay and advance on the price
to be paid for such drilling a sufii-
cient amount Of money TO pay for the
labor, fuel and necessary expenses
incurred by the drilling company in
boring said WELL but not to exceed
the sum Of two and one-half (S2.50)
dollars for each foot as such well
may be bored and all sums advanced
Company on account of labor, fuel
and necessary expenses and said
sum of two thousand five hundred
(2500.00) dollars, advanced on pur-
chase price of machinery, shall be
deducted from any sum or sums be-
coming due the drilling company for
boring or sinking such well, until
such sums shall be fully repaid to
the oil company"
The agreement also provided that
the drilling company should buy all
necessary castings and drive pipes
and the oil company upon demand
would repay the purchase price
thereof with the additional freight
charges thereon.
The complaint further states in eff
feet (6) that pursuant to the con-
tract Enos, as the Pacific Well Drill
ing company, purchased and shipped
to plaintiff certain personal property.
particularly describing the articles
thereof, whereupon plaintiff paid out
as stipulated the sum of $2,500.00;
ca that no part thereof has been re-
paid, except about $500 though the
time for the payment thereof has eX-
pired; (S) that all such personal
property was placed on the leased
premises and was used by the Pa
cifc Well Drilling Company in sink
ing the well thereon until March II.
1908 when plaintiff, according to the
contract, took possession of the ma
chinery and thereafter held it; (9)
that by the consideration of the cir
cult court of Oregon for Wasco coun-
ty the defendant John Marsh as plain
tiff secured judgment against the
Oregon Drilling Company, a corpor-
alton, the Dufur Oil Company,
corporation, the plaintiff herein and
w, H. H. Dufur as defendants, for
the sum of $725 and an execution
having been issued thereon was de-
livered to the defendant Chrisman
who undertook" to levy the writ on
the personal property described in
the complaint and he claims to have
taken actual possession thereof and
threatens to sell the same and will
put his menace into execution unless
restrained; Q0) that the Oregon
Drilling Company had not at any
time any interest in or rig3t to such
personal property or any part there
of; (11) and that plaintiff has no
plain, speedy or adequate remedy at
law.
The prayer of the bill is (1) that
the sheriff be enjoined from attempt
ing to sell the property involved
herein; (2) that plaintiff be decreed
to have lien thereon: (3) that such
lien may be foreclosed and the prop
erty sold to satisfy the charges i'm
posed thereon; (4 that, after dis
charging the incumbrance, any sur
plus remaining may be paid to the
party decreed herein to be entitled
thereto; and (5) for such other and
further relief as may be equitable in
the premises.
Omitting the formal parts, the
pleading of one of the parties is as
follows: John Marsh, one of the