Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-13

form that agreement, The plaintiff
maintains that although her hus-
band made a deed purporting to
convey his interest in the property
to her and placed it upon record,
still the deed did not operate to
convey any interest in the land to
her because it was not delivered. 1t
is not necessary, however, to consid-
er this question. 0pholia Ferrey
did join in a deed with her husband
conveying the property in question
to the plaintiff and this deed was
rendered in performance Of the con-
tract in question. Furthermore, it
appears in the record as part of the
evidence in support of defendants
case. She thus equipped her hus-
band with all the means of per-
forming his contract with plaintiff so
far as she was concerned. The
plaintiffs vendors, by this act of
Ophelia Ferrey and the conveyances
from the heirs of w. E. Baines with
their wives and husbands, were thus
in situation specifically to perform
the contract for the sale of this
property. So far as the abstract was
concerned, they could have placed
these deeds upon record and had
the abstract brought down to the
date of the tender, after paying the
taxes mentioned. During the nego-
tiations aobut the matter it was
agreed that the plaintiff should pro-
cure a quit claim deed from John
La Torres, the husband of Rose
Baines La Torres, at an expense not
exceeding 800 and that the plaintiffs
vendors would assume one-half the
expense. The plaintiff did secure
that quit claim deed from La Torres
at an expense of $100 We are of
the opinion that the plaintiffs ven
dors, not having offered full per-
formance of their contract, could
not rescind and that plaintiff is en-
titled to a decree for specific per-
formance, so far as his vendors can
perform, although they might not be
able to perform in full. Thompson
v. Hawley, 16 Or. 251; Eppstein v.
Kuhn, 10 L. R. A. IN. S. III; Melin
v. Woolley, % L. R. A. IN. 81 sos.
1t remains to consider the uues-
ton Of attorney fees provided for in
the contract There is Testimony on
the part of the plaintiff in the form
or opinion evidence to the effect that
as much as a thousand dollars
would be reasonable fee for con-
Quoting the suit, but it is still for
the court to judge what is reasona-
BILE, for expert testimony is only
illustrative. Consequently, in this,
as in all other equitable proceed
ings, the court will consider the
whole situation in determining such
question. Under all the circum-
stances of the case, without further
discussion of this feature, the court
will fix as reasonable attorney fee
the sum of $420, that being 10 per
cent on the purchase price. The
plaintiff is entitled to an abatement
of the purchase price in the sum of
500 for the acquisition of the deed
from John La Torres; for the further
sum of S3O.96 taxes for the year
1905; and for the further sum of
S42O, as attorney fees.
The decree of the court below will
be reversed and one entered provid-
ing that the deed from E, E. Ferrey,
Ophelia Ferrey, his wife, George w.
Ferrey, Bertha A. Ferrey, his wife,
and H. C. Wright, heretofore ten
dered by plaintiff and now in evil
dence in this case, be taken from the
files and delivered to the clerk of the
circuit court for the plaintiff, leav-
ing here in it's place a certified copy
thereof; that the defendants, the
vendors of plaintiff, with 10 days af-
ter the filing of the mandate of this
court in the circuit court, be re-
quired to deposit with the clerk of
that court for the plaintiff a deed
from the administrator of the estate