Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-17

swer the cause was tried resulting in
a verdict and judgment for plaintif
as demanded and defendant appeals
Moore, ]. 1t is maintained that
errors were committed in admitting
evidence. over objection and excep-
ton. certain letters written by plain
tiff TO its attorneys in Portland re-
specting their demand and in per-
mitting, in the same manner, Gus Z.
Moser. one of the attorneys, to testi-
fy concerning such letters, In order
to render the assignments Of error
comprehensive it is proper to state
the facts involved herein. About
Nav. 1904, the defendant became a
stockholder in a corporation known
as the Croffut McAyeal Company
which about November 1st of that
year re-incorporated as the Western
Mill Supply Company when he was
| chosen its secretary and manager.
An action was commenced against
/ the latter corporation and on Janu-
airy %, 1905, all property in its pos
! session was attached, except certain
chains and other hardware which had
been shipped by plaintiff to the Crof-
| fut McAyeal Company and to its sue
| cessor to be sold on commission and
/ the net proceeds arising therefrom
4 to be accounted for monthly. When
/ the property was attached there was
due plaintiff from the Western Mill
Supply company on account of sales
previously made $62S.S3 and there
after defendant without authority
| sold quantity of such chains.
About March 2, 1905, Mr.. Moser hav-
ing for collection the sum so stated
visited the defendant who delivered
him a draft for S229.40 which sum
was credited on the Indebtedness of
the Western Mill Supply Company
disCharging all thereof except the
following items reported Janu2$1 "a
1905, S156.14, S11S.71 S59.2S, and
$3.50 The defendant on March
22d of that year also paid Moser
S156.14, the amount of the first item
April 18th following he paid the at
torney S1245S, the sum of the last
two items; and on June %, 1905. he
paid the same person $11S.71, the
amount of the second item after
plaintiff had written him that he
would not be consigned any more
merchandise for sic.
Between January %, 1905, nd NAV
1st of that year defendant sold cIlan.
titles of plaintiffs merchandise val.
ued at S1O91.91 and made payments
on account thereof, leaving due
$7247S.
Immediately upon the attachment
of the property of the Western Mil
Supply Company it became bankrup
and plaintiffs demand against it O.
S62S.S9 having been duly established
the entire dividend received there
from was 5000 which sum consti
tutes part of the payments fol
which credit was given on defen
dant's account
The defendant testified that about
July /, 1905, plaintiff took from hin
all its merchandise and delivered it t
others, detailing the elements anC
amounts Of damages sustained there
by and stating that in consideration
of his payment of the sum of $62S. 8:
due from the Western Mill Supply
Company, for the discharge of which
he was not personally liable, Mosel
agreed with him, on behalf of plain.
tiff, that he should have the solt
agency for the sale of its merchan.
disc and from the commissions which
he might receive he stipulated to pay
the old account.
Moser, as plaintiffs witness testi.
fed in rebuttal that he never repre.
sented to defendant that he was an.
thorlzed to enter into any contrac
on behalf of his client and that tht
collection of its debt was the meas
ure and extent of his authority. H,
admits, however, that he promised t.
recommend defendant to plaintiff al
a suitable person as it's agent AMI
: wrote a letter to that effect. In re
terring to certain letters received
from plaintiff Moser was permitted
over objection and exception. t,
state that they constituted the onl,
correspondence and instructions re
ceived, whereupon the letters wer,
received in evidence and an excep
ton to their admission allowed
Nothing contained in such communi
cations could be construed as author
izing Moser to enter into a contrac
: with any person respecting the sal,
: of its property.
Plaintiff's previous authorization
or its subsequent ratification of Mo
ser's alleged acts with full knowI
edge thereof, would compel it to civ,
defendant credit on account of III,
sales Of its property which he Of
tected after January %, 1905, of tn,
: sums OF money which he Maid I
: plaintin failed to keep or perforn
the terms of the asserted agreement
and the amount of such payment
would constitute a proper offse
: herein. The letters referred :,
showed that the attorney was nave
= authorized to consumate for ~.
: plaintiff any agreement resnectin,
, the agency for the sale of its nron
: erty and supplemented by N6ser,.
testimony such letters and his swor,
declarations were admissabla a,
tending to disproye previous author
: ization and hence no error was com
mitted in these respects. "
II the defendant was entitled >,
any eounterclaim by reason m nos =
: ment OF for damage Sustained l,
consequence Of breach Of the al 4