Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-20

made by the defendant Trout can
avail him nothing in this suit for the
reason that he does not state the
amount or money which he rendered
to Donaldson on the date he men
tions. To make the plea of tender
effectual the amount rendered must
be stated, because without this, it is
impossible for the court to reach the
conclusions which the pleader draws
that the full sum was rendered. The
allegation Of the answer, that the
money rendered was the full sum
due, amounts only to a conclusion Of
law. The fact of the exact amount
rendered must be stated in order for
the court to draw the same conclu-
sions that the pleader has reached in
his statement Goss V. Bowen, 104
Ind. 207; Dickerson V. Hayes, 26
MINI. 100; Knight V. Abbott, 80 Vt
577; Chase " Welch Z n. W. sos.
Moreover, the defendant Trout does
not, in his answer, give the court
sufficient data by which, the balance
due could be calculated even If his
allegation in that respect was suffi-
cient, for although he admits giving
note on the Sth day Of December,
maturing June Sth following and
that the note bears interest at the
rate Of 10 per cent per annum, he
does not state whether the note was
to bear interest from date or from
maturity Hence, If we were permit
ted to compute the sum then due
when the tender was made, as al
legged, there is not sufficient material
in the answer to enable us to reach
correct conclusion on the matter.
AS to the tender we are satisfied that
the same result must be reached
upon the merits, for although on July
%, 1909, the defendant Trout offered
in writing to pay S. ]. Donaldson
$1,069 without stating to what the
payment was to be applied and de-
manding that the certificate Of stock
be delivered up to him; still the evil
dence shows that he was not then in
position to have made good his Of
far Of Nayr,ant axap 40 q hod hnn,,
accepted. He says himself that he
had not the money and that he had
only negotiated with a friend to sup
ply him the money Even this friend
does not say that he had the money
where 1t could be Immediately fur.
nished but that he would have hat
to make further arrangements for 1t
Hence, we think that although the
writing itself may have dispensed
with, the immediate offer of the
money, in specie, yet it must have
been made in good faith and that Il
would not dispense with the defen.
dant's actual ability and readiness t
pay the money In shOrb the effec
of the conduct of the defendant TrOu
on that subject, as disclosed in the
evidence was in reality a mere pre-
tense or skirmish for advantage.
= strong presumption that the defen
dant Trout was not acting in gooC
faith when he made the offer in writ
ing is drawn from the fact that hi
has not brought the money int
court so as to keep the tender good
Conceding, without deciding, tina
an issue is raised as to the ownership
of the defendant Donaldson in 6,95t
shares of the stock in question, W,
think his ownership is sustained b!
the weight of the testimony on tn,
merits of that controversy
We think the main question in thi
case should be decided according t
the maxim that equity regards tn,
substance rather than the form. "B!
force of this principle, equity goe
behind the form of a transaction il
order to give effect to the intention
of the parties either. to aid an ac
abortive at law because formally de
fective or to impose a liability a
against an evasion by a formal con
cealment of It's true character" i
Cyc. 1874.
This general principl is further II