Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-04

though it was our property, only he
could get it back by paying the sum
that might be agreed on"
1t appears from the notice served
by plaintiff Dose upon defendants,
prior to the commencement of this
suit, that Dose offered to pay to the
bank the sum of S172S, the amount of
his total Indebtedness to the Bank
of Woodburn." Plaintiff also testi-
fies: 'If 1 paid the $500, the ware
house at Mckee would be reconveyed
to me or my wife. l could take the
Woodburn warehouse back at any
time as soon as 1 paid the $1,000 and
the interest on it."
Much of the testimony relates to
the negotiations for settlement be-
tween the bank and plaintiff during
the first part of the year of 1909. AS
that transaction was not completed,
all Of such matter may be eliminated
from the case. The Judgment be-
tween plaintiff and defendants must
be considered as though there were
no such negotiations, but this does
not release plaintiff from payment of
his debt. There was no question in
regard to the amount due on the
judgment. 1t is clear that there was
no sale or assignment of $500
thereof by the bank to John Scott,
and that this amount has not been
paid by Dose. The Endorsement by
the bank upon the judgment docket
Is only prima facie evidence of pay
ment. AS both parties testify the
$500 was never paid, and the notes
in contemplation of being given
therefor were never executed. In
regard to that there can be no ques-
tion. The credit upol The judgment
would serve for the purpose of show
ing that this amount was not as
signed to John Scott From the evil
dence, however, it appears that it
was we'll understood by the assignee
of the judgment that the $500 was
not to be sold or assigned by the
bank. But the interest of John
Scott therein is not involved in this
suit.
Plaintiff contended that Charles
Scott, his former partner, should pay
the judgment, and no doubt Charles
Scott was morally and legally bound
so to do Nevertheless there can be
no question but that plaintiff was
also morally and legally responsible
for such payment Plaintiff Dose is
a business man, and undoubtedly
when he testified that it was under
stood that when he "had no debts
with the bank" it would reconvey
the property in question, he must
liquidate all his Indebtedness to the
bank
J.: appears that the bank was car
rying Dose during all these years,
aud It is not easy to comprehend
that it would take from him, and
hold for so long time, security for
the payment of less than the whole
amount of his Indebtedness, if such
security was sufficient therefor.
From consideration of all of the
testimony it is evident that the prop
erty is held by defendants subject
to the payment of the $500 and in
terest, as we'll as the $1,000 and in
terest.
The decree of the lower court will
be modified, so as to require the de-
PENDANTS to convey the property de-
scribed herein to plaintiff upon the
payment, within 60 days from the en-
try of this decree in the circuit court,
of the following sums: $1,000, with
interest at per cent per annum
from September 1, 1908; $500, with
interest at per cent per annum
from April 4, 1909. And in the event
of defendants failure to so convey
such property, upon plaintiff depos-
iting said amounts with the clerk of
the circuit court, such decree shall
stand as and for a conveyance of the
property. In the event of plaintiffs
failure to so make such payments,
the property shall be sold upon exc
cution to satisfy the same.