Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-26

agitation set on foot by the said
party of the second part, his agents,
servants and employees, or from
proceedings instituted by the said
party of the second part for such re-
duction or from any other cause.
The said party of the second part in
consideration of the covenants and
agreements hereinbefore set forth to
be kept and performed by the said
parties of the first part hereby prom
ise to commence an agitation for the
reduction of existing freight rates on
grain from said territory and from
other points to Portland, Oregon,
and prosecute with diligence and to
institute such proceedings before the
State Railroad Commission of the
State OF Oregon, or in the courts of
said state as said party of the sec
ond part shall deem necessary and
proper for the purpose of securing
such reduction in said rates and to
hire all lawyers, agents, servants and
employees as he may deem proper at
his own expense to conduct such
agitation and such proceedings.
1t Is however mutually understood
and agreed by and between the
parties hereto that the said parties
of the first part shall not be deemed
sureties one for the other upon this
contract.
Name Postoffice:
George Peebler, Haines,
Byron Vandecar. Oregon.
Plaintiff alleges fulfillment of the
terms of the contract on the part of
Peebler, and that on September 80,
1909, the Railroad Commission, as
"a result of a hearing had upon Case
No. 1872 mot one filed by Peebler-
in the presentation of which he aid
ed, ordered a reduction in freight
rates on grain from points in Baker
County of 35c per ton; that defend
ant raised about $50 tons of wheat
for sale in the year 1909, the reduc-
tion of freight on which, as a result
of the order of the railroad COM
mission, if that had been the pro-
vision of the contract, would be $63.
And plaintiff asks for judgment of
one-half of that amount.
Defendant demurred to the COM
plant for the reason that there is a
non-joinder of parties defendant and
that the complaint does not state
facts sufficient to constitute a cause
of action. The demurrer was sus-
tanned and plaintiff declined to plead
further. Thereupon on February
13, 1911, the court rendered judg-
ment for defendant as follows. up
on motion for Judgment in favor of
the defendant for his costs and dis
bursements in this court and in the
lower court, and it appearing to the
court that on the 14th day of Decem-
ber, 1910, an order was duly made
and entered herein sustaining de-
fendant's amended demurrer to
plaintiffs second amended COM
plant filed herein. And it further
appearing to the court that plaintiff
has failed to file another amended
complaint or in any manner moved
herein and that no objection being
interposed at this time. 1t is, there
fore, considered ordered and ad-
judged that the defendant have and
recover of and from the plaintiff his
costs and disbursements and his
costs and disbursements in the lower
court and that execution issue there
for"
Plaintiff appeals.
EAKIN, c. ]. The transcript on
appeal was filed March IS, 1911,
and after the briefs upon the appeal
were filed, on April 20, 1911. a mo-
tion to dismiss the appeal for the
reason that the judgment is not