Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-22
Johnson V. Parshley, ct al, MultnO-
nah County.

fcI heu anu new lTldl OTueTeu.
Johnson v. Parshley, ct al, MultnO.
nah County.
Ed. Johnson, respondent, v. A. w.
Parshley, Ed. Kiesendahl, G. Leo. G..
Wo, and the Dragon Restaurant
Company, a corporation; Fred Olson
Justice Of the Peace, and Lou Wag-
ner, constable, appellants. Appeal
from the circuit court for Multnomah
county. The Hon. VIM NJ. Gatens
Judge. Submitted on brief Septem-
Der 8, 1911. Harry Yanchwlch, for
appellants. No appearance for re-
spondent. Eakin, C. J. Affirmed.
On the 9th day of January 1909
plaintlff purchased from defendant,
DR.. Wo, the Dragon Restaurant, to-
gether with the lease of the premises
-149-151 Seventh street, Portland
in which 1t was conducted, for the
sum of s35OO, and went into possess
| sion thereof at that time. Defen-
dants, f.. Kiesendahl and Parshley,
acted for DR.. Wo in negotiating the
sale. Mrs Hamilton was the owner
OF the premises, and on September 6,
1907, leased the same to Kiesendahl
for term ending April 1, 1911. On
October /, 1907, Kiesendahl sub-let
the same to the Dragon Restaurant
Company for the balance of the term.
DR.. Wo claims to be the successor in
interest to the Dragon Restaurant
Company. BY the sub-lease the les
see was required to deposit in ad-
vance 5000, equal to three months
rent, to apply as the rental for the
last three months of the lease. II
was agreed in advance of the sale
that, In case Johnson purchased the
restaurant and secured a transfer of
the lease, then he was to pay and re-
turn to the present owner of the
Dragon Restaurant the $500 In COM
Dleting the sale of the restaurant to
Johnson, he gave six promissory
notes of 800 each for the $500. The
lease was not assigned to him and
when sued on the notes, he com
menced this suit to enjoin their col
lection, and also asked to have the
sale rescinded, and he rendered back
the property Subsequently, but be-
fore the trial he filed a supplement
tai complaint, alleging that he had
sold the restaurant and asked to have
that portion of the cause eliminated
Upon the trial of the case decree
was rendered in favor of plaintiff
adjudging the notes to be void and
en1oining their collection. Defendant
appeals.
Eakin, c, ]. On the appeal the de-
PENDANTS present but two questions
VIZ: On That by reason of respond-
ent's sale of the restaurant the an
pellants cannot be placed in statu
quo, (2) A partial recession of an
entire contract cannot be had.
1t was conceded throughout the
trial that the original lease stipulated
that Kiesendahl shall not sublet the
premises without the consent of the
owner that he was stakeholder
and managing officer of the Dragon
Restaurant Company. and that the
suitcase was consented to bv Mrs
Hamilton for that reason. and Kies-
endahl testified that he was author-
ized by DR., Wo to sell the restaurant
ana did participate in the negotia-
tlons for the sale and on January 7
1909, agreed in writing with Johnson
win n view of a sale to him of the
restaurant that he was the owner of
the lease of the premises and as
Johnson was desirlous of buying the
restaurant and having transferred
the lease to him, he would aid him In
making the purchase, and that
, whereas, six hundred ($600 O0) has
been advanced by the present owner
OF the said Dragon Restaurant unon
the lease for the last three (3C
months of the said lease; and. Now
IN case the said Johnson shall pur-
chase the said restaurant, and have
the lease transferred to him. then
and in that event he agrees to nav
ana return to the present owner Of
the said Dragon Restaurant. the said
six hundred ($600.OO) dollars. mon
the terms and conditions heretofore
agreed upon"
II was for this sum that Johnson
gave the six promissory notes men
uoned' ana the whole negotiations
were conducted and consummated
upon the basis of this preliminary
agreement And II was understood
between Johnson, Idleman and de-
PENDANT Parshley, acting for DR.. Wo,
when the notes We're delivered, that
Parshley would see that the lease
would be transferred the next dav. |
The lease was not transferred Dr. |
Wo had no interest therein that was
transferable by him and It ws only |
through kiesendahl and Mrs, Hamil. |
ON that Johnson could ACQUIRE a |
right to the possession of the prem- /
ses Therefore, the notes were with |
out consideration and their cancella- /
hon does not depend upon rescind- |
ing of the contract of sale or that de-
iendants shall be placed In statu
luo' The decree is affirmed.