Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-21


tercourse errors were committed.
The letters chiefly relate to argu-
ments adduced by the respective
parties for and against the payment
of the loss produced by the fire and
the reasons for and effect OF not
making proof Of loss within the
time prescribed. The reasoning thus
set forth could as well have been
orally made by counsel at the trial
as was probably done, and any state
ment of fact contained in the letters
could have been detailed by wit
nesses called for that purpose. The
letters, in our opinion, were mad
missable and no errors were com
mitted In refusing to receive them.
The plaintiff testified that soon af-
ter John c. Fox visited Mt. Angel
and conferred with him regarding
the loss; that lists of the furniture
burned were made out by each and
compared to see that they were iden-
tical; and that the general agent
took one of the schedules while the
witness retained the other. There
was then received in evidence, over
objection and exception, plaintiffs
exhibit "B" consisting of two sheets
Of paper on the first Of which was
written with a pen: Statement OF
the fixtures and the amount allowed
by Mr.. Fox while here" Immedi-
ately below appears a list Of arti-
cles Of furniture and the respective
values thereof aggregating SSS4.55
At the foot of the page the following
memorandum appears "Mr. Fox al
lowed on the above S44227 claiming
that they would only be worth halt
on account of being used and second
hand at the time of the fire" The
second sheet is entitled: Copy Of
list of fixtures as taken by Mr.. Fox
and price allowed by him. here fol
lows a duplicate list of articles Of
furniture and the value thereof as
stated on the first page.
On cross examination plaintiffs at.
tention was called to exhibit "B" and
he stated upon oath that such lists
were copied by him in ink from a
schedule which he made with lead
pencil, and referring to the sheet Of
paper which contained the memoran-
DUN of the sum allowed by the gen.
eral agent defendants counsel in.
quired you and Fox sat down to.
gether, now, didn't you?" A. "Yes
sir" @. And you made lead pencil
copies of all these things here?" A
Eyes, / copied it with ink after.
wards" @. "And after Fox went
away you copied it in ink?' A
COPIED mine, and he had his with
him. think maybe that is the way
1t is Defendants counsel there
upon moved to strike out the ex.
hibit on the ground that It con.
tanned self-serving declaration
Plaintiffs counsel, resisting the mo.
tio1, inquired of their client: RE.
ferring to the second page of exhib-
1t "B" was that made out at the
same time that the first page was?'
and the witness replied: "No Sir
Q. When was that made out?" A
This was made out at the time Mr.
Fox was down there at Mt. Angel
adjusting the matter" Q. an his
presence?" A. Eyes, sir, right be.
fore him." Q. "And that is the one
that you kept?" A. Eyes sir / SEN
the top page to Mr.. Cake" (his at
| tOrney).
The court having refused to strike
out exhibit "B" 1t is asserted by de
fendant's counsel that an error was
committed. 1t will be remembered
that the exhibit consists of two
sheets Of paper, the first of which
had been prepared by plaintiff an(
sent to his attorney and was mad
missable, but as the motion t
strike cut assailed the entire piece
of evidence, one part of which wal
admissible, no error was committed
in denying the request.
1t Is contended that an error wal
committed in permitting the plain
tin, over objection and exception, t
testify, in substance, that pursuan
to agreement with Mr., Fox he sent
In proper time, a schedule of tn,
goods in the store when 1t burned, al
near as he could recollect, a COPY O
which list was received in evidenc,
containing items respectively valued
amounting to $1S309O; that Fo,
promised upon the receipt of sucl
inventory that he would prepare ant
send to the witness formal proof O
loss, but neither he nor the defen
dant had ever complied therewitl
and that such failure occasioned tn,
delay In making other proof which
was not submitted until March, 1909
The policy issued to plaintiff con
tanned on the face thereof claus,
to the effect that Il was subject II
all the stipulatlons and condition,
printed on page two thereof. "anr
NO otlicer, agent or other representa-
i've OF this company shall have now
er to waive any provision or conditior
OF thls policy except such as. by tn,
terms OF this policy, may be m,
subject OF agreement endorsed here.
on or added hereto; and as to snct
provisions and conditions. no officer
agent or representative. shall h,
deemed or held to have waived sucI
provision or condition, unless snct
waiver, II any, shall be written nnor
OF attached hereto, nor shall an,
privilege or permission affecting m,
insurance under this policy exist n,
ne claimed by the insured unless 81
written or attached" The condi
uons referred to provided in sub.
stance, that the policy should h,
Void II the insured concealed n,
hsrepresented any material fac
concerning the insurance; or II h,
theh had or thereafter Procured any
olher insurance upon the propertv
OF upon renewal of the policy h m,
hazard We're increased withon,
knowledge OF the company. Thess
are the cnly express Stimulation.
whereby the contract of Insurance
might be rendered Intellectual
/ InN TDllpWiRg a,