Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-16

the remainder, after paying all dis
bursements, was only Sl91.91, Mrs.
Miner denied that she made such
representations, saying that she in
formed plaintiff that no books had
been kept wherein were noted the re-
ceipts or payments, but that all dis
bursements were evidenced by
checks drawn on a bank, the stubs
of which were retained; that in order
to disclose the expenses Of the busi-
ness, she showed these stubs to him
and he examined them for several
hours.
Mrs. Isabel Kragner and her sis
ter, Chrissie Brown, severally testi-
fed that Mrs. Milner represented TO
her that the net income from the
lodging house was $500 a month. If
the testimony of these witnesses
could be considered as corroborative
of plaintiffs sworn declarations,
their affirmatiOns are rendered value
less by evidence of the plaintiffs in
fiuence over them and by their ap-
parent interest in his affairs, without
further commenting upon their tes-
timony or adverting to the motives
that seemed to prompt it, We are sat
isfied that in this case their evidence
is unworthy of belief.
When plaintiff, as a witness, was
cross examined, the foundation for
impeaching testimony was properly
laid and he thereupon denied that he
made the statements imputed to him.
To contradict his testimony in this
particular, A. F. Flegel, who pre-
pared the contract in question, testi-
fed that while the parties were ne
gotiating the plaintiff called upon
him, saying: 81 talked with Mr., Can
non about the details of the agree
ment and l got practically all of the
information from him from which
the agreement was drawn. l remem-
Der very particularly about talking
to him about the profits that could
be made from running the house and
Mr. Cannot said that Mrs. Miner
was not making anything out Of the
place; that she was not running 1t
right and didn't know how to run it;
and he would make a good thing out
of it he was satisfied, and it was
good property"
1t will be seen that Flegels sworn
declarations do not fix the sum Of
money which Cannon regarded as a
sufficient monthly income to be de-
rived from a careful management of
the business. The plaintiff may have
thought that $500 a month was not
adequate. Though such conclusion
is possible, we believe a general view
of the whole testimony of the plain
tiff and his witnesses does not carry
that degree of conviction that the
testimony of the defendant and her
witnesses affords.
1t appears that Cannon paid S25
more than his share of the rent due
for October, 1909. Some controversy
exists as to whether or not such ex'
cess was given in lieu of furnishing
the bond required. However this
may be, it is unimportant, for the
payment having been made after the
contract was executed cannot invali
date the original agreement. Tha
payment was proper matter to b'
considered and the trial court de
creed credit therefor in case tn,
plaintiff paid the remainder Of tn
purchase price, his share of the ren
and of the expenses within the tim
= limited.
: We conclude the decree was cor
: rect, but since it's enforcement ha
been delayed by the appeal, the plain
= tiff will be allowed 30 days after tn
1 decree herein becomes finel, to CON
Y ply with the terms imposed, and
: he tenders into court the remainde
t of the purchase price and interes
one-half of the monthly rent and In
: terest thereon and also the comper
satlon of a person who would hav
: performed the service, he coul
! have rendered and was required t
furnish, he will be entitled to an aC
: counting as a partner in the busines
t and become the owner of an undi
I vided half of the personal propert
involved. including an assignment {
an interest in the lease. In case h
: does not make such tender With
{ the time prescribed, the defendant
equitable lien upon such propert
t will be strictly foreclosed and plair
tiff will be barred of all right, It'll
e or interest therein or thereto.
l 1t follows that the decree shoul
D be affirmed and it is so ordered.