Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-31

ready to quit. 1t is true he made no
remonstrance and may have thought,
under the circumstances, that 1t was
best for Reid to engage in some 9TH
er and healthful employment, but
there is nothing to indicate that he
expected to fulfil his promise to
leave them the business after they
chose to cease to assist him and
left the burden of attending to his
interest therein entirely upon his
own shoulders.
Considered in its strongest light,
even if plaintiffs had remained with
him and labored diligently to the
end, the promise conveyed no inter-
est in the property. If he sold out
in violation of the promise, plaintiffs
might have a cause of action against
him for a breach of the contract but
no cause of suit against him as trus-
tee of the proceeds of the sale.
The alleged written contract con-
veyed no intereste in the property.
On its fact it purports to be the con-
tract of both parties, but it is signed
by only one of them. 1t purports to
be in duplicate, but neither original
is produced. 1t is unilateral in this,
that the parties of the second part,
not having signed, it, are not bound
to perform any of the acts required
of them by the terms of the instru-
ment. If Savage had experienced re-
verses in the feed business, leaving
it in such a condition that its assets
would not meet the liabilities, nei-
ther the creditors nor the personal
representatives of the Savage estate
could have compelled plaintiffs to
discharge these liabilities. They
could have pointed to the statute of
frauds and said, we did not sign this
paper and, therefore, cannot be COM
PEELED to pay Savage's debts. Where
both parties are not bound, neither
| is bound. The document is worth
| less as a substantive contract, and
plaintiffs have not declared upon it
/ as such.
We are satisfied, from the evil
dence, that, at the beginning of the
partnership, there was some intima-
ton or suggestion on the part OF
Savage that when he was through
J! with the business he would turn il
! over to plaintiffs, but it is more than
probable that his intention was pred
icated upon the supposition that
| plaintiffs would remain in the bust.
ness as long as he continued to be
connected with it; and that wheI
Reid sold his interest and withdrew
from the firm it was understood by
all parties that the promise had be
come nugatory Savage's conduct il
selling his interest in the business
indicated that he considered it as hi
own. Plaintiffs knew that he haC
sold his interest to Kruse and madt
no protest or suggestion that th
money derived from the sale wa
their money. They knew later tina
he had sold his remaining interes
and they still made no protest or re
quest that the money be secured t,
them. Their claim is, that they wer
to have the business when he wa
through with it, and he was certain
ly through with it when he sold
out entirely and withdrew therefrom
Then, if ever, they had cause o
action against him for breach of hi
contract; then was their time t
speak Instead of this they chose t
remain silent until death had scale
] the lips that alone could give hi
side of the controversy. Had the
urged this claim in his lifetime,
. would have afforded him an oppoI
, tunity of making provision for hi
: widow out of other property in cas-
he failed to establish his and he
right to the property in dispute here
, That plaintiffs should be permitte
{ first to speculate on the chances of
| favorable will, and, having receive
: all they could from that source, b
, permitted now, after years of silence
: to urge this claim, to the detrimen
( of his widow, is inequitable and sue
! laches as should not be favored in
= court of conscience.
r The decree of the circuit court
r reversed and one will be entere
$ here for the defendant.