Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-25

on delivery, and / shall insist on my
commission. Wire ratification or suit
will be brought Immediately.
CHARLES X. HENRY"
There is an additional letter from
plaintiff to defendant under date of
December 21, 1906 but as it only
quotes and amplifies upon the tele-
gram last mentioned, it is not deemed
necessary to reproduce it here. The
court also made a finding of fact as
follows:
III. On December Is, 1906. the
plaintiff received from said Frank c.
Baker and A. II. Maegley S1,000.00 on
account of the purchase price of said
real property, and as agent for de-
fendant signed and delivered to them
a receipt for said 100000 in words
and figures as follows:
Portland, Oregon, Dec. 10, 1906.
Received from Frank c. Baker and
A. H. Maegley the sum of one thou
sand (S1,000OO) dollars, as part pay
ment, and as earnest of their intention
to purchase from DR.. George A. Har-
ker, the following real property:
The north half of lot numbered six
co., and south half of lot numbered
seven 90, in block numbered three
81, to the City of Portland, being
fifty (50) feet frontage on First
street, and building thereon occupied
by Martin Furniture company. Sub
ject to an existing five-year lease of
the Martin Furniture company, at
monthly rental of three hundred
$4,000 dollars, at the agreed price of
forty-five thousand dollars ($45,-
OOO.OO), to be paid as follows:
'Forty-four thousand dollars (S44,-
OOO.OO), remainder, to be paid in cash
on delivery of clear deed and abstract
of title. 1t is hereby agreed that in
case of failure of title, or from any
other cause, said land is not delivered
free of all incumbrance by a good and
sufficient deed, the said above sum of
one thousand dollars (S1,000.O0) is to
be returned to said Frank G. Baker
and A. H. Maegley. Fifteen days al
lowed to examine abstract of title
1T is hereby agreed that the pur-
chaser is to pay all taxes or street
improvements that may be levied
against said property after date of
delivery of deed Purchaser failing
to make the payments above specified
the deposit money will be forfeited as
stipulated damages.
GEORGE A. HARKER,
BY Charles X. Henry, Agent"
'Note.-On completion of this sale
| am to pay to Maegley and Baker
five hundred dollars ($5O0O0) of my
commission to effect sale
C. X. HENRY"
On the findings the court rendered
judgment for the plaintiff, and the
defendant appeals.
Burnett, j. AS a preliminary mat
ter it is our judgment that the court
erred in allowing the plaintiff to tes-
tify and in finding as a fact the con-
struction the plaintiff put upon the
defendants letter of November 8,
1906. Under the authority of Mahon
V. Rankin, "a Ore. 32S; 1O2 Pac. sos;
lO3 Pac. SO, party or witness may
state his own intent, where the same
is material, in doing an act or making
a declaration, but he cannot testify
as to the intent of another or construe
. x.
The intent of the latter is a question
for the jury or other trier of the facts
and the legal effect of the writing is
for the court to determine
The contract in form as alleged in
the complaint has been denied by the
| answer and it is incumbent upon us
to determine whether the letters
quoted in the findings prove or con-
stitute such a contract
In the first letter the plaintiff states
that he has some prospective custom
ers for First street property and in
quires whether the defendant will sell
and, If so, upon what terms. The lat
ter might well construe this language
as the negotiation of a purchasers
broker, and treat the plaintiff as the
agent of some undisclosed buyer. 1t
I Is the plain import of plaintiffs lam
guage in the opening paragraph of
the communication.
1t is true that the plaintiff states
further to the defendant that "if Won
desire to place this property in my
hands for sale on the usual commits
sion basis, | will give it my immediate
utltUud0J
answered this letter giving his terms
as forty thousand ($40,OOO.OO) dollars.
cash which would be an apt and suf-
tlclent response to the purchasers
broker. To the suggestion about put
ting the property into the plaintiffs
hands for sale on the usual commits
sion the defendant answered, in eff
rect, that they were not putting the
property on the market. This would
certainly seem to imply that he de-
clined the offer of plaintiff to take
the property for sale. Indeed, the
plaintiff himself does not count upon
thls as contract of employment, for
he alleges in his complaint that the
agreement was made in the month of
November, 1906. That the plaintiff
considered the terms of the proposed
transaction still open is shown by his
letter of October is, 1906, in which he
asks the defendant to state his lowest
price and terms, allowing the usual
commission in the event of making the
sale The negotiations between the
plaintiff and the defendant being thus
open the defendant had a right to de-
cline to sell for S40,00000 and stated
IN his letter of October 80, 81 consider
the property a good investment at
S45,OOOOO and would not sell below
that figure BY a fair construction
such language does not amount to
mixing a price at which he would sell
the property, but only as establishing
minimum below which he would not
sell. Bearing in mind the allegations
of the complaint that the contract was