Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-26

final, was filed by defendant, and
this motion is first insisted upon.
There is no doubt that defendant, BY
his motion, sought to obtain a final
Judgment, and both parties as well
as the court considered that the
Judgment rendered was such. The
recitals therein disclose a case ripe
for judgment and it was only a
clerical omission that it did not
state that the case be dismissed. If
defendants counsel did not draw the
entry it was his duty to see that 1t
was correctly entered, and he has
treated it as a final judgment until
filing this motion, and he should not
now be heard to question its form.
And we are justified in recognizing
it as final and the motion is denied
The contract was evidently drawn
by layman who did not understand
the technical meaning of some of
the terms he used. By the contract
the first parties are made liable for
'one-half of the difference between
the existing rate and any reduction
that may be made. The existing
rate is not alleged, hence the differ
ence cannot be computed, but prob
ably it was intended to require pay
ment of only half of the amount Of
the reduction, but it is not so stated.
Neither does it fix the time within
which it is to be performed, but in
cludes all future reductions in
rates.
The first ground of the demurrer
is, that there is non-joinder of
defendants, defendant insisting that
the contract is Joint. The same in
accuracy in the contract appear as
to the joint and several liability of
tory clause is that they promise to
pay to the second party one-half the
difference between the existing rates
and the reduction in freight on all
the grain raised by all of the first
parties, clearly a joint promise to
pay the liability created by the con-
tract. But the next clause is that
they and each of them agree to
make such payment, thus clearly
making it joint and several prom
Use, each of the signers binding him
self to pay the whole liability. Be
fore the contract was signed the last
clause was inserted, which limits
their liability by stating in substance
that each shall be liable for one
half of the difference between the
old rate and the reduction on his
own crop only, thus making 1t a
several contract and not joint. In
constituting such contract it should
be taken by the four corners and the
intent of the signers gathered there
from, if it is possible to do so, giving
due consideration to every part
thereof. In Lachmund v. Lope Sing,
54 Ore. 106, Ill, it is said, that
"the contract must be construed to
effect the intention Of the parties as
gathered from the entire instru-
ment; and, If there are repugnant
clauses, they must be reconciled, if
possible. The intent, and not the
words, Is the essence of every agree
ment, If it can be ascertained there
from" No layman could read this
contract with any other under
standing than that one signing it
would be liable only for the amount
computed on his own crop, and 1t Is
our duty to construe it as it was in
tended by its signers, If possible TO
do so without doing violence to any
of its terms.
This last clause is not as counsel
for defendant urges, a subsequent
agreement among the parties of the
first part alone, but it is a part of
the contract "by and between the