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as he proposed to show, the contract rate amount of his claim, and the only matters to be as alleged by him would leave him a small, proved are the credits allowed to defendants. though substantial, margin for other ex

[Ed. Note.-For other cases, see Mechanics' penses or for profit. If the price was fixed Liens, Cent. Dig. $ 547; Dec. 'Dig. $ 277.*]

3. APPEAL AND ERROR (8 932*)-REVIEWas alleged by plaintiff, this margin would be

PRESUMPTIONS-RULINGS AT TRIAL. substantially all absorbed in payment of Where the evidence in a proceeding for the wages, leaving nothing to meet the other enforcement of a mechanic's lien is such that current expenses or to pay a profit. [2] By it cannot be ascertained how the court and the exclusion of this evidence we are of opin- plaintiff, the court in disposing of the case

jury arrived at the amount awarded to the ion that the defendant was prejudiced. will give plaintiff the benefit of the presumpIt is true that upon defendant's theory of tion that all contested questions of fact were

decided in his favor. the contract the amount of gross income left would be small; yet this does not dem. Error. Cent. Dig. $ 3782; Dec. Dig. $ 932.*]

[Ed. Note.-For other cases, see Appeal and onstrate that his version of it is unreason. 4. MECHANICS' LIENS ($ 281*)–ENFORCEMENT *able. It is not unreasonable to suppose that

-WEIGHT AND SUFFICIENCY OF EVIDENCE. the rate of wages was fixed with reference to In a proceeding to enforce a mecbanic's what the average income from the sales made lien; evidence held insufficient to support the

verdict for plaintiff. by the plaintiff during the entire season

[Ed. Note.-For other cases, see Mechanics' would justify, and hence that defendant's Liens, Dec. Dig. $ 281.*] statement was true.

5. MECHANICS' LIENS (8 239*)--AMOUNT OF [3] It is argued by counsel for plaintifr

LIEN-APPLICATION OF CREDITS. that the purpose for which the testimony was Where a subcontractor employed on deoffered was not made apparent by the offer fendants' building has had an account with the itself, and hence that the court did not com- for other buildings, he has no right to credit

contractor for work and material on contracts mit error in its ruling. With this conten- the contractor on their old account for material tion we do not agree. The evidence could which actually went into the defendants' buildhave had no other purpose than thať which ing, since the defendants are entitled to have

these amounts credited to their building, we have stated, and that it was competent

[Ed. Note.-For other cases, see Mechanics' for that purpose is apparent.

Liens, Cent. Dig. $ 421; Dec. Dig. $ 239.*] We have examined the one other assign- 6. CONSTITUTIONAL LAW ($ 248*)-ENFORCEment made by counsel, and concluded that MENT-FEES AND COSTS — CONSTITUTIONALit does not merit special notice.

ITY OF STATUTE. The judgment is reversed, and the cause fee to claimants of mechanics' liens, is uncon

Rev. Codes, $ 7166, allowing an attorney's is remanded for a new trial.

stitutional. Reversed and remanded.

[Ed. Note.-For other cases, see Constitution

al Law, Dec. Dig. & 248.*] SMITH and HOLLOWAY, JJ., concur.

Appeal from District Court, Missoula County; J. Miller Smith, Judge.

Action by F. A. Mills, as administrator of (43 Mont. 129)

the estate of W. H. Charnley, deceased, MILLS V. OLSEN et al.

against Allen J. Olsen and Fred Johnson, co(Supreme Court of Montana. March 29, partners, doing business under the firm name 1911.)

of Olsen & Johnson, and J. T. Lacasse and 1. MECHANICS' LIENS (8 147*)— PROCEEDINGS others. Judgment for plaintiff, and defend

TO PERFECT-FORM AND REQUISITES--STAT- ants appeal. Modified and affirmed.
UTES.

Rev. Codes, $ 7291, requires that a notice John M. Evans, John J. Marquette, and of mechanir's lien shall state under oath that John H. Tolan, for appellants. Harry H. it contains a just and true account of the Parsons and Albert Besancon, for respondamount due after the allowance of all credits. Plaintiff's notice of lien set forth with consident. erable detail the contract between himself and the contractor, the amount of work done, in SMITH, J. This action was begun in Miscluding extra work, the amount of materials soula county by W. H. Charnley to foreclose furnished, stated the balance claimed to be due, and also stated "that these items are cor

a mechanic's lien. After trial Charnley died, rect," and was signed by plaintiff, and bore a and Mills, as his administrator, was subjurat reciting that it was subscribed and swom stituted. In discussing the case we shall reto before a notary public. Held, a sufficient fer to Charnley as the plaintiff. The comnotice. (Ed. Note.--For other cases, see Mechanics'

plaint alleges that the defendants Lacasse Liens, Cent. Dig. $ 253; Dec. Dig, $ 147.*]

were the owners of certain lots in the city of

Missoula ; that they made a contract with 2. MECHANICS' LIENS ($ 277*)-ENFORCEMENT Olsen & Johnson to erect a building there

-ISSUES, PROOF, AND VARIANCE-MATTERS
TO BE PROVED.

on; that the latter contracted with Charnley Where it is admitted by the defendants in to do the lathing and plastering, for which a proceeding for the enforcement of a mechan. they promised to pay him at the rate of 36 ic's lien that plaintiff will testify that the items set out in the claim are correct, there is a cents per square yard; that Charnley agreed prima facie case for the plaintiff for the full | to furnish all materials used by him; that For other cases seo same topic and section NUMBER

in Dec. Dig. & Am. Dlg. Key No. Series & Rep's Indexes 115 P.-3

Olsen & Johnson should advance the money 2. The second contention is that the erinecessary to pay for materials as needed, dence is insufficient to justify the findings, the remainder of the contract price to be and that the amount found due the plaintiff paid for as the work progressed; that, if is excessive. [2] At the trial Mr. Tolan, one Olsen & Johnson could purchase materials of the defendants' attorneys, made this state. cheaper than could Cbarnley, they were to ment: “There is no doubt that the plaintiff do so, and give him the benefit of such re- will testify that the items set out in this duction in price; that they were to do all mechanic's lien are correct; that is, with hoisting of materials without expense to reference to the extra work and all about it.” Charnley, and were to pay him the reason. This statement was accepted by the court able value of all extra work; that plaintiff and opposing counsel, and makes out a pridid 17,087 yards of plastering and performed ma facie case on the part of the plaintiff extra work, all of which amounted to the for the full amount claimed by him. It is sum of $6,432.42, no part of which has been assumed in the brief of appellants that the paid except the sum of $3,740.13, leaving a amount claimed for lathing and plastering balance due of $2,692.29, for which amount is correct, and it is then said: "By this asplaintiff filed and claims a lien upon the sumption respondent would have as the total building. We shall refer to the defendants amount earned by him under the contract collectively. For answer they admitted that and for extras and the other items charged Olsen & Johnson entered into a contract in his lien the sum of $6,432.42." This with Charnley to lath and plaster the build- amount, then, was fixed at the trial, and the ing at 36 cents per square yard; alleged that only question is: What credits should have Charnley was to furnish all material and been allowed to the appellants? It will be labor, including water necessary for mixing noted that the jury returned a verdict for plaster; denied that Olsen & Johnson were about one-half the amount claimed by Charnto pay for hoisting materials, but admitted ley. It is impossible to ascertain from the that plaintiff was to have the use of the ele record what particular items of credit they vator for that purpose. They denied the allowed or disallowed. Had proper findings amount of work claimed to have been done been made in that regard, great assistance by him, alleged that the total amount earned would have been afforded this court. Appelunder the contract was $5,439.67, on which lants offered in evidence 16 bank checks they had paid in cash and materials the sum drawn by them to the order of plaintiff and of $5,960.50, being an overpayment of $520: others, aggregating $3,587.35, all of which 83, for which they demand judgment by way are now claimed to be undisputed credits on of counterclaim. Plaintiff by reply denied their account. To this statement, however, all new matter in the answer. The cause was the respondent does not agree. Charnley tried to the district court, sitting with a jury. testified that he began work about January A general verdict for plaintiff in the sum of 1, 1909, and finished about April 1st of the $1,348 was rendered, whereupon the court same year; while Olsen declared that mamade certain so-called findings of fact which, terial was delivered at the building for him instead of being of any assistance to this in the latter part of November or 1st of Decourt, are mostly conclusions of law and cember. It was agreed that plaintiff had fact, and entered judgment in favor of the performed work for the defendants Olsen & plaintiff for the amount of the verdict, in- Johnson in the fall of 1908 on two certain cluding costs and attorney's fees. From the other buildings known as the University judgment and an order denying a new trial, Library and the Deschamps'building. Charndefendants have appealed.

ley testified that Olsen & Johnson were in[1] 1. Appellants' first contention is that debted to him for work and labor on these plaintiff's notice of lien is fatally defective, other buildings, and that he gave them credin that it fails to state under oath that it it on these accounts for all moneys paid and contains a just and true account of the materials furnished by them which were not amount due him after allowing all credits. credited by him upon the Lacasse building as provided by section 7291, Revised Codes. contract. This was his general statement, As a matter of fact, the notice of lien sets repeated many times during the trial.

He forth the contract between the parties, the claimed the right to so apply the payments. amount of work done, including extra work. No effort was made to show the amounts and the amount of materials furnished, in actually due him on these other contracts. considerable detail. It gives the total amount We have never examined a less satisfacof credits or moneys paid thereon, and states tory record, and feel that a proper disposithe balance claimed to be due. It also states tion of the case would be to remand it for ""that items are correct." It is signed by a new trial, which action would be taken Charnley, and bears a jurat reciting that it were it not for the fact that Charnley is was subscribed and sworn to before Harry dead, and such a course would perhaps reH. Parsons, a notary public. We think it is sult in placing his representative at a disadsufficient. Black v. Appolonio, 1 Mont. 342; vantage. And we are also reluctant to orMcGlauflin v. Wormser, 28 Mont. 177, 72 der a new trial in view of the circumstance Pac. 428; Neuman v. Grant, 36 Mont. 77, 92 that the appellants here had it in their pow

requesting a special verdict and specific find that the amounts and dates substantially ings of fact. It is impossible from the record correspond in the two statements, with three to tell whether Charnley had any credit bal- exceptions, viz.: (a) Charnley denies that ance in his favor on either the university li- the check for $50 given on January 2d was a brary building contract or the Deschamps credit on the Lacasse building; (b) he gives building. He admitted receiving two car loads no credit for the two checks for $550 and of cement from Olsen & Johnson. As to this $350 given on January 30th and February cement, which he claims was 60 tons at $11 20th, respectively; and (c) Olsen does not per ton, he first said that he gave credit for mention the payment of $300 on January 6th. it on the university library work and the We think the $50 check of January 2d should Deschamps building. Afterwards he said be charged against the plaintiff because he that he allowed it on “this Lacasse job con- testified that the plasterers on the university tract," and still later he testified that he library and Deschamps buildings finished "did not give them credit for the amount their work on December 24, 1908, on which paid for the plaster on his job in the Lacasse date he received $50 to pay them off. He building.” The court ruled, as we under-then said that the check for $50 received on stand it, that Olsen & Johnson were enti- January 2d was given to him for the same tled to credit for the whole of it in any purpose, “just before Christmas," and finally event.

admitted that he did not know what it was Having carefully studied the evidence, we for unless it was for the plasterers on the are unable to ascertain how the court and Deschamps building, “because there is where jury arrived at the amount awarded the the plasterers were working." In view of plaintiff. His counsel offers no figures to the fact that the plasterers on the Desjustify it. Consequently, it is of no signifi- champs building had finished their work, and cance. [3] We shall therefore dispose of the that plastering on the Lacasse building had case in a manner which seems to us sub- begun, it is manifest that, if he paid plasterstantially correct, giving the respondent the ers with the check, the plasterers referred to benefit of the presumption that all contested were employed on the Lacasse building. He questions of fact were decided in his favor, made no attempt to deny that he received a

[4] Charnley testified that he had credited check for $550 on January 30th, and another Olsen & Johnson with the following cash for $350 on February 20th. When he openpayments:

ed his account with Olsen & Johnson for the 1. Balance overdrawn on previous

Lacasse building about the 1st of January, contracts

$ 380 38 1909, he gave them credit for $380.28, over2. January 9, 1909, Cash.

250 00 paid on the two other buildings; so that it is 3. January 6, 1909.

300 00 4. January 23, 1909,

clear that the sum of these two checks, viz.,

600 00 5. January 30, 1909,

282 50 $900, should be credited to Olsen & Johnson 6. February 1, 1909,

200 00 on the Lacasse contract as Olsen testified. 7. February 13, 1909,

200 00

A great deal of testimony was taken as to 8. February 20, 1909,

200 00 9. February 27, 1909,

100 00 whether the $210 check of December 16, 1908, 10. April 3, 1909,

135 00 should be charged against Charnley. He tes11. March 22, 1909,

175 00 tified, in substance, that he received a car 12. January 31, 1909, amount paid plasterer

53 25

load of cement from one Dally in Spokane, 13. January 2, 1909, amount paid

and that this check was given him by Olsen lathers

66 60 & Johnson to pay the freight thereon. He amount paid for lime.. 32 50 further said, however, that he told them 15. April 20, 1909, check..

165 00

he would not consent to be charged for ce

$3,140 23 ment any greater sum than he was obliged to Olsen testified that Charnley received the pay Dally, to wit, $11 per ton laid down in following cash payments:

Missoula. And he said he purchased this

cement at $10.50 per ton f. o. b. Missoula. 1. December 16, 1908, check for freight on plaster.

$ 210 00

He was manifestly in error in this, because 2. February 26, 1909, check.

100 00 if the cement was to be laid down in Missou3. April 2, 1909,

135 00 la, free of freight charges, there would have 4. January 2, 1909,

50 90 been no necessity for him to get $210 from 5. January 9, 1909, 6. January 9, 1909,

250 00 Olsen & Johnson to pay such charges. Olsen 7. January 16, 1909,

200 00 testified that the price of cement in Missoula 8. February 5, 1909,

200 00 varied from $14 to $16 per ton. He said that 9. January 23, 1909,

600 00 10. January 30, 1909,

550 00

a rebate of $2 per ton was allowed for the re11. February 20, 1909,

350 00 turn of the sacks, so that the net price of $16 12. February 13, 1909,

200 00 cement was $14. Again, in his account filed 13. March 20, 1909,

175 00 with his notice of lien, Charnley credited the 14. April 20, 1909,

165 00 15. April 12, 1909,

53 25

defendants with 112 tons of cement at $14 16. April 2, 1909,

66 60 per ton. Again, if the freight on 60 tons

of cement amounted to $210, the charges on $3,587 35

one ton would be $3.50, which, added to the Omitting for the moment the check for price named by Dally, of $10.50, makes $14 $210 paid for freight on plaster, we find per ton, in Missoula, which agrees with all

14.

66

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66

the testimony on the subject. This item of Deduct this amount from $6,432.42, and $210 should therefore be charged to the we have $319.99, the amount which is a lien plaintiff. The sum of the additional cash against the building. payments which we think should be charg [6] It is contended that section 7166, Reed to Charnley, as above stated, viz., $210, vised Codes, giving lien claimants an attor$50, $550, and $350, is $1,160, which, added to ney's fee, is unconstitutional. This court the amount he admitted having received ($3,- in Wortman v. Kleinschmidt, 12 Mont. 316, 140.23), makes $4,300.23. He also received 30 Pac. 280, held a similar statute valid. lime to the amount of $48.50, for which he Since that case was decided, however, the credited them with only $32.50. The bal- Supreme Court of the United States in Gulf, ance of $16 should be charged to him. If etc., R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. we accept his last statement on the subject, 225, 41 L. Ed. 666, the Supreme Court of he used 60 tons of cement on the Lacasse California in Builders' Supply Depot V. building, and gave them credit on other con- O'Connor, 150 Cal. 265, 88 Pac. 982, 17 L. R. tracts for $660. He says he credited them A. (N. S.) 909, 119 Am. St. Rep. 193, Stimwith all they furnished; but in this he is son Mill Co. v. Nolan, 5 Cal. App. 754, 91 mistaken, for the record shows that he used Pac. 262, Mannix v. Tryon, 152 Cal. 31, 91 all they delivered to him, which was 1,416 Pac. 983, Merced Lumber Co. v. Bruschi, 152 sacks. This cement at $14 per ton would Cal. 372, 92 Pac. 844, Hill v. Clark, 7 Cal. come to $991.20. As he credited but $660, App. 609, 95 Pac. 382, Farnham v. California the balance of $331.20 should be now cred- Safe Deposit Co., 8 Cal. App. 266, 96 Pac. ited.

788, Los Angeles Pressed Brick Co. v. HigLet us revert for a moment to his original gins, 8 Cal. App. 514, 97 Pac. 414, 420, and statement of account. He there gave credit the Supreme Court of Colorado in Davidfor $3,740.13, of which $3,140.23 was cash, son v. Jennings, 27 Colo. 187, 60 Pac. 354, leaving a balance of $599.90, which must 48 L. R. A. 340, 83 Am. St. Rep. 49, have have been for material; and this material held like enactments to be void. To the must necessarily have been lath and com- same effect are the decisions in Grand Rapmón lumber, as he received no other, except ids Chair Co. v. Remells, 77 Mich. 104, 43 N. as above stated. The total value of the lath W. 1006; Durkee v. Janesville, 28 Wis. 464, furnished him was $775.72, and common lumber $29.28, making a total of $805. He swore Ala. 193 ; Paddock v. Missouri Pac. Ry. Co.,

9 Am. Rep. 500; Railroad Co. y. Morris, 65 that he credited it all on the old contracts 155 Mo. 524, 56 S. W. 453; Phenix Insurbut this statement cannot be true. The difference or $205.10 is all that could have been ance Co. v. Hart, 112 Ga. 765, 38 S. E. 67; so credited. He should, then, be charged Openshaw v. Halfin, 24 Utah, 426, 68 Pac. with the value of material (lath and common 138, 91 Am. St. Rep. 796; Atkinson v. Woodlumber), which he admits in his pleadings mansee, 68 Kan. 71, 74 Pac. 640, 64 L. R. A. and testimony was a proper credit to Olsen 325; Hocking Valley Coal Co. v. Rosser, 53 & Johnson, to wit, $599.90.

Ohio St. 12, 41 N. E. 263, 29 L. R. A. 386;

Randolph v. Builders', etc., Supply Co., 106 Summary.

Ala. 501, 17 South. 721; West v. Wabash R. Cash to be credited to Olsen & John

Co., 118 Mo. App. 432, 94 S. W. 310. We

$4,300 23 Balance on lime account.

16 00

think the reasoning of these cases is unanBalance on cement account.

331 20 swerable.

In some of the states statutes Value of material admitted to be a

giving special protection to laborers and meproper credit ...,

599 90 chanics have been upheld, while in others Total ......

$5,247 33 similar statutes have been declared uncon

stitutional. We have no occasion to pass upThe difference between $6,432.42, the total amount due under his contract, and $5,- this opinion, and do not do so. Suffice it to

on the constitutionality of such statutes in 247.33, credits allowed Olsen & Johnson, is say that our statute extends the benefit to $1,185.09, or $162.91 less than the amount of the verdict. In this sum the verdict against do not come within the reason that may jus

materialmen, contractors, and others who Olsen & Johnson and the judgment against them are excessive. [5] so far as the lien tify legislation for the protection of laborers

and mechanics. is concerned, Charnley had no right to credit Olsen & Johnson on their old account for

The order denying a new trial is affirmed, material which actually went into the La- and the cause is remanded to the district casse building. The owners were entitled court of Missoula county with directions to to have these amounts credited to the build-modify its judgment against Olsen & Johning. These credits should be:

son by deducting therefrom the sum of

$162.91. The balance is affirmed. That part Lath and common lumber.. $805 00 Lime ..

16 00

of the judgment relating to the lien upon the Cement

991 20

building is ordered modified by reducing the

$1,812 20 amount of the lien to the sum of $319.99, for Add to this cash received.

4,300 23

which amount alone it is affirmed in this re

son

BY

BY

torney's fees is ordered stricken out. Each planted and harvested the 1909 crops. Held, party shall pay his own costs in this court.

that it was then too late to seek to rescind the

contract for fraudulent misrepresentations as to Modified and affirmed.

the nature of the land and the value of the

crops on it at the time of the sale, since the BRANTLY, C. J., and HOLLOWAY, J., purchaser must have known, when he harvested concur.

the 1907 crops, of any misrepresentations in relation thereto, and have been put on inquiry as to the truth of the statements as to the qual

ity of the land, and the former crops thereon. (43 Mont. 82)

[Ed. Note.-For other cases, see Vendor and OTT V. PACE et al.

Purchaser, Cent. Dig. $8 212-214; Dec. Dig.

$ 119.*] (Supreme Court of Montana. March 22, 1911.)

5. VENDOR AND PURCHASER (8 33*) - CON1. CANCELLATION OF INSTRUMENTS (8 37*) TRACT-VALIDITY - MISREPRESENTATION

RESCISSION PURCHASER-COMPLAINT VENDOR-FACTS OR OPINIONS.
SUFFICIENCY.

Statements by a vendor of land to a purA complaint for the cancellation of a conchaser that the crops on the land would sell tract of purchase of lands on the ground of for enough to meet the deferred payments, and false and fraudulent representations as to its that the crops then growing on the land were character, which merely alleges that, upon the of specified quantities and value, are mere exdiscovery of the falsity of the representations, pressions of opinion, the falsity of which will plaintiff demanded a restoration of the consid- not warrant rescission, and a similar statement eration, and offered to return what he had re- that the soil was rich and productive is generceived,' is insufficient as against a special de ally within the same rule. murrer, attacking it for uncertainty in stating when he discovered the facts, since under Rev. Purchaser, Cent. Dig. $8 40-43; Dec. Dig. $

[Ed. Note.-For other cases, see Vendor and Codes, $ 5065, prompt action is necessary on 33.*] discovery of facts warranting a rescission.

[Ed. Note.-For other cases, see Cancellation Appeal from District Court, Jefferson of Instruments, Cent. Dig. $$ 66–81; Dec. Dig. County; Lew L. Callaway, Judge. $ 37.*]

Action by Sebastian Ott against Ike E. 0. 2. VENDOR AND PURCHASER (_43*) - CON- Pace and others. From a judgment sustainTRACT-VALIDITY-RIGHT OF RESCISSION.

Where a purchaser of land on deferred pay-ing a general and special demurrer to the ments secured by pledge of collateral after amended complaint, plaintiff appeals. Aflearning of the falsity of representations by the firmed. vendors as to the character of the lands, which would warrant a rescission of the contract, ob Lewis A. Smith, for appellant. M. H. Partained from the vendors a release of part of ker and Ike E. 0. Pace, for respondents. the collateral, which he sold to meet the first deferred payment, and subsequently entered in

HOLLOWAY, J. This suit was brought to a new contract with the vendors for the purchase of the same lands on more advan- to secure the cancellation of two certain contageous terms, during all of which time he tracts and the return of certain moneys paid remained in possession of the premises, it was under them. To the amended complaint a an affirmance of the first contract and a bar general and special demurrer was sustained, to a rescission, since fraud in inducing a contract does not make it void, but only voidable and plaintiff, electing to stand upon his at the option of the injured party.

pleading, suffered judgment to be entered [Ed. Note.-For other cases, see Vendor and against him, and has appealed to this court. Purchaser, Cent. Dig. $$ 67, 68; Dec. Dig. $

From the amended complaint we gather 43.*) 3. VENDOR AND PURCHASER (8 30*) — Con Pace and Woods owned and were in posses

these facts: In August, 1907, defendants TRACT_VALIDITY-DURESS.

The purchaser of land on deferred payments, sion of some 634 acres of land near Whitesecured by pledge of collateral, who enters into hall, Mont., together with certain water a new contract with the vendor for the pur rights and water ditches, also a leasehold inchase of the same lands on terms more favorable to the purchaser, cannot claim that the terest in 160 acres of state land, and owned second contract was made by him under duress, and possessed certain personal property conwhere the only threat by the vendor was to sisting of crops then on the land, farm maenforce the provision of the original contract by which the collateral security might be for- 1 chinery, and live stock; that on August 20, feited on failure to promptly meet any of the 1907, plaintiff and Pace and Woods entered deferred payments.

into a contract for the sale of the real es[Ed. Note.--For other cases, see Vendor and tate and personal property by Pace and Purchaser, Cent. Dig. $ 34; Dec. Dig. $ 30.*Woods to Ott, for the sum of $19,500, pay4. VENDOR AND PURCHASER ($ 119*)-RESCIS- able $5,000 in cash, $4,500 in six months, $5,SION BY PURCHASER-LACHES, Land was purchased in August, 1907,

000 in 18 months, and 5,000 in 2 years, the der a contract for deferred payments, the' ven- deferred payments to be secured by the dedor representing that the land was rich and pro- posit of certain certificates representing ductive, and that the crops then growing on shares of the capital stock of the Ritzville the land were, and the annual crops for previous years had been, of specified kinds, quanti-|(Wash.) flouring mill; that the notes repties, and value. The purchaser took posses- resenting the deferred payments, the sesion, harvested the 1907 crops, made the pay-curities, and a warranty deed were to be ment due in February, 1908, in July, 1908, deposited with the Whitehall State Bank as entered into a modified and more advantageous contract for the purchase of the lands, planted, trustee for the parties; that the first payharvested, and marketed the 1908 crops, and I ment was made, and plaintiff took possession For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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