Oregon Lumber Co. v. Jones

• Citation: 58 P. 769,36 Or. 80
• Parties: OREGON LUMBER CO. v. JONES et al.
• Decision Date: 30 October 1899
• Court: Supreme Court of Oregon

58 P. 769

36 Or. 80

OREGON LUMBER CO. v. JONES et al.

Supreme Court of Oregon

October 30, 1899

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Suit by the Oregon Lumber Company, a corporation, against Levi and Burns Jones. Decree for plaintiff, and defendants appeal. Affirmed.

This is a suit to enjoin the prosecution of an action at law, and to establish a trust in real property. The defendants commenced an action against plaintiff, a private corporation, to recover the possession of lot 4 in section 35, township 3 N of range 9 E., of the Willamette meridian, and damages for its alleged unlawful detention, whereupon the defendant in that action filed its answer therein, and, as plaintiff filed a cross bill alleging that while it was in the exclusive possession of lots 3 and 4 in said section township, and range, the defendant Levi Jones purchased said lots from the state of Oregon and obtained a deed thereto that thereafter the defendant Burns Jones entered into an agreement with plaintiff whereby he stipulated that in consideration of the sum of $50 he would procure from Levi a deed to an undivided one-half of said lots for plaintiff; that plaintiff furnished him said sum, by which he secured said interest, but took the conveyance to himself, and refused to execute a deed to plaintiff. Issue having been joined on the cross bill, a trial was had, resulting in a decree as prayed for in said bill, from which defendants appeal.

John H. Cradlebaugh and A.S. Bennett, for appellants.

Huntington & Wilson, for respondent.

MOORE J. (after stating the facts).

The undisputed testimony shows that in the spring of 1893 plaintiff erected a planing mill and other buildings on said lot 4, since which time it has maintained a lumber yard thereon; that the defendant Levi Jones, having learned that the legal title to said lots 3 and 4 was in the state of Oregon, secured its deed thereto; that on November 13, 1895 plaintiff was indebted to the defendant Burns Jones in the sum of $136.55; that Charles T. Early, a clerk in its employ, borrowed $40, which, with $10 already in his possession, he gave to Burns, who paid the same to his brother Levi, and on the following day obtained from the latter and his wife a deed to an undivided one-half interest in said lots. Plaintiff claims that it furnished Burns said money under a contract whereby he agreed that upon the payment of $50 he would secure for it an undivided one-half interest in said lots from Levi. Defendants deny the existence of such agreement, and maintain that the money so furnished was on account of plaintiff's debt to Burns, who paid the same to Levi, in addition to the sum of $200 evidenced by two promissory notes of $100 each, as a consideration for said conveyance. It is impossible, under any theory of the case, to harmonize the testimony; and, in reaching a conclusion upon the facts involved, such circumstances must be considered as will, in our judgment, show on which side the preponderance of evidence lies. One incident which is deserving of particular attention is the fact that Early left the store at Drano, Wash., of which he had charge, ferried the defendants across the Columbia river in plaintiff's steamer to Mitchell's Point, accompanied them...