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59 Or. 447

Johnson v. Parshley

Oregon Supreme Court

Decided September 12, 1911

Oregon Supreme Court · decided 1911-09-12

<p>Bills and Notes — Cancellation of Instruments — ’Want of Consideration.</p> <p>The seller of a restaurant and a lease of the premises was only a sub-lessee. The purchaser in consideration of a future assignment gave notes to the seller to cover the deposit the seller had been required to advance on the lease. The lease was not assigned, and the purchaser resold the restaurant. Held, that" as the lease prohibited sub-letting without the consent of the lessor, and as the seller had no assignable interest in the lease, the notes given should be canceled as without consideration, and their cancellation did not depend upon a rescission of the contract of sale or on placing defendants in statu quo as to the sale.</p>

Cited by 2 later decisions — most recently November 1929

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1911-09-12

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¶1Opinion by

Mr. Chief Justice Eakin.

¶2On appeal the defendants present but two questions, viz.: (1) That by reason of respondent’s sale of the *449restaurant the appellants cannot be placed in statu quo. (2) A partial rescission of an entire contract cannot be had.

¶3It was conceded throughout the trial that the original lease stipulated that Kiesendahl shall not sublet the premises without the consent of the owner, that he was a stockholder and a managing officer of the Dragon Restaurant Company, and that the sublease was consented to by Mrs. Hamilton for that reason, and Kiesendahl testified that he was authorized by Dr. Wo to sell the restaurant, and did participate in the negotiations for the sale, and on January 7, 1909, agreed in writing with Johnson, with a view of a sale to him of the restaurant, that he was the owner of the lease of the premises, and, as Johnson was desirous of buying the restaurant and having transferred the lease to him, he would aid him in making the purchase, and that “whereas, six hundred ($600.00) has been advanced by the present owner of the said Dragon Restaurant upon the lease for the last three (3) months of the said lease; and, now in case the said Johnson shall purchase the said restaurant, and have the lease transferred to him, then and in that event he agrees to pay and return to the present owner of the said Dragon Restaurant, the said six hundred ($600.00) dollars, upon the terms and conditions heretofore agreed upon.” It was for this sum that Johnson gave the six promissory notes mentioned, and the whole negotiations were conducted and consummated upon the basis of this preliminary agreement. And it was understood between Johnson, Idleman, and defendant Parshley, acting for Dr. Wo, when -the notes were delivered that Parshley would see that the lease would be transferred the next day. The lease was not transferred. Dr. Wo had no interest therein that was transferable by him, and it was only through Kiesendahl and Mrs. Hamilton that Johnson could acquire a right to the possession of *450the premises. Therefore the notes were without consideration, and their cancellation does not depend upon a rescinding of the contract of sale, or that defendants shall be placed in statu quo.

¶4The decree is affirmed. Affirmed.

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