delivered the opinion of the court.
The lease under which the defendant retained possession of the building was. executed by Leo Friede and N. D. *595Simon, the owners of the premises to T. J. Milner and his wife, the defendant herein, whereby the lessees were to retain the property for a term of four years from December 1, 1906, upon payment on the first of each month of $350 for the first and second years, and $400 a month for the third and fourth years. An option was granted to continue the term for another year at $450 a month. The demise stipulated that the lease should not be assigned, and the lessees covenanted to execute a mortgage upon certain real property which they owned in Multnomah County as security for the payment of the rent reserved.
In the contract executed by plaintiff, it is stated that the lease of the premises was then owned by the defendant. The attorney who prepared the contract for execution testified that without being informed in relation to the matter, and supposing that Mrs. Milner was the sole lessee of the premises, he made a written statement to that effect in the agreement. This declaration was not intentionally false, and plaintiff did not sustain any damage by reason thereof, for the testimony shows that, though the lease prohibited an assignment of any interest therein, the lessors were at all times ready and willing to consent to a transfer to him of the defendant’s estate, or any part thereof, when he furnished a satisfactory undertaking, as agreed upon, that he would pay the rent as it matured, which bond he never obtained.
The plaintiff testified that Mrs. Milner represented to him, when he was negotiating with her for an interest in the property, that the net proceeds of the business was $300 or $400 a month. When the first monthly statement rendered showed that the remainder, after paying all disbursements, was only $191.31, Mrs. Milner denied that she made such representations, saying that she informed plaintiff that no books had been kept, wherein were noted the receipts or payments, but that all disbursements were *596evidenced by checks drawn on a bank, the stubs of which were retained; that in order to disclose the expenses of the business she showed these stubs to him, and he examined them for several hours.
• Mrs. Isabell Kragner and her sister, Chrissie Brown, severally testified that Mrs. Milner represented to her that the net income from the lodging house was $300 a month. If the testimony of these witnesses could be considered as corroborative of plaintiff’s sworn declarations, their affirmations are rendered valueless by evidence of the plaintiff’s influence over them, and by their apparent interest in his affairs. Without further commenting upon their testimony or adverting to the motives that seemed to prompt it, we are satisfied that in this case their evidence is unworthy of belief.
When plaintiff, as a witness, was cross-examined, the foundation for impeaching testimony was properly laid, and he thereupon denied that he made the statements imputed to him. To contradict his testimony in this particular, A. F. Flegel, who prepared the contract in question, testified that while the parties were negotiating the plaintiff called upon him, saying:
“I talked with Mr. Cannon about the details of the agreement, and I got practically all the information from him from which the agreement was drawn. I remember very particularly about talking to him about the profits that could be made from running the house, and Mr. Cannon said that Mrs. Milner was not making anything out of the place; that she was not running it right, and didn’t know how to run it; and he would make a good thing out of it, he was satisfied, and it was good property.”
It will be seen that Flegel’s sworn declarations do not fix the sum of money which Cannon regarded as a sufficient monthly income to be derived from a careful management of the business. The plaintiff may have thought that $300 a month was not adequate. Though such conclusion is possible, we believe a general view of the whole *597testimony of the plaintiff and his witnesses does not carry that degree of conviction that the testimony of the defendant and her witnesses affords.
It appears that Cannon paid $25 more than his share of the rent due for October, 1909. Some controversy exists as to whether or not such excess was given in lieu of furnishing the bond required. However, this may be, it is unimportant, for the payment having been made after the contract was executed cannot invalidate the original agreement. That payment was a proper matter to be considered, and the trial court decreed a credit therefor in case the plaintiff paid the remainder of the purchase price, his share of the rent and of the expenses, within the time limited.
We conclude the decree was correct; but, since its enforcement has been delayed by the appeal, the plaintiff will be allowed thirty days after the decree herein becomes final to comply with the terms imposed, and if he tenders into court the remainder of the purchase price and interest, one-half of the monthly rent and interest thereon, and also the compensation of a person who would have performed the service he could have rendered, and was required to furnish, he will be entitled to an accounting as a partner in the business, and become the owner of an undivided half of the personal property involved, including an assignment of an interest in the lease. In case he does not make such tender within the time prescribed, the defendant’s equitable lien upon such property will be strictly foreclosed, and plaintiff will be barred of all right, title, or interest therein or thereto.
It follows that the decree should be affirmed, and it is so ordered. Affirmed.