Bank of California Nat. Ass'n v. Bishop

• Decision Date: 08 July 1931
• Citation: 300 P. 1023,137 Or. 33
• Parties: BANK OF CALIFORNIA NAT. ASS'N v. BISHOP ET AL.
• Court: Oregon Supreme Court

300 P. 1023

137 Or. 33

BANK OF CALIFORNIA NAT. ASS'N v. BISHOP ET AL.

Supreme Court of Oregon

July 8, 1931

Department 2.

Appeal from Circuit Court, Polk County; Arlie G. Walker, Judge.

Suit by the Bank of California National Association, a corporation against W. J. Bishop and others. Decree for plaintiff and the named defendant appeals.

Decree modified, and, as so modified, affirmed.

Custer E. Ross, of Salem, for appellant.

Thomas G. Greene, of Portland, for respondent.

BELT J.

This is a suit for the strict foreclosure of a vendee's interest in an executory contract for the purchase of real property. On the 14th day of January, 1926, Wm. A. Macrae as trustee for the plaintiff bank, entered into a written contract with the defendant W. J. Bishop to sell 456 acres of land in Polk county, known as the Alluvial Farm, at a price of $24,879. This amount was to be paid as follows "Fifteen Hundred (1,500) Dollars on or before the 1st day of March, 1926, and Fifteen Hundred (1,500) Dollars on or before the 1st day of September, 1926, and thereafter the sum of Fifteen Hundred (1,500) Dollars on or before the first days of March and September of each year from 1927 to 1932 both years inclusive, Fifteen Hundred (1,500) Dollars on or before March 1, 1933, and Twenty-three Hundred Seventy-nine (2,379) Dollars on or before the 1st day of September, 1933, together with interest upon the deferred payments of the whole amount at the rate of six per cent. per annum to be paid at the time of making the several deferred payments hereinabove stated." The contract, so far as material herein, further provided that time was the essence of the agreement and "in case said party of the second part (vendee), his legal representatives or assigns shall pay the several sums of money aforesaid, punctually and at the times specified, and shall strictly observe and perform all and singular the agreements and stipulations aforesaid, according to the true intent and tenor thereof, then the party of the first part (vendor) will make unto the party of the second part or his heirs or assigns, upon request and upon the surrender of this agreement, a good and sufficient deed of conveyance conveying said premises in fee simple clear of incumbrances, except taxes, assessments or other liens or charges created or suffered by said party of the second part or his assigns." In the event that the vendee failed to make the payments, or any of them, in accordance with the strict terms of the contract, the vendor had the right to declare the agreement null and void and any payments the purchaser had made thereunder forfeited.

It is alleged in the complaint that the defendant Bishop defaulted in the payment of $1,500 on principal due March 1, 1930, and of interest at such time due on the whole amount of the contract amounting to $4,601.37, and that, by reason thereof, plaintiff elected to declare the whole unpaid amount of the contract as due and owing.

There is no dispute as to the execution of the contract nor the failure of the defendant Bishop to pay the installment and interest on March 1, 1930, as alleged by the plaintiff. Defendant claims, however, that the contract relative to the payment of interest did not express the true intent and meaning of the parties by requiring its payment on the whole amount due under the contract "at the time of making the several deferred payments." Defendant asked to have the agreement reformed with reference to such matter so that the interest "would be paid at the time of making the final deferred payment." Bishop...