Beach v. Brightwood Co., Inc.

• Decision Date: 04 March 1930
• Citation: 285 P. 259,132 Or. 345
• Parties: BEACH ET AL. v. BRIGHTWOOD CO., INC.
• Court: Oregon Supreme Court

285 P. 259

132 Or. 345

BEACH ET AL. v. BRIGHTWOOD CO., INC.

Supreme Court of Oregon

March 4, 1930

In Banc.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Suit by Robert S. Beach and another against the Brightwood Co Incorporated. Decree for plaintiffs, and defendant appeals.

Affirmed and remanded, with directions.

W. B Shively, of Portland, for appellant.

L Stipp, of Portland, for respondents.

BELT. J.

This is a suit for strict foreclosure of a contract to purchase real property. The plaintiffs, who reside at Saginaw, Mich executed a written contract, dated April 7, 1925, whereby they agreed to sell certain property in Clackamas county Or., to the defendant for $2,500; $500 was to be paid "on the execution and delivery of the contract, $500 or more one year from date, $500 or more two years from date," and the balance of the purchase price on or before three years from date. Plaintiff claims that defendant has made only the following payments: $500 on March 10, 1926; $300 on August 2, 1927; and $500 on November 2, 1927. There is no dispute between the parties as to the amount of payments ($1,300). The real controversy is whether defendant was in default at time suit was commenced in February, 1928.

Upon execution of the contract, it was forwarded by plaintiffs to their agent, J. W. Draper, at Oregon City, Or. It was not executed by the defendant company until January 14, 1927. Was time of payments to be determined from date of contract, April 7, 1925, or from date of execution and delivery of the contract? If payments were to have been made from date of contract, defendant was clearly in default; but, if the time of payments be computed from execution and delivery of the contract, the suit was prematurely commenced. As stated in Oregon Railway & Navigation Co. v. E. R. Swinburne et al., 22 Or. 574, 30 P. 322, 323: "Unless there is something to indicate a different intention, a deed or instrument in writing speaks and takes effect from the date of delivery, and not of its date; but where it appears from the language of the instrument that it was intended to cover a certain period or to incur a certain liability, although anterior to its actual delivery, it will, when delivered, relate back and take effect in accordance with its terms and the intention of the parties."

In 13 C.J. 308, it is said: "* * * It is competent for the parties to agree that the contract shall take effect as of a date earlier than that on which it is executed." Looking to the contract itself we see nothing ambiguous or uncertain about the terms and time of payment. "$500, or more, one year from date" clearly means from date of contract and not from date of execution and delivery. The parties themselves so construed it, as shown by the correspondence introduced in evidence.

When the first payment was remitted, Draper, with the knowledge and consent of William L. Borthwick, secretary and treasurer of the defendant company, wrote to plaintiffs, on March 10, 1926, in part as follows: "This payment was made this morning, and I make haste to send to you. Mr. Borthwick, the other party to the contract, and I appreciate your leniency in this, and he wishes that you would allow him to make a payment of $250.00 on the 7th of next month, and the balance of the payment six months thereafter, instead of the full amount of $500.00 then."

It is noted that "a payment of $250 on the 7th of next month" would be a payment on April 7, 1926, or one year from date of contract. On March 15, 1926, E. L. Beach, acting for the plaintiffs, wrote, in response to the above letter as follows: "* * * I note what you say about the payment of $250.00 on the 7th of next month, and the balance within six months. Mr. Borthwick should not ask this favor, as we have waited one year now for the first payment to be made. These contracts were made April 8, 1925, and I hope he will make his payments as agreed upon in our...