Beneke v. Tucker

• Decision Date: 26 November 1918
• Citation: 176 P. 183,90 Or. 230
• Parties: BENEKE ET AL. v. TUCKER.
• Court: Oregon Supreme Court

176 P. 183

90 Or. 230

BENEKE ET AL. v. TUCKER.

Supreme Court of Oregon

November 26, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Suit by John Beneke and others against G. G. Tucker. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

This is a suit to recover on a note for $1,750 and to foreclose a mortgage given as security for the debt. John Beneke and George F. Hauser, the plaintiffs, owned two lots in Portland Or., and G. G. Tucker, the defendant, owned a 10-acre orange grove in Los Angeles county, Cal. The two lots in Portland were free from liens and charges, except a street assessment amounting to about $350. The California tract was incumbered with two mortgages, one for $4,000 and the other for $3,600.

On March 13, 1913, Beneke and Hauser entered into a written contract with Tucker for the exchange of their respective properties. The contract fixed the gross price of the California tract at $13,000, and therefore the "equity" owned by Tucker amounted to $5,400. The writing states that $7,500 is the gross price of the Portland lots, but that the net price, after deducting the $350 street assessment, amounts to $7,150. The contract required Tucker to deed the California property to Beneke and Hauser, and they (Beneke and Hauser) agreed to assume and pay the two mortgages incumbering the property. Beneke and Hauser agreed to deed the Portland lots to Tucker, and the latter stipulated that he would assume and pay the street assessment. The contract also contained a provision obligating Tucker to give his note to Beneke and Hauser for $1,750, the difference between $7,150, the net price of the Oregon lots, and $5,400, the "equity" remaining in the California tract, and to secure the note with a mortgage on one of the lots. The written contract was carried out, and Tucker took possession of the Portland property, and Beneke and Hauser entered into the possession of the California tract. The note is dated March 27, 1913, and is payable two years after date, to the order of Beneke and Hauser, with interest. The interest was regularly paid until the note matured on March 27, 1915, but no further payments were made after that date on the interest, and no part of the principal was ever paid, and on September 11, 1916, the plaintiffs commenced this suit.

The complaint is in the usual form, and prays for a judgment for the amount due on the note, together with $250, alleged to be a reasonable attorney's fee, and costs and disbursements and for a decree foreclosing the mortgage.

The answer, which was filed on October 18, 1916, admits the execution of the note and mortgage, denies that plaintiffs are entitled to the sum of $250, or any other sum, as a reasonable attorney's fee, and contains three further and separate defenses. The first defense is at the most only an epitome of the second separate defense, and for that reason may be laid out of the case. The second defense in substance charges that the plaintiffs fraudulently represented to the defendant, who lived in California and had no knowledge of the Oregon property, that the Portland lots were worth $7,500, when in truth their value did not exceed $2,900, and that each lot had a frontage of 100 feet, when in truth the frontage of each lot did not exceed 50 feet; and the defendant therefore alleges that the note and mortgage were entirely without consideration. For a third defense,

"and as a plea in bar to this action, defendant alleges: That there is now pending on appeal in the Supreme Court of the state of California an action for damages against the above-named plaintiffs, in the sum of $4,600, on the facts heretofore alleged."

The answer concludes with a prayer that this suit be stayed until the determination of the action pending in the Supreme Court of California, or, if a stay is denied, that the mortgage be adjudged fraudulent and void, and that it be canceled.

The plaintiffs demurred--

"to the answer and cross-complaint of the defendant on file herein, for the reason that it appears upon the face of said answer and cross-complaint that there is another action pending between the same parties, for the same cause, and upon the same facts as set forth in defendant's answer and cross-complaint."

The trial court sustained the demurrer. The defendant refused to plead further, and subsequently, on March 20, 1917, the court entered a decree which, after reciting the refusal of the defendant to plead further after the demurrer had been sustained awarded a judgment against the defendant for $1,750, with interest, together with costs and disbursements and provides for the foreclosure of the mortgage. The defendant appealed.

George S. Shepherd, of Portland (H. A. Barclay, of Los Angeles Cal., and Willametta McElroy, of Portland, on the briefs), for appellant.

George R. Alexander, of Portland (Benson & Benson, of Portland, on the briefs), for respondents.

HARRIS, J. (after stating the facts as above).

The demurrer was directed against the answer as a whole, and the ruling of the court was evidently predicated upon the theory that the action pending on appeal in the Supreme Court of California barred the second defense relied upon by the defendant. The Code specifically provides that "another action pending" is a ground for demurrer when a complaint discloses that another action is pending between the same parties for the same cause, and when not appearing upon the face of the complaint the objection may be taken by answer. Sections 68 and 71, L. O. L. These two sections of the Code are also applicable to suits in equity. Section 395 L. O. L.; Crane v. Larsen, 15 Or. 345, 15 P. 326. These statutory provisions do not, however, change the nature of the plea of "another action pending"; for now, as before, the plea is in...