Bottemiller v. Ball

• Decision Date: 23 July 1929
• Citation: 130 Or. 255,279 P. 542
• Parties: BOTTEMILLER v. BALL.
• Court: Oregon Supreme Court

279 P. 542

130 Or. 255

BOTTEMILLER v. BALL.

Supreme Court of Oregon

July 23, 1929

Department 1.

Appeal from Circuit Court, Gilliam County; David R. Parker, Judge.

Suit by J. H. Bottemiller against M. R. Ball, in which defendant filed a cross-complaint. From a decree for defendant plaintiff appeals. Cause remanded, with instructions.

This is a suit in which the plaintiff prays for the cancellation of a written contract under which the defendant claims the right to the possession of a wheat ranch and a quantity of personal property. November 23, 1927, the plaintiff was the owner of all the property just mentioned consisting of 1,360 acres of land in Gilliam county, together with some farming implements and live stock. Upon that day he and the defendant entered into a contract, whereby the former agreed to sell to the latter the above real and personal property for the sum of $40,000. The contract acknowledged the receipt of $100, and provided for the payment of $200 upon the execution of the instrument and a further payment of $1,500 on or before August 31, 1928; the balance of the purchase price was to be discharged by the delivery to the plaintiff, each year, of one-half of the crop. This provision, and others with which this suit is concerned, is thus stated in the contract "It is further agreed that the buyer will deliver in the warehouse to be named by the seller, free and clear of all charges or liens, a one-half of the crop raised in the years 1929, 1930, 1931 and 1932, and in addition thereto will during the said years, and before the said years, and before the same shall become delinquent, pay the taxes on all of the property, both personal and real, set out and named therein and that the buyer will further pay annually 6% interest on the amount still due and unpaid upon the purchase price named herein."

The contract provides that, if at the end of five years the defendant had paid one-half of the purchase price, the plaintiff would convey title to him, and accept four promissory notes for the balance of the debt, their payment to be secured by a mortgage upon the real property. This provision of the contract made no mention of interest. The contract also provided: "It is further agreed that the buyer shall go into possession of the said property upon the execution of this contract, but it is understood and agreed that he acquires no title thereto, nor to any part thereof either in the personal property or the real estate, and in case he should fail, refuse or neglect to carry into effect the terms and conditions as set out herein, time being the essence of this contract, that he will surrender and deliver up the said property and premises to the seller herein in as good condition as they now are, wear, tear, fire and other unavoidable casualties excepted." The contract requires that the defendant should farm the ranch in a husbandmanlike manner.

The breaches alleged are (a) failure to pay interest November 23 1928, and (b) failure to cultivate the land and operate the ranch in the agreed manner. The defenses are (1) a denial that any interest was payable November 23, 1928, (2) a denial of a failure to operate the farm in the required manner, (3) an allegation that if any such neglect occurred it was waived by the plaintiff's act in accepting the payment of $1,500.00 August 31, 1928, and the half a crop raised that year, and (4) a cross-complaint alleging defendant's investment in the farm; that the plaintiff, by filing the aforementioned suit in Multnomah county, and by various other acts of harassment, undertook to force the defendant to breach the contract and thereby afford the plaintiff a basis for recovering the ranch, and obtaining the defendant's investment in the same. Based upon these allegations the defendant alleged that it has become impossible for him "* * * to obtain the financial backing necessary to perform the convenants and conditions under said contract and that the Judge of this Court should make full and complete settlement of this contract between the parties at this time and avoid further litigation in connection with the same and that defendant is entitled to the return of the money paid on the purchase price under said contract and that the plaintiff is entitled to a lease or share of the crops raised on said premises and that this is to be deducted from damages which defendant has sustained in the sum of $5,000 and that defendant should be entitled to hold and harvest the 375 acres of land now seeded or to receive the value thereof in money and in addition thereto to receive compensation for 75 acres of disked summer-fallow which is now on said premises and for such other and further relief and orders as to the court might seem just and equitable."

November 7, 1928, the plaintiff notified the defendant that he would insist upon the prompt payment of interest November 23, 1928. November 24, 1928, he demanded possession; it was refused. The contract was recorded in the deed records of Gilliam county. No motion or demurrer was filed to the complaint. When the defendant went into possession the value of the feed, seed, and summer-fallow upon the place was approximately of the value of all the cash he would pay the plaintiff, $1,701. A crop is now maturing upon 375 acres from seed planted by the defendant, but the present summer-fallow was plowed by a receiver at the plaintiff's expense.

The decree was in favor of the defendant; the plaintiff appealed.

T. A. Weinke, of Portland, for appellant.

J. D. Weed, of Condon, and Homer D. Angell, of Portland (Angell, Fisher & Sabin, of Portland, on the brief), for respondent.

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

We shall first consider the controversy in regard to interest. The plaintiff contends that the contract requires the payment of interest annually beginning November 23, 1928. The defendant finds no provision for interest except upon overdue payments; he suggests that possibly the contract might be construed as exacting the payment of interest beginning in 1929; but insists that none was payable before that year. He calls attention to the fact that the contract stipulates for interest on the amount "still due and unpaid," and that the paragraph, which provides for the execution of notes when half of the $40,000 has been paid makes no mention of interest. We have carefully reviewed the contract; its only mention of interest is in the requirement that it shall be paid upon the portion of the purchase price which is "still due and unpaid." The word "due" lexicographically denotes an amount that has matured; however, it is frequently employed in a broader sense to include sums which have not yet matured. 3 Words & Phrases, Third Series, p. 44. Since the parties, in the expression of their agreement, employed a word, which is capable of a dual meaning, and have left a doubt as to which meaning should be applied, we feel justified in relying upon the general context and apparent purpose of their contract to a greater degree than the precise meaning of the word "due." Both parties have interpreted the contract as one which binds the plaintiff to sell, and the defendant to purchase the property upon deferred payments of the purchase price. Such a contract would create a debt until the entire purchase money was paid. Since interest is generally payable upon debts, this circumstance argues strongly in favor of the plaintiff's contention in regard to interest. It is true that the clause, which makes provision for the acceptance by the plaintiff of purchase-money notes when half of the property's price has been paid, makes no mention of interest, but we believe that the exaction of interest upon the portion of the principal "still due and unpaid" refers to the unpaid principal, even after the notes have been executed; in other words it is our opinion the notes would bear the stipulated interest of 6 per cent. Having placed this...