Braught v. Granas
| Decision Date | 01 May 1985 |
| Citation | 73 Or.App. 488,698 P.2d 1012 |
| Parties | Harry BRAUGHT and Maxine E. Braught, husband and wife, Respondents, v. Mike GRANAS and Jack Hardin, dba G & H Investments, Appellants. 82-896-2, CA A30903. |
| Court | Oregon Court of Appeals |
Quentin D. Steele, Klamath Falls, argued the cause and filed the brief for appellants.
Michael L. Brant, Klamath Falls, argued the cause and filed the brief for respondents.
Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.
In this action plaintiffs seek damages for breach of a land sale contract. The trial court, sitting without a jury, found that defendants, as purchasers, had breached the contract and awarded plaintiffs damages, which included an amount equal to a judgment against plaintiffs for attorneys fees and court costs in an action for strict foreclosure of a contract involving the same property. Defendants appeal and contend that plaintiffs' inability to convey title defeats their breach of contract claim and that, in any event, it was error to include the judgment for attorney fees and costs as part of plaintiffs' damages. We affirm in part and reverse in part.
In 1979, plaintiffs contracted to purchase certain real property from Paddock and the Crawfords (Paddock/Crawford) for $39,000. Paddock/Crawford remained responsible for paying an obligation secured by a trust deed that encumbered the property. The contract and a warranty deed were placed in escrow, and plaintiffs made the monthly payments due on the contract to the escrow agent, which in turn remitted amounts due on the trust deed, with the excess going to Paddock/Crawford.
In April, 1980, plaintiffs contracted to sell the property to defendants for $42,900. Defendants did not assume or otherwise agree to pay the balance owing on the Paddock/Crawford contract. The contract and plaintiffs' warranty deed were deposited in escrow with the agent that held the contract between Paddock/Crawford and plaintiffs. The monthly payments due were paid to the escrow agent. Pursuant to the escrow instructions, the escrow agent then transferred the payments to the contract between Paddock/Crawford and plaintiffs.
Defendants expected that the rental income from the property would be sufficient to make the contract payments. Problems developed, however, and defendants fell behind in making the payments. Finally, the payments stopped and, as a consequence, the payments stopped on plaintiffs' contract with Paddock/Crawford.
In July, 1982, plaintiffs commenced this action as one for specific performance. In October, Paddock/Crawford filed an action against plaintiffs and defendants for strict foreclosure of their contract with plaintiffs. In August, 1983, Paddock/Crawford were awarded an interlocutory decree of strict foreclosure. Plaintiffs then amended their complaint and alleged a claim for breach of contract. On motion, the cases were consolidated for trial only. After a summary judgment for Paddock/Crawford, the trial court entered a final decree foreclosing plaintiffs' and defendants' interest in the property and awarded Paddock/Crawford judgment against plaintiffs for $2,747.50, representing attorney fees and court costs. After trial, a judgment was entered in this case in favor of plaintiffs and against defendants for $13,917.60. The judgment consists of $11,170.11, the difference between the balance defendants owed on the contract with plaintiffs and the balance that plaintiffs owed on the contract with Paddock/Crawford, and $2,747.50, which represents the judgment recovered by Paddock/Crawford against plaintiffs in the strict foreclosure action.
Defendants make four assignments of error. The gist of the first two assignments is that it was error to find in favor of plaintiffs on their claim for breach of contract, because plaintiffs, having failed to make the payments on the contract with Paddock/Crawford, cannot perform their contractual obligation with defendants to convey title. Under the contract before us, plaintiffs' obligation to deliver the deed and defendants' obligation to pay are independent covenants. Accordingly, plaintiffs are entitled to seek damages for defendants' breach without first tendering the deed. Bank of Cal. Nat. Ass'n v. Bishop, 137 Or. 33, 300 P. 1023 (1931). That brings us to the second step in the analysis.
A purchaser will not be required to pay the purchase price if it can be shown that the seller is unable or unwilling to convey the title. 3A Corbin, Contracts § 666. However, and particularly when the covenants are independent, a purchaser cannot defend on the basis that the seller is unable to convey title, when by the purchaser's conduct he has waived the defense or is estopped from asserting it. Anderson v. Allison, 256 Or. 116, 121, 471 P.2d 772 (1970). Although defendants did not assume the Paddock/Crawford contract, their knowledge of it, together with the "interlocking" escrows, provided a sufficient basis for the trial court to determine that they were estopped from asserting plaintiffs' inability to convey as a defense to the breach of contract claim. The trial court could properly find that defendants, by their failure to pay, precipitated the chain of events which led to plaintiffs' inability to convey. Therefore, defendants' failure to pay would constitute a breach entitling plaintiffs to damages.
The third assignment of error concerns the damage award of $11,170.11. Defendants make several contentions under this assignment. They contend that the "award was inconsistent with the allegations" in the amended complaint; that it "was not supported by any evidence"; and that it "was not the proper application of loss of profits, which was the measure of damages intended to be used by the court."
The trial court made oral findings in favor of plaintiffs. Plaintiffs' counsel prepared the written findings and conclusions, and he followed the trial court's direction to "figure out * * * the difference in the profits * * * and have [defense counsel] either approve it or I will make a ruling * * * on what the actual dollar figure is." Defendants did not object to the findings of fact or the conclusions of law, ORCP 62 E, and judgment was entered. 1
With respect to the first contention, defendants appear to argue that plaintiffs' proof of damages is inconsistent with their pleadings. If our assumption is correct, defendants have not set forth in their brief an objection at trial on that ground, and we will not consider it. ORAP 7.19(5).
Defendants next contend that the evidence is insufficient to support the damage award. However, they do not direct us to where in the record they challenged the sufficiency of the evidence, nor do they attack the absence of appropriate findings of fact. In Sappington v. Brown, 68 Or.App 72, 77, 682 P.2d 775, rev. den. 298 Or. 238, 691 P.2d 482 (1984), we said:
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