Caveny v. Asheim
| Decision Date | 22 September 1954 |
| Citation | 274 P.2d 281,202 Or. 195 |
| Parties | Ednamae F. CAVENY, Respondent, v. Bernard ASHEIM and William C. Robison, co-partners doing business as Robison Realty Company and Gable Park, Inc., a corporation, Appellants, and The Travelers Insurance Company, a corporation, Defendant. STATE of Oregon, ex rel. Bernard ASHEIM and Gable Park, Inc., Petitioners-Relators, v. The CIRCUIT COURT of the State of Oregon FOR WASHINGTON COUNTY, and R. Frank Peters, Judge thereof, Respondents. |
| Court | Oregon Supreme Court |
Supreme Court of Oregon.
Argued and Submitted May 12, 1954.
Decided Sept. 22, 1954.
Jay E. Jordan, Portland, argued the cause for appellants and petitioners-relators Bernard Asheim and Gable Park, Inc. With him on the briefs were Hickson & Dent, Portland.
Scott M. Kelley, Portland, and James K. Gardner, Hillsboro, argued the cause for respondents. With them on the brief were Kelley & Kelley, Portland.
Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, BRAND and PERRY, JJ.
This matter is unique in that it brings for our consideration as one matter two appeals and a petition for a writ of mandamus, all springing from the same case and here consolidated for argument and final disposition.
The salient facts requisite for an understanding of the instant controversy arise out of a contract made on August 18, 1948. It was an agreement for the sale and purchase of residential property in an area known as Gable Park in Washington county. The purchasers were Ednamae F. Caveny, plaintiff in the suit hereinafter referred to, and her now deceased husband, Kasper P. Caveny. They went into immediate possession, notwithstanding that certain work remained to be done by the seller on the dwelling. The defendant Gable Park, Inc., a corporation, was the record owner and seller. The defendants Bernard Asheim and William C. Robison were copartners doing business as Robison Realty Co., and as realty brokers were agents for Gable Park, Inc., in negotiating and closing the sale of the property to the Cavenys. Asheim of the partnership was also president of Gable Park, Inc.; and another defendant, The Travelers Insurance Company, a corporation, was the owner and holder of a note executed by the defendant Gable Park, Inc., in favor of the insurance company for the sum of $15,000, payable in monthly installments, and secured by a mortgage which was a first lien upon the property purchased by the Cavenys.
The agreement of the seller for which plaintiff seeks specific performance is comprehended within a document denominated an 'Earnest Money Receipt', the pertinent portions of which are as follows:
'Received of Kasper P. Caveny and Ednamae F. Caveny H & W hereinafter mentioned as the purchaser, the sum of Three Thousand and 00/100 ($3,000.00) Dollars as earnest money and in part payment for the purchase of the following described real estate situated in the City of _____, County of Washington, State of Oregon, to-wit: Lot 3 Gable Park to be completed as per specifications and to include landscaping, which we have this day sold to the said purchaser for the sum of Twenty Eight Thousand Five Hundred and 00/100 ($28,500.00) Dollars on the following terms, to wit: The sum of $3,000 as hereinabove receipted for; and Ten Thousand and 00/100 on or before Sept. 10, 1948 and Fourteen Thousand Five Hundred Dollars upon acceptance of title and delivery of deed; balance ($1,000.00) payable upon acceptance by purchaser on completion.
'A title insurance policy from a reliable company insuring marketable title in the seller is to be furnished the purchaser forthwith at seller's expense * * *.
* * *
* * *
In the interest of clarity we will reiterate certain provisions of the agreement which contribute to the divergent viewpoints.
The seller covenanted to deliver a marketable title free and clear of all liens and encumbrances. A building on the premises was to be completed by the seller and the property was to be landscaped. The last payment on the purchase price, except for $1,000, was to be made 'upon acceptance of title and delivery of deed' and the reserved $1,000 referred to was 'payable upon acceptance by purchaser on completion.' All but the $1,000 had been paid on the purchase price by October 1948.
The defendant Gable Park, Inc., having failed to secure a release of the mortgage lien of the insurance company or deliver plaintiff a deed, plaintiff brought a suit for specific performance on October 24, 1952, and, among other things, sought to have the defendants Robison and Asheim declared to be trustees for the sums of the purchase price which were paid to them by the purchasers and which, plaintiff says, should have been applied by the defendants to the extinguishment of the mortgage lien.
After trial a decree was entered on July 8, 1953, wherein the court found for plaintiff. It directed specific performance of the contract and delivery of a deed as required by the sales agreement. It also required plaintiff to pay $800 into court for payment by the clerk to the defendants Asheim, Robison and Gable Park, Inc., upon receipt by the clerk of a satisfaction of the insurance company's mortgage.
On July 21, 1953, the court made and filed an amended decree which in effect added to the former decree a provision declaring that the three defendants last above named were trustees of the money received from the purchasers for the purpose of paying the insurance company.
On September 4, 1953, the defendants Asheim and Gable Park, Inc., gave notice of appeal from the decree of July 8 and the amended decree of July 21. That proceeding we will hereinafter refer to as the first appeal.
Thereafter, on the 18th day of September, 1953, the court entered a further or third amending decree. This determined the extent of the trust monies held by the defendants Asheim, Robison and Gable Park, Inc., to be $11,856.04. This was the amount then due on the insurance company's mortgage. This last decree also gave plaintiff a personal judgment against the three named defendants in the same amount, i. e., $11,856.04. Plaintiff's motion, which resulted in the last amended decree, asked for this personal judgment as 'alternative relief', but the amended decree does not so describe or limit it. All decrees subsequent to the first one were entered without notice to defendants.
On September 19 and 21, 1953, executions were issued on the judgment and decree as amended on September 18. These were promptly following by motions of the defendants Asheim and Gable Park, Inc., to vacate the last decree and to quash the executions issued thereon. These motions were denied by the court's order of September 29.
On November 18, 1953, the same two defendants heretofore appealing filed notice of appeal from the amended decree of September 18. This proceeding we hereinafter refer to as the second appeal.
The third matter stemming from the Caveny suit in this court is the petition for a writ of mandamus filed in this court in December 1953 by the defendants Asheim and Gable Park, Inc., against the judge of the circuit court of Washington county directing him to vacate the decree dated September 18, 1953, and to quash all writs of execution issued thereunder. To the return made to the alternative writ, the petitioners demurred.
The issues are few and the facts are simple. The parties are in accord as to the amounts paid upon the purchase price. They agree that the balance of $1,000 is withheld by plaintiff to insure completion of the house. The contract so indicates, and the testimony of the president of the vendor corporation confirms, that the Cavenys as purchasers were to have a title free and clear of encumbrances. There is no dispute that the mortgage lien of The Travelers Insurance Company has never been released of record. The principal difference between the parties arises from whether the house has been completed in accordance with the specifications. The defendants claim that it has. The plaintiff asserts that it has not been completed in several particulars. Her main contention is that a third coat of paint was never applied on the outside. Although she alleges other deficiencies, the lower court found that the vendor's default was in the failure to apply the paint and allowed an abatement to plaintiff for that reason. The defendants contest that allowance.
Notwithstanding the relative simplicity of the issues, the real controversy centers on the character and extent of the relief which plaintiff should be accorded in her suit for specific performance. Our task in making this determination is materially complicated by the fact that the court made three separate decrees, hereinabove referred to. The last two each modify the one immediately preceding it.
The first question for solution is whether or not the circuit court had jurisdiction to enter the amended decree of September 18. This challenge is raised by the second appeal and is also made the ground for the relief sought by the petition for the writ. If resolved against the lower court, then the matters raised by the second appeal are concluded and the petitioners will not be entitled to a peremptory writ according them the relief which they seek by their petition.
We have already noted the substance of the decrees of July 1953. These July decrees, taken together, furnish the basis for the first appeal. At this point, however, we will consider only the third and last decree as entered by the lower court on September 18, 14 days after notice of appeal from the July decrees had been served and filed. This later amendment, as we have observed, fixed...
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