Coles v. Meskimen

• Citation: 48 Or. 54,85 P. 67
• Parties: COLES v. MESKIMEN.
• Decision Date: 17 April 1906
• Court: Supreme Court of Oregon

85 P. 67

48 Or. 54

COLES v. MESKIMEN.

Supreme Court of Oregon

April 17, 1906

Appeal from Circuit Court, Baker County; Samuel White, Judge.

Action by Elizabeth S. Coles against Stephen Meskimen. Judgment for defendant. Plaintiff appeals. Affirmed.

This is an action of ejectment. The plaintiff alleges that she is the owner in fee and entitled to the immediate possession of the property, and that the defendant wrongfully and unlawfully withholds the same from her. The answer admits the plaintiff's legal title, denies her right to the possession and the wrongful withholding by the defendant, and affirmatively alleges that on or about the 1st day of May 1904, the plaintiff and defendant entered into an executory contract for the sale by the former and the purchase by the latter of the premises in controversy, together with a water right appurtenant thereto, for the sum of $100, to be paid within one year; that by the consent of the plaintiff, and in pursuance of the contract, and in accordance with its terms the defendant immediately entered upon the premises, and has ever since remained in possession thereof, making valuable and permanent improvements, of the reasonable value of $300 that on or about the 1st day of April, 1905, defendant tendered to plaintiff the full purchase price and demanded a deed, but plaintiff refused to execute or deliver such deed and has never performed, or offered to perform, the contract on her part, although the defendant has been and now is able, ready, and willing to pay the purchase price. The reply admits the making of the contract as alleged, except that it denies that a water right was to be conveyed with the land, and alleges that the purchase price was to be paid not later than September 1, 1904, and was not so paid or tendered by the defendant; that on April 5, 1905, the plaintiff offered in writing to convey the premises to the defendant upon the payment of the purchase price, and demanded such payment of him, but it was refused. The cause was tried to a jury. The plaintiff gave evidence of her legal title, waived her claim for damages, and rested. Thereupon defendant, to sustain his defense, gave evidence tending to prove the contract of purchase as alleged in his answer, his possession of the premises under such agreement, and the making of valuable and permanent improvements thereon of the reasonable value of $300; that he offered to pay plaintiff the purchase price, but she refused to accept it, because she had no water right which she could convey; that plaintiff never offered or tendered defendant a deed as agreed upon, but on April 4, 1905, made him a written offer to deliver a deed, whereupon he again verbally offered to pay the purchase price pursuant to the terms of the contract, but that plaintiff refused to accept the same, because she said there might be $30 or $40 costs; that defendant did not have the money with him at the time these offers were made and refused, but he could and would have produced it if plaintiff had accepted such offers. The jury found from the testimony that plaintiff was not entitled to the possession of the premises, but that defendant was entitled to the same by reason of the contract set out in the answer. The plaintiff thereupon moved for judgment in her favor notwithstanding the verdict, on the ground that the matter set up in the answer did not constitute a defense. This motion was overruled, and judgment entered on the verdict, from which she appeals, assigning as error (1) the overruling of her motion for judgment, notwithstanding the verdict, and (2) the refusal to instruct the jury that "in order for the vendee to make a good and valid tender of the purchase price, the money sufficient to meet such purchase price must be actually present; in other words, the vendee must have had the money actually present with him at the time and place he claims to have made such tender."

J.B. Messick, for appellant.

Wm. Smith, for respondent.

BEAN C.J. (after stating the facts).

The contention of the plaintiff is that under the facts set up in the answer the...