Eastern Oregon Land Co. v. Moody, 1,956.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation198 F. 7
Docket Number1,956.
PartiesEASTERN OREGON LAND CO. v. MOODY. [1]
Decision Date15 July 1912

198 F. 7

EASTERN OREGON LAND CO.
v.
MOODY. [1]

No. 1,956.

United States Court of Appeals, Ninth Circuit.

July 15, 1912


[198 F. 8]

Huntington & Wilson, of Portland, Or., and Garret W. McEnerney and W. S. Goodfellow, both of San Francisco, Cal., for appellant.

Martin L. Pipes, of Portland, Or., and W. H. Wilson, of Portland, Or., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge.

The plaintiff, Z. F. Moody, during the time mentioned in this action resided and had an office at The Dalles, in Oregon, where his son, M. A. Moody, was his agent. The defendant has its office in San Francisco, Cal., but was represented by an [198 F. 9] agent, George T. Parr, residing at Moro, in Oregon, and by attorneys Huntington & Wilson, residing at The Dalles, Or.

The contract in question bears date January 2, 1902. By its terms the plaintiff, as party of the first part, agreed to pay for certain lands in Wasco and Sherman counties, Or., $8,457.75, as follows:

Upon the execution of the contract $1,457 75
On or before January 1, 1903 1,750 00
On or before January 1, 1904 1,750 00
On or before January 1, 1905 1,750 00
On or before January 1, 1906 . . . 1,750 00

It was agreed by the plaintiff that interest should be paid at the rate of 8 per cent. per annum from the date of the contract payable semiannually on each of said sums, until the same should be fully paid. It was further agreed that the plaintiff should pay all taxes which might come due and payable on the described premises until the conveyance should be executed as provided in the agreement. The defendant agreed, as the party of the second part, that upon the payment of said sums and interest it would convey to the plaintiff the described premises. It was further agreed that in case the plaintiff should make default in the payment of any one or more of the sums of money agreed to be paid for a period of six months the plaintiff would surrender the possession of the premises to the defendant, and the defendant was empowered to take possession of the premises and terminate the contract. The payment of the sums and interest and the strict performance by the plaintiff of all the covenants and agreements contained in the contract, to be by the plaintiff kept and performed, were made conditions precedent to the said conveyance, and time was declared to be the essence of the contract. Payments were made on this contract by the plaintiff as follows:

February 13, 1902: Payment on the first installment of the principal, due January 2, 1902 . . . $1,457 75

January 24, 1903: First payment of interest due July 2, 1902, $280; and interest due January 2, 1903, $280; and interest on overdue interest, $14.20 . . . 574 20

June 2, 1903: Second payment of interest due July 2, 1903 . . . 280 00

December 31, 1903: Third payment of interest, due January 2, 1904 . . . 280 00

December 29, 1905: Fourth payment on interest due July 2, 1904, $280; due January 2, 1905, $280; due July 2, 1905, $280; and due January 2, 1906, $280, total $1,120; and interest on overdue interest, $67 . . . 1,187 00

August 13, 1906: Fifth payment of interest due July 2, 1906 . . . 280 00

The only payment made on account of the principal was made on February 13, 1902, which, by the terms of the agreement, should have been paid on January 2, 1902. The plaintiff defaulted in this payment 1 month and 12 days, and defaulted on all four of the other payments on account of the principal. On August 11, 1906, the defendant notified the plaintiff that the defendant terminated the contract of January 2, 1902, for the sale of land therein described by reason of the plaintiff's failure to make the payments which by said contract plaintiff had agreed to make.

The plaintiff was then in default with respect to all the installments [198 F. 10] on account of the principal except the first. He was in default 3 years, 7 months, and 12 days with respect to the second installment; 2 years, 7 months, and 12 days with respect to the third; 1 year, 7 months, and 12 days with respect to the fourth; and 7 months and 12 days with respect to the fifth and last installment. He defaulted in the payment of the first installment of semiannual interest, due July 2, 1902, 6 months and 22 days; and on the second installment, due January 2, 1903, 22 days. He paid the third installment 1 month before it was due, and the fourth installment 2 days before it became due. He defaulted in the payment of the fifth installment, due July 2, 1904, 1 year, 5 months, and 27 days. On the sixth installment, due January 2, 1905, he was in default 1 year lacking 4 days; and on the seventh installment, due July 2, 1905, he was in default 6 months, lacking 4 days. The eighth installment, due January 2, 1906, he paid December 29, 1905, or 4 days before it came due. The ninth installment, due July 2, 1906, he did not pay until August 13, 1906, or after he had been in default 1 month and 11 days; and he did not then pay, or offer to pay, the interest on the principal from July 2, 1906, to August 13, 1906, amounting to $63.77.

During a period of 4 1/2 years in which nine semiannual payments of interest became due, he failed to make six payments, including the last due July 2, 1906, at the time agreed upon, and only made three payments on or before the time when they became due. For none of these defaults was there a waiver on the part of the defendant of any of the terms of the contract.

How did the defendant treat these defaults?

On December 14, 1903, defendant's agent notified the plaintiff by letter that on January 2, 1904, the second and third payments on his contract would fall due, as follows:

Second payment . . . $1,750
Third payment . . . 1,750
And interest to January 2, 1904 . . . 280

The agent of the defendant stated that the defendant had requested him to collect all amounts maturing so that he could have his books in shape for the directors' meeting of the company on January 12, 1904. The agent stated further that he took occasion to notify the plaintiff before hand so that he could make arrangements to meet the indebtedness promptly when due. To this letter, M. A. moody, the son and agent of the plaintiff, Z. F. Moody, replied by letter, under date of December 18, 1903, stating that his father was then in California; expected him home about the first of the year. The son wrote further that he understood from his father that his arrangements with the company anticipated that the company would carry along the principal until he could conveniently retire it, if the interest was kept paid promptly on its due day. To this letter the defendant, by its agent, Parr, replied under date of December 21, 1903, that there was no definite promise given by the plaintiff regarding the payments. The agent stated that he would endeavor to carry the account without payments as long as possible; but, the company having called upon him for payment, he had no alternative in the premises. If, [198 F. 11] however, the plaintiff would send half of the amount due and interest, he would see that it was satisfactory with the company to allow the other payments to continue one year. This demand was not complied with, and the deferred payment was defaulted; but on December 31, the semiannual interest of $280 was paid with the promise that after the New Year the principal payments would be adjusted with the defendant. On January 1, 1904, defendant's agent acknowledged receipt of the check for $280, being interest due January 2, 1904, and noticed the promise of the plaintiff that the principal payments would be adjusted in a short time. This promise was not kept, and the promised payment was defaulted.

On January 28, 1904, defendant's agent telephoned to plaintiff demanding payment. Plaintiff's agent replied by letter that it was not entirely convenient to make the payment then, but he thought he could arrange it soon. He stated that he would bear in mind the fact that defendant was anxious to reduce the amount at an early date, and he promised to favor the defendant as quick as he could. This promise was not kept and the promised payment was defaulted. On June 17, 1904, defendant's agent demanded of plaintiff by letter payment of the interest of June 2, 1904. On June 27th, defendant's agent corrected the error in the demand as to the date when interest was due, and stated it as being July 2, 1904. No notice was taken of this corrected demand, and payment was defaulted. On August 25, 1904, defendant's agent notified the plaintiff that the defendant company was requesting information regarding arrangements made with the plaintiff for an extension of time on payments due on the contract. The agent stated that in replying to his letter the defendant company had sanctioned his actions in the matter, and stated that they preferred to have the interest paid semiannually, as provided for in the agreement. The agent thereupon requested the plaintiff to comply with this part of the contract, and he would carry the payments along until such time as the defendant should demand that collections be made. No notice was taken of this letter by the plaintiff, and no payment of the interest then due was made; plaintiff defaulted.

On December 6, 1904, defendant's agent notified the plaintiff by letter that on January 2, 1905, there would be due on the contract, $5,250, and accrued interest, $571.20, making the total amount due, $5,821.20. The agent stated further in this letter that of this amount he expected a payment of $1,750, and accrued interest, $571.20, making a total of $2,321.20. Plaintiff was requested to give careful attention to this demand, as he must have this amount indicated by the 2d proximo. No attention was paid to this demand by the...

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12 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...abstract and deed under the terms of the contract. (Loud v. Pomona Land Co., 153 U.S. 564, 38 L. ed. 823; Eastern Oregon Land Co. v. Moody, 198 F. 7; Paine v. Brown, 37 N.Y. 228; Bartlesville Oil Co. v. Hill, 121 P. 208; Grays v. Meek, 64 N.E. 1020; (Ill.); Sheeren v. Moses, 84 Ill. 448; Mo......
  • Harding v. Home Investment & Savings Co., 5379
    • United States
    • United States State Supreme Court of Idaho
    • 20 Marzo 1930
    ...164 Cal. 613, 130 P. 15.) No definite sum being stated in appellants' offer, it is not a valid tender. (Eastern Oregon Land Co. v. Moody, 198 F. 7, 119 C. C. A. 135; Proebstel v. Trout, 60 Ore. 145, 118 P. 551; Harrison v. Beals, 111 Ore. 563, 222 P. 728.) To entitle the appellants to any o......
  • Lagerloef Trading Co., Inc. v. American Paper Products Co. of Indiana, 3183.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Mayo 1923
    ...75 S.W. 959; Rayburn v. Comstock, 80 Mich. 448, 45 N.W. 378; Habeler v. Rogers, 131 F. 45, 65 C.C.A. 281; Eastern Oregon Land Co. v. Moody, 198 F. 7, 119 C.C.A. 135; Ziehen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Williston on Contracts, Sec. 832; Thick v. Detroit, etc., Co., 137 Mich. 708, 10......
  • Bembridge v. Miller
    • United States
    • Supreme Court of Oregon
    • 5 Septiembre 1963
    ...P. 821; McCourt v. Johns, 33 Or. 561, 53 P. 601; Milton v. Hare, 130 Or. 590, 280 P. 511; Eastern Oregon Land Co. v. Moody, 119 C.C.A. 135, 198 F. 7; Short v. Rogue River Irr. Co., 82 Or. 662, 162 P. 845; Ladd & Tilton v. Mason, 10 Or. Holladay v. Holladay, supra, involved a loan of approxi......
  • Request a trial to view additional results
12 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...abstract and deed under the terms of the contract. (Loud v. Pomona Land Co., 153 U.S. 564, 38 L. ed. 823; Eastern Oregon Land Co. v. Moody, 198 F. 7; Paine v. Brown, 37 N.Y. 228; Bartlesville Oil Co. v. Hill, 121 P. 208; Grays v. Meek, 64 N.E. 1020; (Ill.); Sheeren v. Moses, 84 Ill. 448; Mo......
  • Harding v. Home Investment & Savings Co., 5379
    • United States
    • United States State Supreme Court of Idaho
    • 20 Marzo 1930
    ...164 Cal. 613, 130 P. 15.) No definite sum being stated in appellants' offer, it is not a valid tender. (Eastern Oregon Land Co. v. Moody, 198 F. 7, 119 C. C. A. 135; Proebstel v. Trout, 60 Ore. 145, 118 P. 551; Harrison v. Beals, 111 Ore. 563, 222 P. 728.) To entitle the appellants to any o......
  • Lagerloef Trading Co., Inc. v. American Paper Products Co. of Indiana, 3183.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Mayo 1923
    ...75 S.W. 959; Rayburn v. Comstock, 80 Mich. 448, 45 N.W. 378; Habeler v. Rogers, 131 F. 45, 65 C.C.A. 281; Eastern Oregon Land Co. v. Moody, 198 F. 7, 119 C.C.A. 135; Ziehen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Williston on Contracts, Sec. 832; Thick v. Detroit, etc., Co., 137 Mich. 708, 10......
  • Bembridge v. Miller
    • United States
    • Supreme Court of Oregon
    • 5 Septiembre 1963
    ...P. 821; McCourt v. Johns, 33 Or. 561, 53 P. 601; Milton v. Hare, 130 Or. 590, 280 P. 511; Eastern Oregon Land Co. v. Moody, 119 C.C.A. 135, 198 F. 7; Short v. Rogue River Irr. Co., 82 Or. 662, 162 P. 845; Ladd & Tilton v. Mason, 10 Or. Holladay v. Holladay, supra, involved a loan of approxi......
  • Request a trial to view additional results

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