Epplett v. Empire Inv. Co.

• Decision Date: 11 January 1921
• Citation: 99 Or. 533,194 P. 700
• Parties: EPPLETT v. EMPIRE INV. CO., INC. [a1]
• Court: Oregon Supreme Court

194 P. 700

99 Or. 533

EPPLETT v. EMPIRE INV. CO., INC. ^[a1]

Supreme Court of Oregon

January 11, 1921

In Banc.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Winnie Epplett against the Empire Investment Company Incorporated. Judgment for defendant, and plaintiff appeals. Affirmed.

The plaintiff, Winnie Epplett, is attempting in this action brought against the Empire Investment Company, Incorporated a corporation, to recover installments paid by her on a land sale contract. The parties consenting, the cause was tried to the court without the aid of a jury. There was a judgment for the defendant, and the plaintiff appealed.

There is no bill of exceptions. There is no transcript of evidence. The appeal is presented upon a record which consists only of the pleadings and findings made by the trial court. The plaintiff contends that she is entitled to a judgment: (1) On the pleadings independently of the findings of fact; and (2) on the findings of fact considered alone.

On October 2, 1911, the plaintiff and defendant entered into a written contract, under the terms of which the defendant agreed to sell and the plaintiff agreed to buy two lots owned by the defendant in Multnomah county. The price was $750, of which $50 was paid at the time of the execution of the contract, and the remainder was to be paid in monthly installments of $10. Upon payment of the full purchase price the defendant was to deliver to the plaintiff a warranty deed and an abstract of title. The plaintiff agreed to pay the taxes, and it was stipulated that the deed, when executed should be subject to taxes accruing after the date of the contract. The writing contained the following provision:

"And it is understood and agreed that time is of the essence of this contract, and that the party of the first part [the corporation] has the option to declare the amount paid thereon forfeited as reasonable rent for said premises, and this contract canceled, unless the payments hereinbefore mentioned shall be made at the time and place herein provided. And said party of the first part shall forthwith be released from the obligations both in law and equity arising out of this transaction."

In addition to the initial payment of $50, the plaintiff made 24 payments. These 24 additional payments were made in different amounts. There were 3 $20 payments; 1 $40 payment; 4 several payments aggregating $48.40; and 16 $10 payments. The first payment after the initial one was not made until February 20 1912, when the plaintiff paid $10; and at all times after that date the plaintiff was in arrears. The last payment was made on October 13, 1916, when the plaintiff paid $12.05. Notwithstanding the repeated defaults in payments, the defendant at all times prior to October 10, 1918, "solicited and encouraged plaintiff to continue her payments under the contract, and to make some arrangement by which she could continue her payments under the contract." Under date of October 10, 1918, the plaintiff wrote to the defendant saying:

"I wish to inform you that it will not be necessary for you to bring suit for title to the lot I have been trying to pay for, on the installment plan. I shall be very glad to give you a quitclaim deed, or whatever is required to rid myself of this obligation. I think it would be very foolish of me to continue making payments on it, if I were able, as I consider I have already paid in its worth and more.

"I hope you see fit to give me at least a small part of the $350.00, I have paid into this lot. I hate to lose it all. It may be I am entitled to this in the reading of the contract. However, will you please let me know how best to rid myself of this burden and worry, without the trouble and expense of suit?

"Hoping to hear from you at once, I beg to remain

"Very truly yours,

Winnie Epplett."

"P. S. I discontinued making payments for the reason that I could not make them and further I thought this the quickest way to end the matter. I thought that you had the title to the lot anyway, and if not, you would pay me part of what I had paid in for a release from me, of any equity I had in the lot."

On October 29, 1918, the defendant answered plaintiff's letter of October 10th, by writing to her in part as follows:

"We regret very much that you do not feel justified in going ahead and completing your contract. It is against the policy of the company to pay anything for quitclaim deed or releases of property when sold. It is bad precedent and contrary to good business. We would much rather have you go on and carry out your contract and acquire the property. If you do not care to do this, and will execute a quitclaim deed, we will prepare and send you one, and pay your $5.00. We have title to the lot and it is not necessary to do this, but we will do so in this instance."

There was no further correspondence between the parties until March 26, 1919, when the defendant addressed a letter to the plaintiff, informing her that:

"The time for payments stipulated in your contract with us of date October 2, 1911, agreeing to convey the following described property: Lots 21, 22, Blk. C, 1905 Add., having long since expired without such payments having been made, you are hereby notified that said contract is forfeit, canceled and voided and that your rights thereto are determined."

The plaintiff promptly answered by addressing through her attorney to the defendant a letter, which is dated April 4, 1919, and, omitting the mere formal beginning and ending, reads as follows:

"In answer to yours of March 26th to Miss Winnie Epplett of this place, in which you state that the contract entered into between yourself and Miss Epplett on October 2, 1911, for the sale of lots 21, 22 in block C, East St. Johns addition, has been canceled and voided by you, and that Miss Epplett's rights thereto had been determined, will say that Miss Epplett accepts your rescission of said contract, and will make such rescission mutual, and hereby makes demand upon you for the sum of $356.50, the amount paid by her on said contract, together with legal interest from date of each payment by her upon said contract.

"Upon the payment of said sums, Miss Epplett will execute and deliver to you, a quitclaim deed upon payment of said sum.

"I trust that you will favor us with a check for the amount paid on the contract by Miss Epplett, together with legal interest by return mail. You may send the same by draft with quitclaim deed attached, if you wish, and Miss Epplett will execute the quitclaim deed in accordance with your directions upon receipt of the money."

Subsequently, but at some time in April, 1919, the plaintiff tendered a quitclaim deed to the defendant, and demanded a return of all payments made by her, together with interest; but the defendant refused to return any of the payments, and "stated that said contract had been forfeited by said plaintiff, and she had no further rights in the same." Upon filing the complaint, the plaintiff deposited a quitclaim deed with the clerk of the court for delivery to the defendant upon repayment, with interest, of the moneys received by the defendant.

The complaint alleges that the plaintiff paid $356.60 upon an agreement that when the full purchase price of $750 "should be fully paid" the defendant would convey the property by warranty deed to the plaintiff; that the defendant rescinded and repudiated the contract, notwithstanding the plaintiff "had fully complied with all the obligations and covenants on her part to be performed under said contract and was not in default therein"; that plaintiff waived her right to specific performance and damages, and consented to the rescission; and that she tendered a quitclaim deed and demanded the return of the moneys with interest.

The answer admitted that between October 1, 1911, and October 13, 1916, the plaintiff paid $358.50 in installments and on dates specified in the pleadings; that the moneys were paid under and pursuant to the written contract. After denying all of the allegations in the complaint not expressly admitted, the answer continues by setting out a "further answer," which is designed to serve as the foundation for equitable relief. In this "further answer" it is in effect alleged that the defendant owned the two lots; that the defendant and plaintiff executed the written contract for the sale of the lots; that no payments have been made except those already specified; that the plaintiff neglected to pay the taxes for the years 1915, 1916, 1917, and 1918; and that the defendant had no complete remedy at law. The answer concluded with a prayer for a decree foreclosing the contract.

The reply, besides denials, in effect declared that the defendant waived strict compliance as to time of payments; that after such waiver the defendant rescinded the contract, and that the plaintiff agreed to the rescission.

On the day of the trial the court permitted the defendant to amend its answer by interlineation. The amendment is designated as a "first, further, and separate answer and defense," and consists of three paragraphs. In the first paragraph it is alleged that on October 10, 1918, the plaintiff abandoned the contract and refused to perform further, and so notified the defendant. The second paragraph, in substance, states that no payments have been made except $358.50; that the balance of the purchase price was unpaid; and that the defendant was ready, able, and willing to convey upon payment of the purchase price. The third paragraph, according to the printed abstract, reads thus:

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