Epplett v. Empire Inv. Co., Inc.

• Citation: 99 Or. 533,194 P. 461
• Parties: EPPLETT v. EMPIRE INV. CO., INC.
• Decision Date: 08 March 1921
• Court: Supreme Court of Oregon

194 P. 461

99 Or. 533

EPPLETT v. EMPIRE INV. CO., INC.

Supreme Court of Oregon

March 8, 1921

In Banc.

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

On petition for rehearing. Rehearing denied, and former decision affirmed.

For former opinion, see 194 P. 700.

George P. Winslow and H. T. Botts, both of Tillamook for appellant.

George W. Gearhart, of Portland, for respondent.

HARRIS J.

The plaintiff earnestly contends in a petition for a rehearing that the conclusion expressed in the original opinion cannot be logically supported by the statement of the facts.

The idea dominating the original opinion is that the letter written by the plaintiff to the defendant on October 10 1918, constituted an abandonment of the land sale contract and also operated as a waiver of the vendee's right to a notice of forfeiture as well as her right to a tender of a deed, and that the letter of March 26, 1919, instead of being an abandonment of the contract or a rescission of it by the defendant, was in truth an exercise of the ripened right of forfeiture, and was therefore equivalent to a performance of the contract.

The plaintiff renews her contention that the two letters, when construed together and considered in the light of the defendant's letter of October 29, 1918, effected a rescission as distinguished from a forfeiture. Although we gave to this contention careful consideration before and at the time of the preparation of the original opinion, we have again considered the subject; but we find ourselves unable to agree with the plaintiff. In our view the letter of October 10th was an abandonment of the contract and the letter of March 26th was an exercise of a matured right of forfeiture.

But the plaintiff argues that there is no pleading to support a judgment based upon a forfeiture, her contention being that the amendment which was written into the answer at the time of the trial is not equivalent to an allegation of forfeiture. Before proceeding with an examination of the argument advanced by the plaintiff we shall dispose of another contention urged by her by conceding for the purposes of this case that such other contention, being the one last mentioned, is correct. It is said by the plaintiff, on the authority of Webb v. Heintz, 52 Or. 444, 447, 97 P. 753, that her denials of the averments in the amended answer do not preclude her from relying upon such averments as admissions by the defendant. In order that the plaintiff's contention may be viewed in a light most favorable to her, we may assume for the purposes of the present discussion that the averments found in the amended answer, even though denied by a reply, must in this case, notwithstanding there may be distinguishing circumstances surrounding it, be treated as admissions by the defendant. In other words, if the amended answer alleges an abandonment by the plaintiff and an acquiescence by the defendant, the defendant will be deemed to have admitted a rescission. We now return to a consideration of the amended answer to ascertain whether it contains any admission of acquiescence.

As pointed out in the original opinion, the amended answer does not in terms allege that defendant declared a forfeiture. In other words, the defendant does not in its pleading use the word "forfeit," or the word "forfeiture." However, the third paragraph of the amendment does use the words "elected to and did accept said abandonment." Repeating what was said in the original opinion, if the record consisted of nothing but the complaint and amended answer, or if the reply had admitted the third paragraph of the amended answer, then there might be some reason for saying that if the plaintiff had, when in the circuit court, moved for a judgment on the pleadings, her motion could possibly have been allowed on the theory that the third paragraph of the amendment amounted to an allegation of "acquiescence" by the defendant. But, so far as the record discloses, no attack was made on the answer by motion or demurrer or otherwise, nor, indeed, is there even so much as an intimation in the record that the plaintiff asked for a judgment on the pleadings at any time before coming to the appellate court; and because of this condition of the record the amended answer must now, under the universally accepted and established rule of construction, be construed most favorably for the defendant. The answer does not tell us how the defendant "did accept" the abandonment; the pleading merely states that the defendant "did accept said abandonment." The question then is one of construction. What is the construction to be placed upon the word "accept"? The plaintiff claims that the term must be held to mean "acquiesce"; the defendant claims that it means that the defendant acted on the abandonment by declaring a forfeiture, and in that sense "did accept the abandonment." If one adopted the construction which is more favorable to the defendant, we cannot say that it means "acquiesce" but we must say that it should receive the meaning ascribed to it by the defendant. This construction prevents the plaintiff from falling into an inconsistent position. The complaint is based upon the theory of abandonment by the plaintiff and acquiescence by the defendant. If the word "accept" as used in the answer is construed to mean acquiesce, then we find the plaintiff in effect alleging acquiescence in her complaint and denying acquiescence in her reply, for it must be remembered that the plaintiff denied the third paragraph of the amended answer. If it be said that this is a strained construction of the word "accept," the answer is that the plaintiff herself has used the word "accepted" in exactly the same sense in her original brief in support of her petition for a rehearing. It must be remembered that the plaintiff has from the beginning consistently argued that the defendant's letter of March 26th was not a declaration of forfeiture, and in the course of her argument upon this phase of the controversy she has used the word "accepted" in the same sense as the defendant now gives to the word "accept" in the amended answer. In her original brief the plaintiff states:

"Even if appellant did repudiate the contract by her letter of October 10, 1918, unless it was accepted by the respondent and appellant relieved from her obligation, it certainly would have no effect, as the contract would be still in force and the pleadings in this case clearly show that it was never accepted by the respondent in this case."

In her brief submitted in support of her petition for a rehearing plaintiff says:

"Notwithstanding all that has been said about the fact of the forfeiture not being in this case, does this court mean to hold that the letter of October 10th was an abandonment of the contract by the plaintiff when it was not accepted by defendant?"

Again in the same brief the plaintiff declares:

"The contract was still in force; and, even though it was assumed that plaintiff had attempted to abandon the contract, there is nothing in the evidence to show that the abandonment was accepted, and that the position of the parties in regard to the contract was in any manner changed on March 26th."

Moreover, the findings of fact tell us how the defendant "did accept," for they inform us that the defendant accepted by declaring a forfeiture.

We repeat that the amended answer upon which the action was tried is not a model pleading; but, in the absence of a timely attack in some form, the pleading is sufficient to sustain a judgment rendered on the theory of forfeiture.

The original opinion attempts to epitomize the pleadings, and as a part of the summary it is explained that the answer contains "a further answer," in which the defendant avers that it owned...