Fluhrer v. Bramel

• Decision Date: 09 March 1938
• Citation: Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47 (Or. 1938)
• Parties: FLUHRER <I>v.</I> BRAMEL ET AL.
• Court: Oregon Supreme Court

158 Or. 694

72 P.2d 47

FLUHRER

v. BRAMEL ET AL.

Supreme Court of Oregon.

Argued on the merits March 9, 1938.

Motion to dismiss appeal allowed October 5, 1937.

Motion to dismiss appeal denied on rehearing November 16, 1937.

Affirmed March 29, 1938.

Appeal and error

1. An appeal from decree rescinding contract for sale of appellant's service station to respondent must be dismissed on latter's motion, where defendant acquiesced therein by renting station to third party, without reserving right to retake possession thereof if decree were reversed, and improving property in conformity to decree.

ON PETITION FOR REHEARING

Appeal and error

2. An opinion dismissing defendant's appeal from decree rescinding contract between plaintiff and defendant for sale of a service station situated on land which defendant held on a lease, because defendant acquiesced in decree by leasing station after rendition of decree, was reversed, where it was shown on petition for rehearing that lease executed by defendant was executed before decree was rendered.

ON THE MERITS

Sales — Contracts — Rescission

3. Where assignee of lessee erected building on leased land, later engaged realty broker to sell it, broker found a purchaser who agreed to buy on condition that assignee secure extension of lease for purchaser, broker informed purchaser that extension was consented to by lessor, whereupon purchaser made cash payment to broker and gave note in escrow for balance, and lessor declined to extend or assign lease to purchaser, purchaser was entitled to rescind contract and recover money and note, since contract was entire and consideration was not apportionable.

Contracts — Rescission

4. When performance of a contract by one of the parties is inherently impossible, or has become impossible in consequence of events occurring after the making of the contract, it is generally the right of the other party to rescind.

  See 2 Am. Jur. 975
                  See 5 R.C.L. 676 (2 Perm. Supp., 1453)
                  See 12 Am. Jur. 1025
                  4 C.J.S. Appeal and Error, § 1354
                  55 C.J. Sales, § 1059.
                

In Banc.

Appeal from Circuit Court, Multnomah County.

HALL S. LUSK, Judge.

Suit by F.W. Fluhrer against W.E. Bramel, the Bank of Sellwood, and Ray E. Wenger, doing business under the trade name of Fidelity Brokerage Company. From a decree for plaintiff, and a judgment for defendant Wenger against defendant Bramel, the latter appeals. On respondent's motion to dismiss the appeal from the decree for plaintiff.

MOTION TO DISMISS APPEAL DENIED.

AFFIRMED ON THE MERITS.

O.G. Larson, of Portland, for appellant.

Bischoff & Bischoff, of Portland, for F.W. Fluhrer.

B.G. Skulason, of Portland, for Ray E. Wenger, for respondents.

BEAN, C.J.

Respondent moves the court for an order dismissing the appeal, in the above entitled cause, taken by defendant Bramel, insofar as said defendant appeals from the decree in favor of plaintiff, for the reason that said defendant has, since the entry of said decree, acquiesced therein and has acted in affirmance thereof.

1. The decree appealed from rescinded the contract between plaintiff and defendant Bramel, for the sale of a certain service station situated at 8140 S.W. Macadam Ave., Portland, Oregon, thereby adjudicating that the defendant Bramel was the owner of the property, which was the subject matter of the contract of sale, and after the entry of said decree Bramel rented said property to Wolfer's Automotive Service, Inc., for the term of one year, thereby acquiescing in the decree.

The circuit court also rendered judgment in favor of defendant Wenger and against defendant Bramel for commissions earned by Wenger in bringing about the contract of purchase and sale between Bramel, as seller, and Fluhrer, as purchaser. Defendant Bramel also appealed from the judgment in favor of defendant Wenger. This motion to dismiss has no effect upon the appeal of Bramel from the judgment in favor of defendant Wenger.

The lease of the service station in question from W.E. Bramel to Wolfer's Automotive Service, Inc., is evidenced by written correspondence between those parties. After the execution of the lease, the Wolfer's Automotive Service, Inc., paid the rent of the service station, $35 per month, to Bramel, until June 23, 1937, when notice was given to it that the lease had been assigned to the First National Bank of Portland. Thereafter Wolfer's Automotive Service, Inc., paid the rent to the First National Bank.

Upon plaintiff's attempting to serve the levy and execution upon the service station, as the property of Mr. Bramel, on or about June 16, 1937, Mr. Bramel stated that they would not be able to levy upon the service station or lunchroom because he had leased the service station to Wolfer's Automotive Service, Inc., and the lunchroom to one Charlie Claussen, and that these parties were in possession under the leases and had paid several months' rent in advance.

It is shown by the affidavit of W.E. Bramel that he leased the lot upon which the service station and lunchroom were situated from Joseph Weber, and had an option to purchase the lot; that after the decree, the plaintiff having surrendered the said property and not supplying any further moneys with which to pay rent to the landlord, it became absolutely necessary for defendant Bramel to make some use of the property to get money with which to keep up the property during the pendency of this litigation, and thereafter he leased portions of said property to various tenants for monthly rentals, as it became necessary. He claimed it was the understanding and agreement with each tenant that possession would be delivered if and when the court should order or decree that possession should be given or that plaintiff was not entitled to rescission. But the writings evidencing the lease by Bramel to the Wolfer's Automotive Service, Inc., do not show any such right reserved.

It is plainly shown that the defendant W.E. Bramel has acquiesced in the decree and treated the property that he had contracted to sell to plaintiff as his own, having improved it by installing a hot-water system and sink and repaired the plumbing, in conformity to the decree.

In Kellogg v. Smith, 70 Or. 449 (142 P. 330), after the trial court rendered a decree rescinding the transaction, defendant took possession of the property, a laundry, and operated the same a portion of the time and then leased it to a third party. The defendant attempted to avoid the effect of that lease by contending that he merely placed someone in possession to care for the property pending the appeal, and that he was at all times in a position to surrender the property to the plaintiff, if the appeal should be successful. The court, upon consideration, determined the contention was not made in good faith.

It appears that when Bramel leased the property in question and collected and appropriated the rents, he did so for his own benefit and account, as owner of the property.

In Elwert v. Marley, 53 Or. 591 (99 P. 887, 101 P. 671, 133 Am. St. Rep. 850), plaintiff sued for a decree restraining defendant from making use of certain wharfage rights. Defendant claimed the right to the use of the wharf in question. The trial court rendered a decree denying defendant the right to use the wharf and enjoining the use thereof. Defendant appealed from the decree, but subsequent to the entry defendant entered into a lease with plaintiff's grantee of the land in question for the use of said wharf. Thereupon plaintiff moved to dismiss the appeal on the ground that defendant took a lease for the use of the wharf, in effect conceding that he had no right to the use of the same without a lease and hence his conduct constituted an acquiescence in and an affirmance of the decree. This court, in dismissing the appeal, said:

"A party to an action may, by his acts subsequent to a judgment or order against him, waive his right to have such right or order reviewed by an appellate court, as by acquiescing therein by payment or part payment, or by accepting the benefits thereof. Moore v. Floyd, 4 Or. 260; Portland Const. Co. v. O'Neil, 24 Or. 54 (32 Pac. 764)."

In Lange v. Devlin, 80 Or. 238 (156 P. 260), it was said:

"The appellant used and dealt with the land as though it then intended fully to accept and accede to the terms of the decree, and it will not be permitted to change the position which it voluntarily assumed. Kellogg v. Smith, 70 Or. 449, 456 (142 Pac. 330), furnishes a conclusive precedent. See, also, Thomas v. Booth-Kelly Co., 52 Or. 534 (97 Pac. 1078, 132 Am. St. Rep. 713); Elwert v. Marley, 53 Or. 591 (99 Pac. 887, 101 Pac. 671, 133 Am. St. Rep. 850); 3 C.J. 665, 669.

"The appeal is dismissed."

The appeal of defendant W.E. Bramel from that part of the decree in favor of plaintiff F.W. Fluhrer is dismissed.

LUSK, J., took no part in the consideration of this motion.

Motion to dismiss appeal denied on petition for rehearing November 16, 1937

ON PETITION FOR REHEARING

(73 P. (2d) 265)

BEAN, C.J.

On motion of respondent Fluhrer, an order was issued dismissing the appeal in the above entitled cause taken by the defendant Bramel, insofar as said defendant appeals from the decree in favor of plaintiff, for the reason that said defendant has, since the entry of said decree in the lower court, acquiesced therein.

2. The decree appealed from rescinded the contract between plaintiff and defendant Bramel for the sale of a certain service station situated at 8140 S.W. Macadam Avenue, Portland, Oregon, on land which defendant W.E. Bramel held on a...