Hull v. Clemens

• Citation: 267 P.2d 225,200 Or. 533
• Parties: HULL v. CLEMENS et al.
• Decision Date: 24 February 1954
• Court: Oregon Supreme Court

Page 225

267 P.2d 225

200 Or. 533

HULL v. CLEMENS et al.

Supreme Court of Oregon.

Argued Oct. 28, 1953.

Decided Feb. 24, 1954.

Jack H. Dunn, Myrtle Point, argued the cause for appellant. On the brief were Dement, Dunn & Meldrum, Myrtle Point.

Pat H. Donegan, Burns, argued the cause and filed a brief for respondents.

Before LATOURETTE, C. J., and ROSSMAN, LUSK, TOOZE and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Elvin Hull, from a decree of the circuit court which dismissed this suit. The order of dismissal as to the defendant, J. C. Clemens, ordered him [he having made the offer] to enter upon the records satisfaction of a judgment which he had recovered June 12, 1944, in the Circuit Court for Coos County against Hull and his wife, Milla, in the sum of $6,480. The decree recites that during the course of the trial the suit was dismissed on motion of the plaintiff as to the other two defendants, Samuel Carter and Veva L. Carter. The suit, as originally instituted, sought specific performance of a contract for the conveyance by defendant Clemens to Hull and his wife of a tract of 320 acres of land situated in Harney County, or, in the alternative, damages for nonconveyance. During the trial the plaintiff became satisfied that the Carters had purchased the property in good faith, for a valuable consideration and without notice of the plaintiff's interest in the property. It was for that reason that the plaintiff moved for a dismissal of the suit as to the Carters. The plaintiff-appellant, Hull, of course, does not attacked the parts of the decree which (1) dismissed the suit as to the Carters; (2) ordered defendant-respondent Clemens to satisfy upon the records his judgment against the Hulls; and (3) denied the plaintiff the remedy of specific performance. He assigns as error the court's refusal to award him damages for the omission of Clemens to have conveyed to him the aforementioned property. The complaint avers damages in the amount of $9,822.10. Hereafter we may refer to plaintiff-appellant Hull as Hull, to his wife as Mrs. Hull, to defendant-respondent Clemens as Clemens and to defendants Carter as the Carters. Mrs. Hull is not a party to this case and the Carters are neither appellants nor respondents.

The facts, except those which indicate the value of the property, are free from dispute. Hull and his wife, as purchasers, and Clemens, as vendor, signed a contract October 16, 1939, whereby (1) the Hulls agreed to pay Clemens the sum of $9,600 for the tract of land with which this appeal is concerned, and (2) Clemens agreed to convey the property to the Hulls when they had paid in full the purchase price. The contract required the Hulls to pay $1,500 concurrently with the execution of the contract and the balance of the purchase price in annual installments of $810. Unpaid balances bore interest. The contract granted to the vendees possession of the property but retained in Clemens, as vendor, title until the entire purchase price had been paid. The Hulls made the initial payment and took possession. Thereafter they seasonably made the first two annual payments.

By 1942 the Hulls had met with financial reverses and found themselves unable to discharge the installment payment which became due October 16 of that year. As a witness, Hull explained, 'I had financial reverses of very serious nature.' He added that because of the 'shortage of men' arising out of the war conditions he was unable to work the property properly. In addition to operating the Harney County property, Hull conducted a venture in Myrtle Point, Coos County, which he identified as 'a truck business or transfer business.' His home was in Powers, Coos County. Evidently, as a result of his straitened financial condition, he sold some of the livestock which he had upon the Harney County acreage. Since he testified that in or about the year 1945 he worked for wages in the logging industry, it may be that his truck business was not profitable.

On or about October 16, 1942, when the installment payment for that year became due, Hull told Clemens that he wished to be released from the contract. The brief which his counsel filed in this court says: 'During the early part of November, 1942, plaintiff advised defendant that it was his intention to give up the land and offered to release his interest in the property arising out of the contract.' When Hull so told Clemens the latter replied that, since Hull had had the use of the land for the current year and had taken the crop which it produced, he ought to discharge the year's installment payment. Hull declined to make the payment and, according to his testimony, left the property. Neither he nor his wife returned to Harney County until the summer of 1948. When the Hulls left Harney County an action had been filed against Hull in that county by an individual named Jordan. The evidence does not disclose the nature of that case, but Hull, in referring to it, said 'that's one thing that made it bad for me.'

Clemens testified that in November, 1942, Hull owed him, in addition to the 1942 installment money, $150 for a bull which he purchased from Clemens the preceding year. In October of 1942 Clemens discovered, so he swore, that the Hulls were selling their cattle and he thereupon suspected that they intended to quit the property which they had undertaken to purchase from him. Having made that surmise, Clemens tried to find Hull for the purpose of inquiring of him as to his intentions. Presently Clemens encountered Hull upon one of the public roads. We now quote from Clemens' testimony:

'Q. What was said at that time? A. Well, he said he was leaving to buy him another ranch over at Eugene, and he had given up the place, he was through with Harney County, it was too far away from his operations, he couldn't manage it.

'Q. What did you say? A. Well, I says, 'Elvin, you have paid enough on this contract. Why don't you go on with it?' He says 'No, I don't want any more to do with it. I think I paid you enough on it.' I says, 'I want my payment.'

'Q. By 'your payment' what did you refer to? A. The one that was due that he hadn't paid. He had used it that year, and I wanted my payment, and also I wanted the $150 for a bull that he had bought the year before and had never paid me; * * *.'

The conversation ran on, but it produced nothing for application upon the purchase price of the bull nor for discharge of the current installment payment upon the contract which the parties had signed in 1939. We quote further from Clemens' version of the conversation:

'Q. Did he leave you with the impression that he was through with Harney County? A. That's the impression he gave me, and that's what he told me.

'Q. Did he leave at that time? A. Yes, never saw him any more.

'Q. When did you next see him? A. '48, or he came back here--I guess '48 was when he came back here, '49.

'Q. Did he ever attempt to pay you for the bull? A. No.

'Q. Did he ever attempt to make any payment for the land? A. No.

'Q. Did he ever communicate with you? A. No.

'Q. Did Mrs. Hull ever communicate with you? A. No.'

We are of the opinion that Clemens' testimony reflects the truth concerning the conference which occurred immediately prior to the Hulls quitting the land.

November 23, 1942, Clemens, as plaintiff, instituted an action in the Circuit Court for Coos County against the Hulls, as defendants, in which he prayed for judgment for the unpaid balance of the purchase money, $6,480. We now return to Hull's testimony:

'Q. When did you make up your mind, Mr. Hull, to abandon this Clemens land? A. Well, truthfully, after the suit was served upon me for the full balance. There was no alternative.'

We shall presently return to the Coos County suit, but, in the meantime, we will take note of some other developments. Hull had not paid the 1942 taxes when he left the property, and after leaving he made no inquiries as to whether anyone was discharging them. Although the signatures to the contract between the Hulls and Clemens had been acknowledged before a notary public, Hull did not record the instrument in any of the public records. He conceded that he made no investigation to determine whether anyone had taken possession of the property after he left, and that likewise he sought no information as to the condition of the property. After leaving the property in 1942 and until returning in 1948, the Hulls never asserted any interest in it.

The above was the state of affairs in November, 1942, when Clemens filed the action in the Circuit Court for Coos County demanding judgment for the unpaid balance of the purchase money, $6,480. Clemens' complaint quoted in full the contract which he, as vendor, and the Hulls, as vendees, signed October 16, 1939. It acknowledged payment by the Hulls of the initial payment of $1,500 and the installments, each in the sum of $810, which the Hulls had paid in the years 1940 and 1941. It did not tender a deed to the Hulls. The latter appeared in the case through counsel and filed a general denial. June 12, 1944, the cause was called for trial. At that time the Hulls, though their counsel, confessed Clemens' right to a judgment and on that day the circuit court entered judgment in favor of Clemens and against the Hulls for $6,480, together with costs and interest. When the Hulls confessed the right of Clemens to judgment, they did not ask that he deliver a deed to them or that provision be made whereby they could secure one upon payment of the judgment. In truth, if a conveyance, or provision for one, was discussed when the judgment was confessed, no witness mentioned the fact. Likewise, at that juncture Hull, notwithstanding the fact that he now claims that the contract remained in effect after the judgment was entered, did not record it. Shortly after entry of the judgment, a writ of execution was issued which was levied upon some cattle belonging to the Hulls. The...