Kane v. Rippey

• Citation: 22 Or. 299,29 P. 1005
• Parties: KANE v. RIPPEY et al.
• Decision Date: 26 April 1892
• Court: Supreme Court of Oregon

29 P. 1005

22 Or. 299

KANE v. RIPPEY et al.

Supreme Court of Oregon

April 26, 1892

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge.

Action by E.C. Kane against Charles G. Rippey and Frank Amy on a contract for the purchase of land, for the return of purchase money already paid because of a breach of the contract. Trial to the court. Judgment for defendants. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

This is the second appeal in this cause. In the first, the opinion of the court is reported in 23 P. 180, to which reference is made for a statement of the pleadings. The cause was retried in the court below without a jury, and again resulted in a judgment for the defendants, from which this appeal was taken. Upon the second trial, the court found the facts as follows: "(1) On the 17th day of April, 1889, the defendants were the owners of certain land near Central Point, Oregon, which they had purchased from John Watson, and Phoeba H. Watson and on which said Watson had a mortgage of $15,000; that the defendants were anxious to sell said land or a portion of it, to pay said mortgage debt, and stop interest. (2) That on said April 17th defendants entered into an agreement with the plaintiff for the sale of 250 acres of said land for $10,000, which agreement was reduced to writing, and attached to the complaint in this action. (3) That the plaintiff paid to the defendants the sum of $500 mentioned in the agreement, on the same day the agreement was made. (4) That within a few days thereafter the defendant had the 250 acres of land mentioned in the agreement surveyed and employed J.H. Whitman to make an abstract of title for the plaintiff; and as soon as the abstract was finished they delivered it to the plaintiff or his attorney. (5) That after some controversy had arisen between said parties in reference to the growing crop, the plaintiff refused to accept the land, or to complete the payments, alleging as a reason for such refusal that the title was not good. (6) That on the 29th day of April, 1889, the defendants, with their wives, executed a deed of the said 250 acres of land, with covenants of warranty in due form, and in two or three days after the execution thereof they tendered the deed to the plaintiff, and requested him to accept the land, and pay for the same, according to said agreement, but plaintiff refused to do so, stating that he could not accept the deed until they made the title good; and he has refused ever since to accept the property or pay for it. (7) That there is a chain of conveyances for said land from the government down to the defendants, and the title is good. (8) That the abstract furnished by defendants to plaintiff does not show any legal defects or incumbrances, and there are none in fact. The court therefore finds as a conclusion of law that the plaintiff is not entitled to recover in this action, but that defendants are entitled to recover costs. It is therefore considered and adjudged that the defendants do have and recover of plaintiff their costs and disbursements in this action."

H.K. Hanna, for appellant.

C.W. Kahler and Wm.M. Colvig, for respondents.

1. STRAHAN, C.J., (after stating the facts.)

Upon a second appeal the opinion of the court upon the former appeal, so far as the same facts appear, becomes the law of the case, and governs and controls the parties and the court in every subsequent step in the cause. Powell v. Railroad Co., 14 Or. 22, 12 P. 83; Bloomfield v Buchanan, 14 Or. 181, 12 P. 238; Budd v. Railway Co., 15 Or. 404, 15 P. 654; Thompson v. Hawley, 16 Or. 251, 19 P. 84. When this case was formerly...