Lewis et Ux. v. Shook et Ux.

• Decision Date: 25 November 1947
• Citation: 188 P.2d 148,182 Or. 483
• Parties: LEWIS ET UX., <I>v.</I> SHOOK ET UX., and LEE ET UX., and A.S. GRANT, TRUSTEE
• Court: Oregon Supreme Court

182 Or. 483

188 P.2d 148

LEWIS ET UX.,

v. SHOOK ET UX., and LEE ET UX., and A.S. GRANT, TRUSTEE

Supreme Court of Oregon.

Motions to dismiss appeal submitted November 25, 1947.

Allowed and denied December 30, 1947.

Appeal and error — Judgment — Payment — Appeal

1. When a judgment is rendered against a party, his payment of the sum awarded will not preclude him from maintaining an appeal, unless it satisfactorily appears that the payment was not coerced and was made with the view of settlement.

Appeal and error — Decree — Deposit — Appeal

2. Where decree was rendered requiring purchaser to pay balance of purchase price of lands under contract, deposit by purchaser with court of the balance due vendors did not preclude purchaser from maintaining an appeal where the payment was a deposit for purpose of staying execution pending the appeal.

Appeal and error — Decree — Possession — Appeal

3. Where decree was rendered enforcing contract for sale of land and requiring purchaser to pay balance of purchase price under contract, purchasers' possession of the land was not in acquiescence in the decree precluding purchaser from taking an appeal where the possession commenced prior to rendition of the decree.

Appeal and error — Acquiesce — Judgment — Appeal — Estoppel

4. A party who voluntarily acquiesces in, ratifies, or recognizes the validity of a judgment, order, or decree against him, or otherwise takes a position inconsistent with right to appeal, impliedly waives, or is estopped to assert, his right to have such judgment reviewed by an appellate court, but to be a bar acts relied on, as a waiver or estoppel, must be such as to clearly show an inconsistent course of conduct or an unconditional, voluntary, and absolute acquiescence, with intent to ratify or confirm the judgment as rendered, and to abandon right of appeal.

Appeal and error — Decree — Lease — Inconsistent — Appeal — Estoppel

5. Where decree was rendered cancelling contract for sale of land and placing parties in status quo the leasing of a portion of the land was inconsistent with vendors' right to appeal and estopped vendors from appealing.

Appeal and error — Conduct — Not inconsistent — Appeal

6. Where purchasers sought to have contract affirmed and abatement of purchase price to adjust alleged misrepresentations as to amount of timber and presence of a spring on the land and

decree was rendered enforcing contract and requiring purchasers to pay balance of purchase price, conduct of purchasers in leasing a portion of the land was not inconsistent with purchasers' position with reference to contract as to estop purchasers from appealing.

Appeal and error — Jurisdiction — Stipulation

7. Jurisdiction of Supreme Court could not be determined, limited, nor enlarged by stipulation of parties.

                  See 169 A.L.R. 985
                  2 Am. Jur. 969
                  4 C.J.S., Appeal and Error § 212
                

IN BANC.

Appeal from Circuit Court, Baker County.

FORREST L. HUBBARD, Judge.

Hallock, Donald, Banta & Silven, of Baker, for defendants-appellants.

Gallagher & Gallagher and Anthony Yturri, of Ontario, for defendants-respondents, Lee.

Heilner, Grant & Fuchs, of Baker, for plaintiffs-respondents Lewis, and A.S. Grant, trustee, respondent.

Proceeding by Charles S. Lewis and Ruth V. Lewis, his wife, against R.D. Shook and Daisy Shook, his wife, and Chriss Lee, Ethel Lee and A.S. Grant, trustee, for a declaration of rights under contracts for sale of land. From the judgment R.D. Shook and Daisy Shook, appealed. On motions of plaintiffs and A.S. Grant, trustee, and Chriss Lee and Ethel Lee to dismiss the appeal.

Motion of plaintiffs-respondents Lewis and defendant-respondent Grant to dismiss granted.

Motion of defendants-respondents Lee to dismiss denied.

WINSLOW, J., (Pro Tempore)

This matter is here for consideration upon two motions to dismiss the appeal. A statement of the issues involved will materially aid our approach to the question presented. We shall refer to the Lewises as plaintiffs (they are likewise respondents), to the Shooks as appellants (they are likewise defendants), and to the Lees as defendants (they are likewise respondents).

On the 14th day of June, 1946, defendants entered into a contract to sell to appellants what we shall designate herein as four thousand acres of grazing land in Baker county. The full purchase price was $28,000, upon which $15,000 was paid upon the execution of the agreement, the balance to be paid as soon as title was furnished. Appellants were entitled to immediate possession of a portion of the property, and to possession of all of it not later than August 15, 1946.

Prior to the execution of this contract, appellants and plaintiffs had had some negotiations as to plaintiffs' taking part of the real property which appellants contemplated purchasing from defendants. Pursuant thereto, on the 15th day of June, 1946, appellants entered into a contract with plaintiffs for a sale of what we shall term three thousand acres of the land which appellants were purchasing from defendants. There was involved in this deal a small tract which the appellants were likewise purchasing from one Kivett. By the contract last referred to, plaintiffs agreed to pay appellants $23,000, payable $11,000 on or before three months, and the balance on or before six months from date of contract. The contract expressly provides that it was made subject to the consummation of the contract which appellants had made with defendants and that, in case defendants failed in their performance thereof, the contract between appellants and plaintiffs should be at an end, and both parties released from all further obligation thereunder. This contract likewise provided that plaintiffs should have possession of a portion of the property which they were purchasing, at the time of the execution of the contract, and the balance not later than August 15, 1946.

Considerable difficulty ensued, and, on the 19th day of October, 1946, plaintiffs brought this proceeding against appellants and defendants seeking a declaratory judgment and decree as to their rights in the premises. In their complaint, plaintiffs make three major charges: (a) That the amount of merchantable timber upon the premises had been misrepresented to them, they claiming that it had been represented to them that there was at least 2,000,000 feet, while in fact there was only 105,000 feet thereon; (b) that it had been represented to them that a certain spring was on said premises, while in truth and fact said spring was not thereon; (c) that there was an existing encumbrance on said property in what is referred to as the Hobson contract, the same being a contract for sale of the timber by defendants to Hobson. There were other minor matters involved. They prayed for relief as follows:

"WHEREFORE, Plaintiffs pray for a declaratory judgment herein declaring the rights and status of all the parties hereto under said contracts and for a decree declaring and decreeing that the amount of timber was misrepresented to these plaintiffs; that the location of said spring was likewise misrepresented to these plaintiffs and that on account thereof and the other matters alleged in said complaint the plaintiffs have the right to elect to either rescind said contract or to affirm the same and to have the purchase price thereof reduced by the amount which they have been damaged thereby and fixing and declaring the amount of such damage and further declaring and decreeing that the said Chriss Lee has failed to perform his said contract and that such failure is so substantial as to render the completion of the transfer contemplated under said Exhibit `B' impossible or impracticable and for such other and further relief as to the Court may seem just and equitable and for plaintiffs costs and disbursements incurred herein."

To this complaint appellants filed their answer in which they admit that it was represented to plaintiffs that there was 2,000,000 feet of timber upon said premises, but alleged they were unwilling to accept plaintiffs' figure of 105,000 feet as being the maximum amount of merchantable timber located thereon. They admit that it had been represented to plaintiffs that the spring was located on the premises and that the same was not located thereon, but assert that this matter could be adjusted by way of damages. With reference to the Hobson contract, they admitted its existence, but claimed that Hobson had discontinued cutting and had cut and removed only a few thousand feet, that the controversy over that contract would be a controversy between Hobson and defendants, and that plaintiffs should not be permitted to rescind on account thereof. There are some other defects in the title referred to in this answer to which we deem it unnecessary to refer here. Appellants prayed for relief as follows:

"WHEREFORE, having fully set forth their contentions herein, these defendants join with the plaintiffs in praying a full and complete declaration and declaratory judgment, fixing and determining the rights of the parties herein, with the further, incidental, and alternative relief hereinabove specified, and ask the Court to make such declaration and enter such decree in the premises as will fully adjudicate and determine the rights of the parties, and protect the rights and interests of these defendants in the respects above mentioned, and that these defendants have such other, further and more general relief as the Court may deem equitable in the premises, including their costs and disbursements herein incurred, and a reasonable attorneys' fee to be allowed their counsel, as above set forth."

Defendants filed their answer which in substance denied the allegations of plaintiffs' complaint and, by way of further and separate answer, set forth their contract with appellants and alleged their ability and willingness to perform the same, and prayed for relief as follows:

"WHEREFORE, this answering defendant prays...