Lowe v. Harmon

• Decision Date: 30 June 1941
• Citation: 115 P.2d 297,167 Or. 128
• Parties: LOWE <I>v.</I> HARMON
• Court: Oregon Supreme Court

167 Or. 128

115 P.2d 297

LOWE

v.HARMON

Supreme Court of Oregon.

Submitted on briefs June 30, 1941.

Reversed July 15, 1941.

Rehearing denied September 9, 1941.

Action — Declaratory judgment

1. In declaratory judgment proceeding, trial court had authority to grant executory or coercive relief on defendant's petition for supplemental relief after entry of judgment.

Action — Declaratory judgment

2. The supplemental relief, contemplated by Uniform declaratory judgments act and federal declaratory judgments act, is not limited to further declaratory relief, and such further relief may include an assessment of damages or other coercive relief which may be obtained by a petition in the same action and in same court in which the declaratory relief was granted.

Judges — Declaratory judgment

3. In a declaratory judgment proceeding, wherein defendant after entry of judgment filed a petition for supplemental relief, trial court did not err in denying plaintiff's motion for a change of judge to hear supplemental proceeding, since supplemental proceeding would not be considered, as a separate proceeding from the original proceeding when it was prosecuted in the same court before the same judge as the original proceeding.

Judgment — Res judicata

4. A declaratory judgment is final and "res judicata" the same as any other judgment.

Judgment — Conclusiveness

5. A judgment is decisive upon issues tendered by the proceedings.

Contracts — Construction

6. Instruments executed together and as part of same transaction are to be construed together.

Vendor and purchaser — Option

7. An option must be exercised in accordance with its terms, and optionor may reject a tender coupled with unjustified conditions.

Tender — Conditions

8. A tender, to be effectual, must be absolute and without condition; however, it may be good though accompanied with a condition upon which the vendee has a right to insist.

Vendor and purchaser — Option — Deed

9. Vendee's request when making a tender pursuant to option to purchase an undivided one-half interest in realty, that vendor deliver a deed containing a statement of vendor's marital status, if vendor was unmarried, conformed to usual custom observed in preparation of conveyances of real property, and was proper.

Vendor and purchaser — Option — Estate granted

10. Where an option does not specify what estate shall be granted, it calls for an estate in fee simple unless it appears that parties intended to contract on basis of a lesser estate.

Vendor and purchaser — Option — Condition precedent

11. An optionee cannot require optionor to clear up her title, but optionee has right to demand evidence of title as a "condition precedent" to further performance on his part.

Specific performance — Option — Failure of title

12. Generally, specific performance will not be deemed against an optionor who is not able, for want of title, to comply with option contract.

Vendor and purchaser — Option — Tender

13. Where optionee timely deposited amount, provided in declaratory judgment holding that option agreement had not expired, with clerk of circuit court with instruction that amount allegedly due optionee from optionor's sale of timber from realty should be withheld from sum tendered and returned to optionee, optionor's answer, in proceeding for supplemental relief to compel specific performance of option, that optionee had received amount in excess of that which optionor had received from sale of timber, and therefore was not entitled to any credit, presented an issue which should have been determined, since if optionor prevailed upon such issue, a valid "tender" was not made.

  See 16 Am. Jur., 339
                  1 C.J.S., Action, § 18d (11)
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Baker County.

C.H. McCOLLOCH, Judge.

Action by Grace Lowe against L.P. Harmon for a declaratory judgment and decree to the effect that option granted by plaintiff to defendant to buy an undivided one-half interest in real property had been effectively withdrawn, or had expired in accordance with its terms and should be ordered canceled of record, wherein defendant filed a petition for supplemental relief.From an order and decree granting defendant supplemental relief, the plaintiff appeals.

REVERSED.REHEARING DENIED.

Hallock, Donald & Banta, of Baker, for appellant.

Laing, Gray & Smith, of Portland, Heilner, Grant & Fuchs, of Baker, and Howard Bergman, of Salem, for respondent.

KELLY, C.J.

On March 11, 1939, plaintiff executed an agreement, granting defendant an option to buy an undivided one-half interest in the real property therein described, which agreement is as follows:

"For/and in consideration of the sum of One Dollar ($1.00) and other valuable consideration to me in hand paid by L.P. Harmon, party of the second part, I, Grace Lowe, party of the first part do hereby grant to him an option to buy a one-half interest in the John Dickson Estate consisting of approximately 320 acres near Sumpter, Oregon, for the sum of $3,500, less one-half of the selling price of the timber upon this estate whatever that may be.

Witness my hand this 11th day of March, 1939.

Grace Lowe."

On the same day, namely, March 11, 1939, plaintiff executed a power of attorney, which, omitting the acknowledgment, is as follows:

"Seattle, Wash. March 11, 1939.

"Know All Men By These Presents That I, the undersigned, do hereby appoint L.P. Harmon as my attorney in fact to sell any timber on the Dickson Estate for me the same as I could if present, to sign my name, payments to be deposited to my credit in savings account at the National Bank of Commerce, Seattle, Wash.It is agreed that said timber will be paid for as cut.This power of attorney is only for the purpose of sale of the timber on this estate said estate consisting of 320 acres of which I am at present lawful owner.Mr. Harmon holds an option to buy half interest.

Witness my hand this 11th day of March, 1939.

Grace Lowe."

On December 8, 1939, plaintiff filed in the circuit court for Baker county a complaint for declaratory judgment, and thereafter an amended complaint was filed therein by plaintiff.Plaintiff thus sought to obtain a declaratory judgment and decree to the effect that the option above set out had been effectively withdrawn or had expired, in accordance with its terms and should be ordered cancelled of record.Issue was joined thereon and a trial was had.

On March 25, 1940, a declaratory judgment was rendered, which, omitting the findings of fact, is as follows:

"It is considered, ordered and adjudged that the option above set forth and given by the said Grace Lowe to defendant, L.P. Harmon under date of March 11, 1939, be and the same is hereby adjudged and declared to be valid and binding upon the plaintiff, and it is further

Considered, ordered and adjudged that a reasonable time within which defendant may exercise said option is a period of six months from the date of this judgment, and the defendant is hereby allowed said time within which to exercise the same, by paying said sum of $3,500 as aforesaid together with interest thereon at the rate of six per cent (6%) per annum from the date of this judgment until paid, and it is further Considered, ordered and adjudged that neither party hereto shall recover costs from the other."

On September 24, 1940, defendant tendered to the clerk of the circuit court for Baker county for the use and benefit of plaintiff the sum of $3605, that being the sum of $3500 stated consideration in said option agreement, together with interest thereon at six per cent per annum from March 25, 1940.At the time of such tender, the defendant instructed said clerk to turn said sum of money over to plaintiff upon receipt from plaintiff of a statement of any sales of timber from said Dixon Placer mine.Such instruction was set forth in a letter signed by defendant and addressed to said clerk, which letter of instruction contained the following statement:

"This tender is made to you as Clerk of said Court for the purpose of exercising the said option above referred to and you are instructed to deliver the said sum of money to the said Grace Lowe upon her making, executing and delivering to the undersigned, or to you on behalf of the undersigned, a good and sufficient deed conveying to the undersigned an undivided one-half interest in and to the said property referred to.The undersigned is entitled to a credit against said sum on account of money received by said Grace Lowe from the sale of timber from said premises and at the time of delivery of said money she should be requested to furnish a statement as to such sales and thereupon the amount of the credit should be withheld from the sum tendered herewith, and returned to the undersigned."

On October 22, 1940, plaintiff, through her attorneys, transmitted with a letter of instruction to said clerk a bargain and sale deed covering an undivided one-half interest in the property in suit, executed by plaintiff as grantor, without stating her marital status and naming defendant as grantee.The letter of transmittal contained the following instructions:

"This deed is to be delivered by you to Mr. Harmon upon payment to us on behalf of Miss Lowe of the full sum of $3605.00 tendered to you.We observe that Mr. Harmon in his letter accompanying the tender has attempted to make it conditional upon Miss Lowe furnishing a statement as to the sales of timber from the property and your deducting the same from the amount of the tender.

In connection with this we wish to advise you that under the judgment of the Court establishing the option it is expressly provided that the same shall be exercised by paying the full sum of $3500.00, with interest at 6% from the date of the judgment until paid, and no provision whatever is made regarding any offsets for sales of timber, and it is accordingly the...