McCarty v. Helbling

• Decision Date: 10 November 1914
• Citation: 73 Or. 356,144 P. 499
• Parties: MCCARTY v. HELBLING ET AL.
• Court: Oregon Supreme Court

144 P. 499

73 Or. 356

MCCARTY v. HELBLING ET AL.

Supreme Court of Oregon

November 10, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Suit for specific performance by James A. McCarty against Louis Helbling and another. From decree for defendants, plaintiff appeals. Reversed and remanded, with directions.

F. M. De Neffe, of Portland (Conley & De Neffe, of Portland, on the brief), for appellant. Thos. O'Day, of Portland (J. M. Haddock, of Portland, on the brief), for respondents.

RAMSEY, J.

This is a suit in equity to obtain a decree for the specific performance of a written contract or "option" for the sale and conveyance of real property. The defendant Helbling is the owner in fee of the S.W. 1/4 of section 34 in township 20 S., range 4 W., of the Willamette Meridian containing 160 acres, and the defendant Barnes is the owner in fee of the E. 1/2 of the N.E. 1/4 of section 8 in township 21 S., range 4 W., of the Willamette Meridian, containing 80 acres.

On November 8, 1909, a contract or "option" in writing was executed to J. S. Milne by the defendants through their agent, M. G. Griffin, of which the following is a copy:

"Option.

"For Agreement of Sale of Real Estate.

"November 8, 1909.

"I hereby agree to sell to J. S. Milne of Cottage Grove Oregon, or assigns, at any time within thirty (30) days from date hereof, the following described real estate, situate in the county of Douglas and Lane, in the state of Oregon, to wit: The E. 1/2 of the N.E. 1/4 of section 8, township 21 S range 4 W., containing 80 acres, more or less. And also the S.W. 1/4 of section 34 in township 20 S., of range 4 W., containing 160 acres, more or less. The total price, $7,540.00, payable as follows, to wit: $100.00, the receipt of which was acknowledged September 10, 1909; $400.00, the receipt of which was acknowledged September 27, 1909; $1,500.00, the receipt of which is hereby acknowledged, paid this date. Which is credited to him should he complete the purchase on terms named, otherwise said sums to be retained as liquidated damages and commissions for our own use (M. G. Griffin, Louis Helbling and Oscar Barnes).

"I agree to furnish abstract of title to these lands to J. S. Milne, his heirs and assigns. Time is of the essence of this agreement. (The above-mentioned payments to be forfeited, if terms are not complied with.) Terms are thirty (30) days from date: $760.00 to Oscar Barnes and $1,270.00 to Louis Helbling; balance, note and mortgage to said Oscar Barnes and Louis Helbling, as their interest may appear (secured) ten per cent. interest, six months.

"M. G. Griffin,

"Duly Authorized Agent for Owners.

"I accept the foregoing agreement and will abide by its terms.

J. S. Milne.

"We accept the foregoing agreement and will abide by its terms.

Louis Helbling.

"Oscar Barnes.

"Witnesses:

"I. J. Fisher.

"Jerome Brant."

M. G. Griffin was the agent of the defendants, and they approved the said contract as is shown supra. J. S. Milne was acting for other parties. The total price agreed to be paid for said two tracts of land was $7,540. Milne had paid thereon, in two partial payments, the sum of $500, and he paid at the time of the execution of said contract, $1,500 additional, making a total of $2,000 that Milne paid thereon, leaving unpaid on the purchase price of said property the sum of $5,540.

Said contract states that "time is the essence" thereof, and that said amounts so paid were to be forfeited if the terms of said agreement should not be performed. By the terms of said contract, there were to be paid in 30 days from the date thereof, $760 to the defendant Barnes, and $1,270 to the defendant Helbling; said amounts to be so paid in 30 days aggregating $2,030. The balance that would have remained after making said payments, if they had been made, was $3,510. For this amount, a note and a mortgage were to have been made to the defendants, payable in six months, with interest thereon at the rate of 10 per cent. per annum. Griffin agreed to furnish Milne or his assigns an abstract of title to said premises. By said contract, Griffin, for the defendants, agreed to sell said real premises to Milne or his assigns, at any time within 30 days from the date of said agreement.

The tract owned by the defendant Barnes was a homestead. He had completed his residence and cultivation thereof, and had made his final proof and had received the receiver's final certificate for said homestead; but at the date of said contract he had not received his patent for said land, but was expecting to receive it soon.

An abstract for the Barnes tract failed to show that a patent for his land had been issued by the United States. Soon after the execution of said contract, J. S. Milne, for a valuable consideration, assigned the same to the plaintiff, James A. McCarty, and he is the owner and holder thereof, as trustee. The 30 days for the completion of the purchase of said property under the terms of said contract expired on December 8, 1909; but negotiations between the parties for said sale continued for months thereafter.

The complaint alleges, inter alia, the following:

"That defendants were not able, until some time after the expiration of 30 days from said November 8, 1909, and, to wit, on or about March 11, 1910, to furnish a good merchantable title to said land, for the reason that said defendant Oscar Barnes did not have a United States patent to a portion of said land. That on or about December 24, 1909 defendants and the plaintiff, taking into consideration, and on account of, the fact that defendant Oscar Barnes did not yet have said patent, mutually agreed that the performance of all acts and things which under said contract dated November 8, 1909, were to be performed within 30 days from said November 8, 1909, should be deferred and postponed

until defendants should receive and have recorded in the county records of the proper county the said patent to said land, and until defendants should have notified the plaintiff of the recording of said patent; and at the same time it was further mutually agreed that in consideration of the postponement of the performance of said contract, as aforesaid, the plaintiff should pay to the defendants, and the plaintiff did then pay to the defendants, and the defendants accepted from the plaintiff, the sum of $70.78, as interest, at the rate of 10 per cent. per annum on the sum of $5,540.00, being the unpaid portion of said purchase price, from November 8, 1909, to said December 24, 1909; and that, in consideration of the payment of said interest money, the defendants agreed to waive, and did waive, whatever rights they had to insist on said contract being performed by said plaintiff within said 30 days, in accordance with its said provisions. That on the said date it was further mutually agreed by and between the defendants and plaintiff that upon receipt of said notice the plaintiff should deposit in escrow with Hartman & Thompson, bankers, at Portland, Or., for the use and benefit of defendants, the sum of $2,030 to cover said payments of $760 and $1,270 respectively, as aforesaid, together with a promissory note, dated on the same date, signed by the plaintiff, in favor of the defendants, in the sum of $3,510, due in six months from the date thereof, with interest at the rate of 10 per cent. per annum, payable semiannually, together with a properly executed mortgage on said premises as security for said note, said mortgage to be signed by the plaintiff, and was to be in favor of the defendants, and dated the same date as said note; and that simultaneously with the deposit of said sums of money and the said promissory note and mortgage as aforesaid, it was agreed that defendants should deposit with said Hartman & Thompson properly executed deeds of general warranty, conveying all of said land to plaintiff, free and clear of all liens and incumbrances, together with a complete abstract of title to said land certified to as of that date, showing a good merchantable title to said land in the defendants. That defendants recorded said patent in the county records of Douglas county, Or., on or about March 11, 1910, but did not notify plaintiff thereof until on or about May 11, 1910, and that immediately after receiving said notice plaintiff deposited with said Hartman & Thompson, for the use and benefit of defendants, in accordance with the terms of said contract, the sums of $760 and $1,270, together with a properly executed promissory note for $3,510 in favor of the defendants, together with a mortgage on said land for the sum of $3,510 to secure said note, in accordance with the terms of said contract, and plaintiff immediately thereafter notified defendants that said sums of $760 and $1,270 and said note and mortgage had been deposited as aforesaid. That defendants have failed, neglected, and refused to deposit with said Hartman & Thompson properly executed deeds and an abstract of title to the said premises in accordance with said contract, and defendants still refuse to deposit same, and to carry out their part of said contract. That plaintiff left said sums of $760 and $1,270 and said promissory note and mortgage on deposit as aforesaid, with said Hartman & Thompson, for a reasonable length of time, to wit, until June 16, 1910, and that defendants knew that said sums of money, note, and mortgage were thus on deposit, and that on and ever since said May 11, 1910, plaintiff was, and now is, ready, able, and willing to complete the purchase of said premises in accordance with the terms of said contract, and has been able, ready, and willing to pay said sum of $2,030 and to deliver said note and mortgage, and that at divers and sundry times since said

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