Merrill v. Hexter

• Citation: 52 Or. 138,94 P. 972
• Parties: MERRILL v. HEXTER et al.
• Decision Date: 14 April 1908
• Court: Supreme Court of Oregon

94 P. 972

52 Or. 138

MERRILL v. HEXTER et al.

Supreme Court of Oregon

April 14, 1908

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Action by Sarah A. Merrill against Louis Hexter and another partners. From a decree granting defendants affirmative relief, plaintiff appeals. Affirmed.

This is a suit by Sarah A. Merrill against Louis Hexter and Lehman Strause, partners as Hexter & Strause, to cancel a lease of real property, and to annul a contract for the sale thereof. The plaintiff, in June, 1905, was the owner in fee of lot 1 in block 4 in Park addition to the city of Portland, Or., at which time she executed to the defendants a written option wherein she granted to them, for a term of 60 days, the right to purchase the real property for $50,000, one-half of which was to be paid in cash, and the remainder in five years, with interest at 4 per cent. per annum, to be secured by mortgage. At that time a storeroom and a basement in a building on the lot had been leased at $125 per month to one Fred Langman who was operating therein a meat market, the remainder of whose term was about eight months. Langman sold his interest in the butcher business to the defendants, who took possession of the store, and on July 13, 1905, they entered into a contract with the plaintiff whereby she demised to them for a term of five years the storeroom and basement for the sum of $100 per month, payable in advance; they covenanting to make no unlawful or improper use of the part of the building leased to them and that at all times they would keep the premises properly drained and in a healthful condition, and would not make any additions to, or alterations in, the property, except in the basement, which at their own expense, they stipulated to enlarge and finish with brick or cement walls and a concrete floor. It was agreed that the defendants at any time during the term of the lease, might, and at the expiration thereof, would, purchase the lot specified, and pay therefor the sum of $50,000 in gold coin of the United States. The contract contains the following material stipulations: "Provided always, and these presents are upon this condition, that, *** if the lessees *** do or shall neglect or fail to perform and observe any or either of the covenants hereinbefore contained, which on their part are to be kept or performed, then and in either of said cases the lessor *** may immediately and without further notice *** or demand enter into and upon the said leased premises or any part thereof in the name of the whole, and repossess the same as of her former estate, *** expell the lessees, *** and annul said option to purchase. ***" Upon securing such lease the defendants established a meat market in the storeroom and basement, and promptly paid the stipulated rent; but on July 25, 1906, this suit was commenced, the complaint setting forth the facts hereinbefore stated, and alleging that the defendants had failed, and upon a demand therefor refused, to keep or perform their covenants, to make the improvements mentioned, or to keep the premises clean. The answer admits the facts stated, denies a breach of any of the covenants of the lease, and alleges that the defendants have fully complied with all the terms of their agreement, except the actual giving of the consideration for the lot, and that about April 1, 1906, they were, and ever since have been, and now are, ready, able, and willing to pay the sum specified, and at the time stated tendered to the plaintiff $50,000 for the real property, but that she refused to accept the offer, or to execute to them a deed of the premises. The defendants, further answering, and for a cross-complaint, set forth the facts relating to their dealings with the plaintiff in respect to the property, and allege that they have fully complied with all the terms of the contract; that, when they tendered to the plaintiff the full consideration, she declined to receive it, and notified them that she would not accept the offer or comply with the terms of her agreement; and that they have been, and were, ready, able, and willing to purchase the real property and to pay therefor the stipulated sum of money, and would abide any order or direction the court might make in reference thereto. The prayer of the answer is that the plaintiff be required specifically to perform her covenant to convey the premises and to execute to the defendants a good and sufficient conveyance of the lot upon the payment of $50,000 as the consideration therefor. The reply denies the allegations of new matter in the answer, and prays, in addition to the relief sought in the complaint, that the cross-bill might be dismissed for want of equity. Based on these issues a trial was had, and it was decreed that the plaintiff was not entitled to any relief, but that her contract to convey the premises should be specifically enforced, and that, upon the payment to her of $50,000 by the defendants, she should execute to them a good and sufficient deed, conveying a marketable title to the lot, particularly describing it, free and clear of all incumbrances, and she appeals.

Geo. E. Chamberlain and E.B. Watson, for appellant.

Joseph Simon, for respondents.

MOORE J. (after stating the facts as above).

It is contended by plaintiff's counsel that cross-bills have been abolished by statute; that the affirmative relief which the defendants sought against the plaintiff is not germane to the original bill; and that the facts thus alleged in the answer are not pleaded as a counterclaim in equity, for which reasons the trial court erred in entertaining the cross-bill and in granting relief based thereon. Cross-bills have been abolished, except in an action at law, where the defendant is entitled to relief arising out of facts requiring the interposition of a court of equity and material for his defense, when he may, upon filing his answer therein, also as plaintiff file a complaint in equity in the nature of a cross-bill, which shall stay the proceedings at law; and the case thereafter shall proceed as a suit in equity. B. & C Comp. § 391. Our statute regulating the practice in suits in equity contains the following provision: "The counterclaim of the defendant shall be one upon which a suit might be maintained by the defendant against the plaintiff in the suit; and in addition to the cases specified in the subdivisions of section 74, it is sufficient if it be connected with the subject of the suit." Id. § 402. In construing the section last mentioned it was held in Dodd v. Dodd, 14 Or. 338, 13 P. 509, that, in a suit for a divorce, the defendant might, in an answer in the way of a counterclaim, demand and obtain affirmative relief, when it appears that such party is entitled to a decree. This decision removed the doubt which the statute abolishing cross-bills had created as to the right of a defendant in a suit in equity to invoke affirmative relief. In Maffett v. Thompson, 32 Or. 546, 52 P. 565, 53 P. 854, Mr. Justice Wolverton, referring to what is now codified as section 402, B. & C. Comp., says: "In so far as it was designed to afford affirmative relief, the counterclaim here provided for takes the place of the cross-bill under the chancery practice as it formerly prevailed." In Dove v. Hayden, 5 Or. 500, it...