Neppach v. Oregon & C.R. Co.

• Decision Date: 17 April 1905
• Citation: 80 P. 482,46 Or. 374
• Parties: NEPPACH v. OREGON & C.R. CO.
• Court: Oregon Supreme Court

80 P. 482

46 Or. 374

NEPPACH v. OREGON & C.R. CO.

Supreme Court of Oregon

April 17, 1905

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

Action by Anthony Neppach against the Oregon & California Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On March 24, 1883, the defendant contracted to sell to the plaintiff and one C.A. Himpel (the contract being in the name of Himpel) five sections of land in the eastern part of Multnomah county and within the indemnity limits of the grant made to it by act of Congress of July 25, 1866. The contract price was $12,866.36, of which $1,286.69 was paid in cash and the balance, with interest, was to be paid in 10 annual installments, the last becoming due March 24, 1893. The times of payments were made of the essence of the contract, and it was stipulated and agreed that, in case of default, the contract, so far as it might bind the defendant, should become absolutely null and void. The land was included also within the limits of a prior grant of Congress to the Northern Pacific Railroad Company, and soon after the making of the contract a controversy arose as to whether it belonged to that company or the defendant. It is claimed and alleged that, owing to this controversy, and to the uncertainty of the defendant's title, a parol agreement was made and entered into between plaintiff and Himpel and Schulze, the land agent of the defendant, a short time before the second payment became due, that the time for making the deferred payments should be postponed until the settlement of such controversy, and, in case it should be decided in favor of defendant, plaintiff and Himpel should make the deferred payments and receive title to the land, but, in case it should be decided against defendant, they should make no claim for damages, but should be entitled to a return of the money already paid; that on March 24, 1884, when the second payment became due, it was tendered to defendant, but was declined, and plaintiff and Himpel were informed that no more payments would be accepted or received until the overlap controversy was settled; and that, relying upon such statement and the extension agreement referred to, they made no tender or offer to perform prior to the settlement of such controversy, except in March, 1885, when they inquired of defendant's agent if the controversy had been determined and if defendant was ready to accept further payments offering to make the same, but were informed that defendant was not yet ready to comply with its contract, and would not receive any payments until the overlap controversy was determined. This controversy was pending in various forms in the United States land offices and the courts until January 1900, when it was finally settled in favor of the defendant by the Supreme Court of the United States. United Staetes v. Oregon & California Railroad Co., 176 U.S. 28, 20 Sup.Ct. 261, 44 L.Ed. 358. The plaintiff, to whom the contract for the sale of the land had in the meantime been assigned, thereupon tendered defendant the balance due, and demanded a conveyance, but it refused to accept the money or to comply with the contract on the ground that all rights of the plaintiff had been forfeited for failure to make the payments as stipulated. This action was afterwards commenced to recover damages for a breach of the contract. Plaintiff had judgment for $47,000, and the defendant appeals.

Wm. D. Fenton and W.C. Bristol, for appellant.

O. F. Paxton and W.T. Burney, for respondent.

BEAN, J. (after stating the facts).

The controlling propositions made by the defendant on this appeal are: First, there never was any agreement or understanding for an extension or waiver of time of performance; second, if such an agreement were made, Schulze had no authority to act for or to bind the defendant thereby; third, if such contract were made, and Schulze had authority to bind the defendant, it was void because within the statute of frauds, and not in writing; and, fourth, the court erred in ruling and instructing the jury that the measure of damages for a breach of the contract was the value of the land agreed to be conveyed at the time of the breach, less the balance due on the purchase price, and in admitting evidence tending to prove such value.

The first two points involve questions of fact. They were submitted to and decided by the jury adversely to the defendant, and if there was evidence to support the verdict it cannot be disturbed. We are only required, therefore, to look far enough into the record to ascertain whether or not this is so, and not to determine whether or not this is so and not to determine whether it is in accordance with the weight of the testimony. The plaintiff testified: That he was a half owner with Himpel in the contract for the purchase of the land, and that such fact was known to the defendant and its officers at the time it was made. That after the contract had been executed, in the latter part of the summer or early fall of 1883, Himpel told him that there was a question about the title to the land which the defendant had agreed to sell to them, and that Schulze had been talking to him about it. That thereupon he and Himpel immediately went to the office of Schulze to see about the matter, and Schulze told them that there was a dispute between the defendant and the Northern Pacific Railroad Company concerning the land, and in his (Schulze's) opinion the Northern Pacific would finally get it. That in view of this controversy he would not accept any further payments on the contract with the defendant until it was settled. That he was the land agent of each company, and that, if the Northern Pacific Company got the land, he would sell it to them on the same terms, but in that event they must take their money back from the defendant without interest, and without making any trouble. That, if the Northern Pacific should lose the land, they should commence making the payments on their contract with the defendant the same as before. That witness and Himpel agreed to this arrangement, and relied upon the same. That they heard nothing more about the matter, but when the second payment became due witness went to the office of Schulze to inquire about it, and, finding him out of the city, and having no written contract for the extension of the time of payment, offered to make the second payment to the clerk in charge of the office, who received the money, and made the proper credit on the contract. That when Col. Moores, who was acting as land agent during Schulze's absence, learned of the payment, he refused to accept it, and told witness that he had positive instructions from Schulze not to take the money or receive any more payments on the land until the overlap controversy was settled. That the money was then handed back to witness, and Moores erased the credit on the contract by drawing lines with red ink through it. That nothing more was done until about the time the third payment became due, when plaintiff and Himpel again went to the office of the defendant to inquire about the overlap controversy, and to see whether it was ready to receive payments on the contract, and there had a conversation with Mr. Andrews, who in the meantime had succeeded Schulze as land agent. That witness asked Andrews about the controversy, and whether he and Himpel should go ahead with their payments, and talked over with him the arrangements they had made with Schulze. That Andrews said: "Schulze is certainly mistaken about our not getting the land," whereupon Himpel said: "We will make the payments any time that you are prepared to make your deed. We stand prepared to pay the whole contract right up at any time. Are you ready now?" And Andrews said: "No, we are not in a position to make a deed now. There is only one thing to be done, and that is to let the matter rest until this controversy between the Oregon & California Railroad Company and the Northern Pacific Railroad Company is settled, and when it is I will personally notify you." That Andrew took the addresses of witness and Himpel, and they went away from the office. That a few weeks later when witness returned from one of his trips in the country, he found a note to him from Andrews, requesting him to deliver an inclosed sealed letter to Himpel. That on May 3, 1885--the first time he saw Himpel thereafter--he delivered the note to him. That it was from Andrews, dated April 4, 1885, and informed Himpel that the second and third payments on the contract with the defendant had not been made, and, unless they were within 30 days from date, the contract would be canceled. That witness and Himpel went immediately to see Andrews, and asked him what the letter meant, and Andrews said: "I have sold the land to other parties, and your contract is canceled; you are too late." That witness and Himpel protested against this action, but Andrews said: "No use to talk about it at all. You are too late. The land is sold." That they could get no further satisfaction out of Andrews, and so went away. Himpel corroborates this testimony of the plaintiff, and Schulze himself testified that the refunding to the plaintiff and Himpel of the second payment tendered by them on the contract was made by Moores in pursuance of a general order given by him that no further payments were to be received on the contract because the title to the land was in dispute; that "I gave orders to this effect to my assistant, I.R. Moores, and told purchasers of lands under like conditions at every opportunity that the company would not accept any further payments on lands of this character until the question of title had been settled, but that meanwhile the contracts should not be forfeited. *** I...