Pittman v. Thompson, 21892

• Decision Date: 07 April 1980
• Docket Number: No. 21892,21892
• Citation: 45 Or.App. 627,608 P.2d 1223
• Parties: David H. PITTMAN, Appellant, v. Marvin B. THOMPSON and Getta-Violet Thompson, Respondents. ; CA 14836.
• Court: Oregon Court of Appeals

Page 1223

608 P.2d 1223

45 Or.App. 627

David H. PITTMAN, Appellant, v. Marvin B. THOMPSON and Getta-Violet Thompson, Respondents.

No. 21892; CA 14836.

Court of Appeals of Oregon.

Argued and Submitted Jan. 18, 1980.

Decided April 7, 1980.

Carl M. Dutli, Prineville, argued the cause for appellant. With him on the brief was Kowolowski & Dutli, Prineville.

Gerald A. Martin, and Gray, Fancher, Holmes & Harley, Bend, filed the brief for respondents.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

BUTTLER, Presiding Judge.

Plaintiff-buyer appeals from the decree of the trial court denying him relief after the defendants declared a forfeiture under a contract for the sale of land. We reverse.

Plaintiff and defendants entered into an earnest money agreement on August 29, 1976, in which plaintiff agreed to buy and defendants to sell five acres of land in Deschutes county for $12,500. The earnest money agreement was a printed form on which the particular terms of the sale were filled in by the parties. It provided that the sellers "have this day sold to the * * * purchaser" the described land, possession to be delivered on or before September 1, 1976. It stated that $1000 earnest money had been paid and that the balance was payable in installments of $120 per month, including interest at 7%, payable on the 5th of each month beginning October 5, 1976. The agreement further provided that if

" * * * the purchaser neglects or refuses to comply with any of the conditions of this sale within 10 days and to make payments promptly, as hereinabove set forth, then the earnest money herein receipted for shall be forfeited to the seller as liquidated damages, and this contract shall thereupon be of no further binding effect."

The contract declared time to be of the essence. It also contained a provision for award of attorney fees to the prevailing party in any action brought on the contract.

Shortly after the earnest money agreement was signed plaintiff moved a 24-foot mobile home onto the property for use by the carpenter he had engaged to make some improvements on the house situated there. He made arrangements to have the electricity turned on and the account transferred to his name. He and his wife visited the property occasionally on weekends.

Plaintiff made the payment due on October 5, 1976, on October 17. He did so by mailing the amount due with a payment book provided by defendants for that purpose. Defendants entered the date and amount of the payment in the book and mailed it back to plaintiff. He made the November 5 payment on November 30, along with the payment due on December 5. Each payment was entered in the payment book by defendants and the book was returned to plaintiff.

Although the earnest money agreement did not so provide, the parties agree that a more formal land sale contract was to be prepared by defendants' attorney. Plaintiff was notified by defendants in late September and again in early November that the contract was in their attorney's office in Bend and was ready for plaintiff to sign. Plaintiff, who lived in Portland, indicated that he would sign it when he was able to get to Bend on a week day when the attorney's office would be open.

On January 20, 1977, plaintiff received a letter from defendants' attorney notifying him that defendants were declaring a forfeiture under the contract and informing him that unless the mobile home on the property was removed immediately a possessory storage lien would be claimed against it. Plaintiff removed the mobile home.

The payment due on January 5, 1977, had not been made when the January 20 letter was received, nor had the contract drawn by defendants' attorney been signed by plaintiff. In March of 1977 a tender of the payments due to that date was made by plaintiff and refused by defendants. The April payment was tendered and refused on about March 31, 1977.

Plaintiff then commenced this suit seeking specific performance of the earnest money agreement or, in the alternative, return of the money he had expended, including that which he had paid for the work done on the house located on the property. The trial court denied relief, finding that plaintiff had forfeited his rights under the earnest money agreement as shown by his failure to sign the contract prepared by defendants' attorney, failure to make all payments due, and abandonment of the premises.

Although a vendee's interest in real property can be abandoned, see Hull v. Clemens et al., 200 Or. 533, 267 P.2d 225 (1954), there is no evidence here to support the conclusion that plaintiff intended to abandon the property in dispute, nor was there an act of abandonment. The removal of the trailer home by plaintiff was in response to defendants' threat to claim a storage lien against it,...