Strong v. Moore

• Decision Date: 06 June 1922
• Parties: STRONG ET AL. v. MOORE ET AL. [a1]
• Court: Oregon Supreme Court

207 P. 179

105 Or. 12

STRONG ET AL. v. MOORE ET AL. ^[a1]

Supreme Court of Oregon

June 6, 1922

In Banc.

Appeal from Circuit Court, Multnomah County; John McCourt, Judge.

Suit by Margaret H. Strong and another against B. H. Moore and another. From decree that plaintiffs should pay the clerk of court certain amount of money, and that defendants should convey certain property to plaintiffs, plaintiffs appeal, and defendants file a cross-appeal. Suit dismissed.

This is a suit brought by Margaret H. Strong and Kate R. Henderson against Ben H. Moore and Mabel E. Moore to enforce an alleged contract for the sale of land claimed to have been created by the asserted acceptance of an option. In some respects the evidence is contradictory. It will not be necessary to give a detailed account of the testimony of the various witnesses because after a careful examination of the record of the evidence we are satisfied with the findings of fact made by the trial judge who had the advantage of seeing and hearing the witnesses; and so it is sufficient to say, without further discussion, that we approve the findings of fact made by the trial court.

George W. Brown, Fannie B. Brown, and Melville W. Brown owned the west 55 feet of lot 5 and the west 55 feet of the south 8 feet of lot 6 in block 251 in the city of Portland, on which was standing an apartment house known as Elton court. Emma G Robinson was authorized by plaintiffs to act "for them in connection with realty transactions." While acting as such agent, Emma G. Robinson on June 8, 1920, took in her own name, but for the benefit of the plaintiffs, an option from the Browns. Emma G. Robinson paid the Browns $1,000 for the option. The premises were described in the option thus:

"The following described real property to wit: The west 55 feet of lot 5 and the west 55 feet of the south 8 feet of lot 6 in block 251 in the city of Portland, Multnomah county Oregon."

The purchase price was fixed at $36,000, "to be paid as follows: $1,000.00 cash this day paid as above set out $10,000.00 cash on delivery of deed, $25,000.00 in the form of a promissory note, to be secured by first mortgage upon the above-described property, said note and mortgage to be executed and delivered at the time of delivery of deed, and to be dated at that time and to be payable on or before five years after date and to bear interest at the rate of 6 per cent. per annum, payable quarter yearly."

The owners agreed to furnish an abstract showing the title free from incumbrance except the second half of taxes for the year 1919. It was provided that--

If the title "proves valid and marketable, and the purchaser fails to consummate the purchase within thirty days from date of the approval of title, the $1,000.00 deposit paid as above set out shall become forfeited and be retained by the said owners."

An abstract was furnished on June 14, 1920, showing the required title. After receiving the abstract, Emma G. Robinson--

"took up with defendants herein named the matter of securing a loan upon said property sufficient to complete said purchase." "Said defendants did not procure the loan for the plaintiffs in time to complete the taking up of said option, and defendants were unwilling to make said loan, and upon the 14th day of July, 1920, plaintiffs, acting through said Emma G. Robinson, their agent, agreed to sell, assign and transfer to defendants all rights conferred upon plaintiffs by said option, in consideration of the agreement made by the defendants to complete said option by complying with all of the terms thereof, (2) the repayment to plaintiffs the sum of one thousand dollars, paid to secure said option, and (3) the execution and delivery to plaintiffs of a written option to purchase said real property from defendants on or before January 15, 1921, at a price of $38,500, payable $13,500 cash at the time plaintiffs should elect to purchase the property under the option, and the balance to be paid by assuming a mortgage upon the property for $25,000, due five years after date, bearing interest at six per cent. payable semiannually, which mortgage was to be given by defendants upon completing said option as aforesaid."

The option held by Emma G. Robinson was transferred to the defendants. The Browns agreed to extend this option one day. On July 15, 1920, the Moores exercised the right conferred by the option and paid $10,000 to the Browns, gave their note to the Browns for $25,000, together with a mortgage on the real property to secure the note, received a deed from the Browns, and "contemporaneously with said transaction the defendants paid to said Emma G. Robinson the sum of $1,000, the amount which she had paid to" the Browns.

"As a part of the entire transaction, defendants on July 15, 1920, after the defendants had acquired title to said real property" executed and delivered to the plaintiffs an option by the terms of which the plaintiffs were given the "exclusive right to purchase or sell the following described real property, to wit: The west 55 feet of lot 5 and the west 55 feet of the south 8 feet of lot 6 in block 251, in the city of Portland, Multnomah county, state of Oregon, for a period of six months from this date, and for the following amounts of money, to wit: $13,500.00 cash and assuming and agreeing to pay a note and mortgage this date executed for the sum of $25,000.00, bearing interest at the rate of 6 per cent. per annum."

The Moores agreed to furnish an abstract showing title free from incumbrances except the mortgage for $25,000, and they also agreed:

"Upon the payment of the sum of $13,500 as hereinbefore provided, that we will execute a full warranty deed to the above-described real property in favor of" the plaintiffs.

The Browns were carrying insurance on the building amounting to $34,000 when on June 8, 1920, they gave the option to Emma G. Robinson, and they continued to carry this insurance until they conveyed to the Moores. The mortgage given by the Moores required "that the property should be insured against loss by fire to the amount of at least $25,000.00, and that the indemnity provided by the insurance policies should be made payable to the mortgagee as his interest might appear," and on July 15, 1920, when the Moores purchased the property they paid to the Browns $230.89, the amount of the unearned premiums on the insurance policies, and the policies were thereupon assigned to111 the Moores with the loss made payable to the mortgagees as their interest might appear.

On August 7, 1920, "a fire totally destroyed the roof and interior of said building and partially destroyed the walls thereof," and afterwards the insurers "paid to the defendants and said mortgagees as provided by the terms of the several insurance policies and said mortgage the sum of $34,000.00 and thereby discharged said mortgage of $25,000.00 upon said premises given by defendants as aforesaid on or about July 15, 1920."

On December 16, 1920, the plaintiffs served upon defendants a writing notifying the defendants that the plaintiffs elected to exercise the right given by the option of July 15, 1920, and stating:

"'We, the undersigned, hereby tender to you $13,500.00 in cash, we to receive from you the following": An abstract, a warranty deed, containing covenants of warranty "except as to the first mortgage of $25,000," and "said B. H. Moore and Mabel E. Moore to furnish and transfer all their right, title and interest in and to insurance policies covering the improvements on the above-described real estate upon which there has been an adjudicated loss found payable of $34,000.00, we to take said insurance free and clear from all claims against the same except as to the rights of said first mortgage hereinabove set forth. * * *

"The buildings upon said property having been materially damaged by fire during the life of said option we hereby demand that the sums of money due or to become due under said policies of insurance and the rights thereunder be assigned to us in lieu of the damaged building, demanding this as our rights under said option and making this as a formal tender in writing of complete performance of all the duties and obligations devolving upon the undersigned under the terms of said option."

On December 24, 1920, the plaintiffs notified the defendants that--

On December 27, they would meet the defendants at the place "where B. H. Moore makes his headquarters," to complete "the taking up of said option;" and, accordingly on December 27, "the plaintiffs, by and through their attorney, tendered to said defendants $13,500, provided the defendants here would convey said real property to plaintiffs subject to said mortgage of $25,000, and pay to the said plaintiffs the sum of $34,000 received from insurance upon the building upon said property, and that the defendants refused said offer, and said defendants tendered in lieu thereof a deed to the plaintiffs and a mortgage to be executed by said plaintiffs, payable to said defendants in the sum of $25,000."

In their complaint the plaintiffs allege that--

They "offer to pay to said defendants or to the order of this court, the sum of $13,500, legal tender according to the laws of the state of Oregon, upon the execution and delivery by the defendants of a deed, * * * together with an accounting for the insurance policies covering said property, or a right to said policies held by said defendants, and full payment to plaintiffs of the moneys received by defendants in said insurance policies."

The decree of the circuit court directed the plaintiffs to pay to the clerk of the court the sum of $13,500 within 10 days, and that the defendants should convey the property to the plaintiffs by a warranty deed free from...