Thompson v. Hawley

• Decision Date: 23 April 1888
• Citation: 19 P. 84,16 Or. 251
• Parties: THOMPSON v. HAWLEY.
• Court: Oregon Supreme Court

19 P. 84

16 Or. 251

THOMPSON v. HAWLEY.

Supreme Court of Oregon

April 23, 1888

Appeal from circuit court, Lake county.

For opinion on former appeal, see 12 P. 276.

(Syllabus by the Court.)

Upon a second appeal, if the facts are the same, the former opinion is the law of the case, and must govern it in all of its subsequent stages.

When the defendant inherited an equitable interest in lands, and was entitled to have his title perfected upon the payment of $160, and then sells said lands for $1,800, and agrees to perfect the title, and refuses to do it, the purchaser may elect to specifically enforce the agreement by acquiring the defendant's equity through the decree, and have compensation in damages for the amount necessary to be paid to perfect the title.

STRAHAN J.

The question of law upon which the rights of the parties mainly depend was settled on the former appeal. 14 Or. 199, 12 P 276. We there held that, "by the terms of the contract pleaded by the defendant, he was bound to make a 'good and sufficient conveyance, with full warranty only against my heirs, executors, and administrators.' If this was the agreement, it bound the defendant to convey such title as he had, and such conveyance must contain the covenants contained in the writing. On the other hand, if the agreement is as set out in the complaint, it can only be performed by the vendor's making and delivering a deed that shall vest the fee in the vendee. Such contract requires a conveyance that shall be good in substance, and that shall vest in the grantee a fee-simple in the land conveyed." After the cause was remanded, the pleadings were amended, but the issues made present the same questions of law; so that nothing further need be said on this branch of the case, for the reason the former opinion must govern. But the evidence has been taken in writing, and we must now consider the question of fact as to which one of the writings set out in the pleadings contains the terms of the contract made between the parties on the 25th day of June, 1880. The plaintiff has submitted in evidence the following contract made between himself and the defendant on that day "SILVER LAKE, LAKE CO., OR., June 25, 1880.

"This will certify that I have this day sold my band of sheep, numbering (1,505) fifteen hundred and five head of old sheep. The lambs to be counted, after they get well from altering, for $1.50 per head. Also the hay ranch belonging to the estate of Lyman L. Hawley. And I hereby agree and bind myself to make the best title that I, as Lyman L. Hawley's heir, can make, and perfect the same, for the sum of (1,800) eighteen hundred dollars; the kitchen and household furniture to go with the ranch. Also two head of milk cows, with calves, one horse, two wagons, set of harness, mowing-machine, hay-rake, and forks, and other tools belonging to the ranch; also 2,500 poles that have been cut upon Buck creek. Thompson to pay $2,000 down, and to have four years to pay balance. Interest to be paid yearly, at the rate of ten per cent. per annum.

[Signed] IRA HAWLEY."

It is conceded by the defendant that this is the original writing signed by him at the time the contract was made, and as a memorandum thereof; but it is contended by the defendant he afterwards went to Lakeview, and procured the writing set out in Thompson v. Hawley, 14 Or. 204, 12 P. 278, to be prepared, signed it, and delivered it to the plaintiff, and that it thereby superseded the former writing, or is to be regarded as a modification thereof. The plaintiff gives the following account of this second writing: "After having made those notes to Mr. Hawley, he pulled a paper out of his pocket; stating that he had been down to Lakeview and got a regular lawyer to draw up a bond binding him to deed me that land. I said, 'I did not look for anything now, Mr Hawley, until after being paid in full.' He said that I had done so well by him, paying him his own price for everything, that he would just give me a good bond, for fear that contract or paper I drew up was not binding enough on him. I said I supposed the paper I drew up was plenty good enough. I asked him what kind of a bond he had. He said, 'You read it.' I took it, and glanced over it, my eyes being too bad to...