De Vol v. Citizens' Bank

• Decision Date: 03 March 1925
• Citation: 233 P. 1008,113 Or. 595
• Parties: DE VOL v. CITIZENS' BANK.
• Court: Oregon Supreme Court

233 P. 1008

113 Or. 595

DE VOL v. CITIZENS' BANK.

Supreme Court of Oregon

March 3, 1925

In Bank.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by George De Vol against the Citizens' Bank. Judgment for defendant, and plaintiff appeals. Affirmed.

This action for recovery of money deposited with the defendant bank was before this court on a former appeal ( De Vol v Citizens' Bank, 92 Or. 606, 179 P. 282, 181 P. 985) and was reversed for failure to give a certain requested instruction. When the cause was remanded, a general denial was filed as the bank's amended answer, and on trial the jury found for the defendant. The cause now comes before us for consideration on numerous assignments of error in the admission and rejection of testimony, and in giving and refusing to give certain instructions.

Plaintiff alleges that, on October 30, 1905, he sold certain lots in the city of Portland, Or., to A. W. Lambert, then president of the defendant bank, for the sum of $5,000, and, at his request, by warranty deed conveyed them to A. W. Whitmer. At the time this property was sold litigation was pending between the plaintff and the city of Portland, relative to the validity of certain special assessments which had been levied on the property in question for street improvement purposes. He avers that from the proceeds of the sale to Lambert he deposited $1,000 with the defendant bank, to be held by it as security for the performance by him of an agreement to satisfy and discharge the municipal liens above mentioned, and claims that the bank accepted this money with the understanding and agreement that it was to keep the same until the litigation was settled. If the plaintiff was successful in his litigation with the city, and the title to the property was cleared, then the money deposited was to be returned to him, together with interest thereon at 4 per cent. per annum; but, if unsuccessful, and default was made in the performance of his contract, then such money should be applied for the purpose of clearing the title to the property which the plaintiff had sold.

The circuit court, on July 6, 1908, upheld the contention of plaintiff in the writ of review, and set aside the assessments in question. On March 23, 1910, the common council of the city of Portland passed an ordinance reassessing the cost of said street improvement, whereupon the plaintiff, in the following month, filed notice of appeal, and in addition thereto petitioned for writ of review. The circuit court dismissed the writ, and on appeal this court, in September, 1914 ( Reiff v. Portland, 71 Or. 421, 141 P. 167, 142 P. 827, L. R. A. 1915D, 772, in which plaintiff was a party), affirmed the decree of the lower court, and thereby established the regularity and validity of the reassessment proceedings. While that proceeding was pending no action was taken by plaintiff to prosecute his appeal for the purpose of adjudicating the amount of damages sustained to his property, but he in fact did all that was possible to prevent the matter from being determined, and finally, in April, 1916, moved that the appeal be dismissed.

On November 6, 1905, Lambert & Whitmer conveyed by warranty deed the lots mentioned to James Monks for $7,500, and accepted a mortgage in the sum of $5,000 to secure the balance due on the purchase price. This mortgage was then assigned to a Dr Clark. When it became due--November 5, 1908--there was an unpaid balance of $1,100 and interest, and Monks refused to pay the same until the municipal liens in question had been satisfied of record. On December 12, 1908, the bank, at the request of Lambert & Whitmer, applied the money thus deposited in payment of the amount due on the mortgage. After the decision of the Supreme Court was rendered, sustaining the validity of the special assessment liens, Monks believing that ample opportunity had been given plaintiff to discharge them by litigation or payment, entered into an agreement of compromise with the city on November 29, 1915 which was approved by ordinance, whereby he paid it the sum of $1,280.87 in full satisfaction of these liens. Summarizing this transaction, it may be said the bank paid Monks' mortgage indebtedness and Monks paid the amount due on the liens. It is the theory of the plaintiff that Monks' satisfaction of the liens cleared the title and constituted a performance of the contract on his part, and he therefore demands judgment against the bank for the amount deposited, together with interest thereon. Defendant denies the contract as alleged and the performance of the same, but admits that $950 was deposited with it, which it claims belonged to plaintiff's sister, Mary De Vol, in whom was vested the legal title to the property at the time it was conveyed to Whitmer.

Olson & Bain, of Portland, for appellant.

Malarkey, Seabrook & Dibble, of Portland, for respondent.

BELT, J. (after stating the facts as above).

There was evidence offered to the jury for its consideration that the plaintiff was the owner of the lots in question, and that he deposited $1,000 with the bank under the terms of his alleged contract, so we need not be further concerned with that phase of the case. The more serious question that confronts us is: Did the plaintiff perform the contract as alleged in his complaint? If there was any evidence to support this contention, it was a question of fact to be submitted to the jury; but if no evidence was offered relative to that issue, it then became a question of law for the court to decide.

As we construe the contract plaintiff was obliged to exercise due diligence in carrying on the litigation for the purpose of canceling the reassessments levied, and he had a reasonable length of time in which to do so. The money was deposited with the bank for the benefit of plaintiff's grantee, and De Vol was not permitted, under the terms of his agreement to allow the property to remain incumbered beyond a reasonable length of time. At...