Whitney Co. v. Smith

• Decision Date: 15 October 1912
• Citation: 126 P. 1000,63 Or. 187
• Parties: WHITNEY CO., Limited, v. SMITH.
• Court: Oregon Supreme Court

126 P. 1000

63 Or. 187

WHITNEY CO., Limited, v. SMITH.

Supreme Court of Oregon

October 15, 1912

Appeal from Circuit Court, Clatsop County; J.A. Eakin, Judge.

Action by the Whitney Company, Limited, against John Smith. Decree for plaintiff, and defendant appeals. Suit dismissed without prejudice.

This is a suit for the specific performance of an agreement, in writing, to convey real property. After alleging its authority to do business as a corporation in the state of Oregon, the complaint states, in substance, that during the year 1902 defendant was in possession and claimed to be the owner of certain described real property in Clatsop county that subsequently, on December 28, 1903, under proceedings to collect delinquent taxes, the land was sold to the county which afterwards deeded it to the parties named, who in turn conveyed it to plaintiff on December 21, 1909; and that the plaintiff ever since then has been and now is the owner of the legal title, and entitled to the possession of all the property. It further alleges, however, that the defendant has been in the possession of the property continuously since 1902 up to January 24, 1910, when it made and entered into a contract with him, which is here set out, to wit: "This is to certify that the undersigned, John Smith, of Albert Oregon, has this day received from the Whitney Company Limited, the sum of two hundred and fifty dollars ($250.00) as part payment on the purchase price of the following described real estate situate in the county of Clatsop, state of Oregon, to wit: [Here follows a detailed description of a strip of land 60 feet in width, being 30 feet in width on each side of the center line of railroad, surveyed for the plaintiff, which it is unnecessary to quote in full.] Balance of said purchase price, to wit, two hundred dollars, shall be paid on or before thirty days from this date. Upon the payment of said sum I hereby covenant, contract and agree to execute and deliver unto the said the Whitney Company, Limited, a good and sufficient deed, conveying unto the said the Whitney Company, Limited, the fee-simple title to all of the above-described real estate and premises free and clear from all liens and incumbrances whatsoever, said deed to be satisfactory to said the Whitney Company, Limited, and to be a full warranty deed, both as to title, seisin and incumbrances. In witness whereof, I have hereunto set my hand and seal this 24th day of January, 1910. [ Signed] John Smith. Witness: Russell Hawkins."

The complaint alleges the payment of $250 at the date of the contract, and that, prior to the institution of this suit, the plaintiff demanded of the defendant the conveyance, and tendered the balance of the purchase price ($200), but that the defendant has failed and refused to execute the conveyance, disputes the plaintiff's right to the possession of the premises, and denies the contract in toto. The plaintiff further alleges bringing into court the balance of the purchase price ($200), and prays for a decree of specific performance. Among other things in the answer, the defendant "admits that he has denied that he ever entered into a contract, such as that specified in paragraph 4 of the bill of complaint," being the contract above set out. The essence of the affirmative matter of the answer is that the defendant is unable to speak, read, or write the English language; that the negotiations between himself and the plaintiff were carried on through an interpreter; that, as he understood the contract, and as it was represented to him, the plaintiff was to have only the use of the right of way over the lands in question, and not the legal title thereto, and that when the agreement was drawn up he understood it to embody the contract as he declares it to be, and he avers his willingness to comply with such a contract, but not with the contract set out in the complaint, and which he denies. The new matter of the answer is traversed by the reply. A hearing before the court resulted in a decree according to the prayer of the complaint, and the defendant appeals.

A.W. Norblad, of Astoria, for appellant.

Dolph, Mallory, Simon & Gearin, of Portland, and C.W. & G.C. Fulton, of Astoria, for respondent.

BURNETT J. (after stating the facts as above).

At the hearing the following occurred on the question of tender: A witness for the plaintiff was asked this question "What, if anything, did you do toward tendering this sum of money to Mr. Smith? A. It was offered, I think, by Mr. Edwards--John D. Edwards, of our firm--and offered in gold or notes, or by Mr. Spencer, I am not certain which of the gentlemen, or, perhaps, both; but Mr. Smith reported to me. He claimed he did not understand what they were at, and he would not have anything to do with it; his wife would not sign the deed; and consequently he would not take the money." Defendant objected to this as hearsay and not sufficient to prove a tender. The plaintiff rested its case on this evidence of tender, and the defendant declined to give any testimony; whereupon the court made findings of fact and conclusions of law and decree in favor of the plaintiff, as before stated. The defendant now urges that this testimony was not only hearsay, but that it failed to show that the plaintiff offered performance prior to the commencement of the suit. We think, however, the objection is not available for the benefit of the defendant, because, as he admits having denied the contract, which is virtually a disavowal of any liability thereunder, the law does not require the plaintiff to do the vain thing of tendering payment to a man who refuses in advance to be bound by any provision of the contract. In our judgment, under such circumstances, proof of a...