Anderson v. Hurlbert

¶11. As a preliminary question defendants renewed their motion to dismiss this appeal for the reason that they assert that the decree of the trial court was not final on account of the provision for the plaintiff to have sixty days within which to pay the balance due on the contract and after such payment is made the defendants should deliver to plaintiff a deed of the premises.

¶2*291The answer of defendants was filed under Section 390, Or. L., for the purpose of obtaining equitable relief arising' out of the facts in the case and requiring the interposition of a court of equity and is material to the defense of defendants. The real question determined by the trial of the ¡cause as an equity suit by virtue of Section 390, Or. L., was whether the defendants had wrongfully refused to perform the contract upon their part, thereby entitling the plaintiff to accept such refusal as a rescission of the agreement, making such rescission mutual. The court determined that there was no repudiation of the contract upon the part of defendants, and refused to grant the plaintiff the prayed for relief. The decree had the effect of determining the gist of the whole controversy and was “an order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein” within the meaning of Section 548, Or. L., and makes the decree an appealable order. In other words, the decree is, in effect, final and the provision for payment of the amount due upon the contract, is in the nature of a provision for a redemption of the property. We are firmly of the opinion that the decree of the lower court, was not only a final determination of the equity suit but that it also determined the law action, as well.

¶3Where an answer setting up facts entitling the defendants to equitable relief, is interposed in a law action by virtue of the provision of Section 390 the issues raised are determined, and the proceedings at law are perpetually enjoined, as in the case at bar, the whole controversy being ¡settled and determined by the decree, then there is no necessity or require*292ment that the law action should be allowed to proceed or that the cause should be tried twice; Crossen v. Campbell, 102 Or. 666 (202 Pac. 745); Mendelsohn v. Mendelsohn, 104 Or. 281, 285, 287 (207 Pac. 158); McCann v. Oregon Scenic Trips Co., 105 Or. 213, 220 (209 Pac. 483). This conclusion disposes of the motion to dismiss, and also the contention of plaintiff that the court erred in not allowing the action at law to proceed; that is, if the conclusion of the trial court was correct. This brings us to the main question in the case.

¶42. Plaintiff as the basis of her claim asserts that the defendants expressly repudiated and rescinded the contract without the consent or approval of the plaintiff, and without cause refused to perform their obligations thereunder. It therefore, became incumbent upon the plaintiff to prove that allegation. A careful reading of the testimony convinces us that in this she has failed; that the testimony preponderates the other way.

¶5It is written large in the record, that a short time after Mrs. Anderson made her last payment on the contract on September 1, 1915, she was unable or unwilling to make further payments and so informed the defendant E. C. Hurlbert. This was a disappointment to defendant Hurlbert and in his letter, in evidence, he clearly expressed a wish that the plaintiff would endeavor to make arrangements to keep up her payments on the contract. In his letter of September 10, 1915, in answer to plaintiff’s letter of the 3d of that month he states, “I am sorry that you find yourself so that you are unable to make these payments; I am sure I would rather you keep the payments up as I figured on using what I got from you to pay on some I am paying *293on.” It is plain from this-letter that Mr. Hurlbert understood the plaintiff to state in her letter that she was unable to make her payments. Mrs. Anderson does not appear to have attempted in any way to change this impression that was so plainly stated to her in defendant’s letter. Plaintiff did not ask for further time to make payment. A statement of defendant to the effect that he would let the matter run for a while and see if Mrs. Anderson could not make a raise and pay up, was voluntary and left the matter in such an unsettled condition that it gives credence to the testimony of defendant, E. C. Hurlbert to the effect that afterward he wrote to Mrs. Anderson accepting her proposition to abandon the contract and stating that he would sell the property and save for her what he could over the amount due to him.

¶63. Moreover, the trial court had an opportunity to observe the witnesses on the stand and to determine the question which the learned trial judge designated as difficult on account of the large part of the correspondence between the parties not having been preserved and the parties having to rely upon memory. Therefore, the findings of the trial court on this point are entitled to great weight.

¶74. More than three years before this cause was instituted the defendant, Hurlbert, expressed to plaintiff a wish that she complete her payments on the contract. This was after the plaintiff had indicated that she would not be able to make her next payment of October 1, 1915. Ever since that time the plaintiff has evinced a persistent desire that the defendant make some division of the property or some settlement of the matter so that she could obtain a benefit of the payments made on the con*294tract -without completing the payments. This involved the making of a new contract which the defendants were not obliged to enter into, and which the court is not warranted in making for the parties.

¶8Mrs. Anderson complained that in 1917 she was unable to communicate with defendant Hurlbert. There was nothing to prevent her from making the further payments at St. Johns, Oregon, where she made her other payments, and thereby stop interest if she had wished to do so. She stated that about a year after the first default she was able to make the payments in full. It appears from the record that in February, 1917, Mrs. Anderson was in Los Angeles, California where defendant Hurlbert was employed and called at his company’s office and was informed he was out of town. She stated after that she wrote to him. She testified thus—

“Q. What did you tell him?

“A. I asked again in the same manner as I did in that first letter he answered, for some settlement we could make.”

¶9On the other hand, the defendants appear to have been ready and anxious to receive the money due on the contract as long as there was any prospect of Mrs. Anderson fulfilling her agreement. There was no wrongful attempt on the part of defendants to terminate the contract of sale.

¶105. Notwithstanding plaintiff’s default for more than three years, the defendants offered her a deed to the property upon her making the contract payments. And the decree of the Circuit Court provided that she should have a specified time to do so. Under the law, and in equity, this is all that plaintiff can reasonably expect.

¶11*295The plaintiff is attempting to take advantage of her own failure to perform the conditions of her contract to purchase. Ever since her letter of September 3, 1915 she has failed to make or tender any payment on the contract and has repeatedly endeavored to make some arrangement or new contract so as to salvage something on account of the stock of millinery traded to defendants and the payments made in connection with the contract. The real amount involved is the reasonable value of the stock of goods traded plus the amount paid pursuant to the contract: Blahnik v. Small Farm Implement Co., 181 Cal. 379 (184 Pac. 661). We mention the latter matter as having some bearing on the equity of the case. There is little controversy in regard to the law. The general rule is that where the parties to a contract mutually agree to rescind the same, there being no express stipulation with reference to the payment or payments made thereunder, the law will imply a promise on the part of the vendor to refund such payment or payments to the purchaser, and the latter may maintain an action to recover back the same. Where a contract for the sale of land is rescinded by the vendor, the purchaser is ordinarily entitled to repayment of the purchase money paid and may maintain an action against the vendor to recover the same. So where the vendor does some act which amounts to a rescission of the contract the purchaser may recover back the payments made by him. However, the terms of the contract itself or the purchaser’s own conduct or default, may work a forfeiture of such payments thereby depriving the purchaser of his or her right to recover the purchase money paid: 39 Cyc. 2002, 2004; 24 E. C. L. 276, § 555; Maffet v. Oregon & C. R. R. *296Co., 46 Or. 443 (80 Pac. 489); Massey v. Becker, 90 Or. 461 (176 Pac. 425); Cornely v. Campbell, 95 Or. 345 (186 Pac. 563, 187 Pac. 1103). In Cornely v. Campbell, supra, a case upon which plaintiff relies, at page 353 of 95 Or. (186 Pac. 566), we find the language of Mr. Justice Burnett as follows:

“On the other hand, if the purchaser is in default and that default has not been waived by the vendor, and the vendor rightfully and in accordance with the law and the terms of the contract, declares a forfeiture of the same, where the contract makes time of the essence of the contract, and provides for a forfeiture of the payment, the purchaser cannot recover back the payment already made, in an action of this kind.”

¶126. When Mrs. Anderson, the purchaser informed Hurlbert, the vendor, that she would not be able to make any more payments the vendor was not required to give the purchaser further notice in order to effect a forfeiture. The plaintiff, Mrs. Anderson, by the abandonment of the contract waived her right to further notice. To require a notice after such abandonment would be an idle ceremony: Epplett v. Empire Investment Co., Inc., 99 Or. 533, 543 (194 Pac. 461, 700); Mitchell v. Hughes, 80 Or. 574 (157 Pac. 965). The writing of the letter by Mrs. Anderson informing Hurlbert, the vendor, that she would not make further payments constituted an abandonment of the contract by her as the vendee: 39 Cyc. 1353; Kemmerer v. Title & Trust Co., 90 Or. 137, 146 (175 Pac. 865).

¶137. There can be no rescission and recovery of the purchase price by Mrs. Anderson, the purchaser, where the Hurlberts, the vendors, are able and willing to perform the contract on their part within the time limited by the contract as the defendants *297are shown by the record to have been in the present case: 39 Cyc. 2006.

¶148. It is urged by the plaintiff that the Hurlberts could not enforce the forfeiture clause of contract without giving Mrs. Anderson, the purchaser, further notice of his intention, making a demand for payment and giving a reasonable time to comply, as he had by his letter of September 10, 1915, written to her that he would let the matter stand for a while, citing Maffet v. Oregon & C. R. R. Co., supra, and other decisions. That letter related to the October, 1915, payment. Several other defaults of plaintiff followed. This contention is answered by the findings which we have made to the effect that the defendants, Hurlberts, did write to Mrs. Anderson, the purchaser, in substance that if she could not make the payments he would sell the property and save for her what he could over and above the amount due him. It therefore, appears that she had ample notice, about three years, before this proceeding was instituted. In the case of Ward v. James, 84 Or. 375 (164 Pac. 370-372), in the opinion on petition for rehearing, page 383 of 84 Or. (164 Pac. 372), Mr. Justice McCamani used the following language:

“In order to put the vendor in default and claim a rescission of the contract the vendee must be ready to pay the entire purchase price, must offer so to do and demand a deed.” (Citing authorities.)

¶15In Newell v. E. B. & A. L. Stone Co., 181 Cal. 385 (184 Pac. 659, 9 A. L. R. 993), the syllabus reads:

“The vendee in default on a contract for purchase of real estate cannot place the vendor in default, so as to be entitled to recover payments made, by *298merely remaining quiet, without tender of amount dne, npon receiving notice that the balance dne mnst be paid at once, or the payments made will be forfeited.”

¶16The written contract in the present case plainly provides that if Mrs. Anderson should fail to make the payments or to keep her agreement, the contract should, at the option of the Hurlberts, become null and void and all rights and interests of Mrs. Anderson, under the contract, or in any payments made on the contract were to he retained by, and belong to the Hurlberts.

¶17It follows that the decree of the lower court should he affirmed. The time for the plaintiff to make payment of the amount dne on the contract should be for 60 days from the entry of the mandate in the Circuit Court. That court should have the right to extend such time npon good cause being shown as indicated in the decree of the trial court. It is so ordered.

¶18Motion to Dismiss Appeal Denied. Aeeirmed.