Hull v. Angus

¶1delivered the opinion of the court.

¶2There are three questions presented by this record: First. Is the note in question negotiable, so as to prevent plaintiffs from urging its cancellation as against the defendant Ferguson; or,' in other words, is his title, to the note such as to render him immune against the-*101attacks made upon that title by the complaint? Second. Do the stipulations for the surrender and cancellation of the note and mortgage in question, as set forth in those instruments and the accompanying contract, constitute an agreement for liquidated damages or for a penalty? Third. Is the allegation of the complaint about notice to the defendant Angus sufficient to charge him with knowledge of the purpose of plaintiffs to exercise their option to sell the land for $24,000? We will consider these questions in the order noted.

¶31, 2. According to Section 5834, L. O. L., an instrument to be negotiable must contain, among other things, an unconditional promise or order to pay a sum certain in money. The note in question bears upon its face a condition in these words:

“This note is given as a part of the purchase price of real property, and is secured by mortgage of even date herewith, and is subject to all the terms and conditions of said mortgage.”

¶4It would be doing violence to the language to say that the note is unconditional, when is expressly says upon its face that it is subject to conditions. The reference to the mortgage by the terms of the note’ is in effect making the note and mortgage one instrument, with the conditions rendering the note nonnegotiable. Bradstreet v. Rich, 74 Me. 303; In re Commissioners of Washington Park, 52 N. Y. 131; Casey v. Holmes, 10 Ala. 776. Taken in connection with the reference to its accompanying mortgage, making them in effect one instrument, as these authorities teach, the note amounts to a declaration by the makers that, although they have promised to pay, yét on the face of the note they reserve the option of either paying it, or within one year having it canceled. The operation of this provision is wholly within the control of the makers, and amounts to a condition destroying the negotiability of the note. *102The case in hand is by this circumstance distinguished from the case of the United States National Bank v. Floss, 38 Or. 68 (62 Pac. 751: 84 Am. St. Rep. 752), cited by appellant; for failure of consideration discussed there, as affecting the negotiability of the note, was not a matter within the control of the maker. In that case the note was fair and unconditional on its face. To be sure, interest was unpaid in part, but that was a mere incident of the principal debt, and was held not to amount to notice of dishonor. Although the consideration was an executory contract, yet there was no allegation that the holder knew of any breach of it at the time he purchased the note; hence the plaintiff in that case was a holder of the paper in due course. Here, it is charged that, besides knowing all the conditions contained in the note and mortgage, the defendant Ferguson did not pay any valuable consideration for the note, and that is was assigned to him without consideration, and for the fraudulent purpose of preventing plaintiffs from exercising their right to have those instruments canceled.

¶53. In order to be a holder in due course of the note in question, the defendant Ferguson must come within the provisions of Section 5885, L. O. L., as follows:

“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

¶6The language of the note itself, referring and making it subordinate to the conditions of the mortgage, shows upon its face that it is not a regular negotiable instru*103ment. In addition to that, according to the allegations of the complaint, Ferguson did not take the note in good faith or for value. He is therefore not a'holder of the note in due course, and according to Section 5891, L. 0. L., a note in the hands of any holder, other than the holder in due course, is subject to the same defenses as if it were non-negotiable. It is not necessary to further elaborate this branch of the case, for in their brief, defendants substantially admit that if plaintiffs have any right to demand cancellation of the instruments in question the right is equally available against both defendants. We conclude that, as against the defendant Ferguson, the note is subject and amenable to the attack made upon it by the complaint, and that as to him the demurrer was not well taken in that respect.

¶74. The question of whether the parties provided for liquidated damages or for a penalty is next to be considered. For any inexcusable violation of a valid contract, the defaulting party must respond in damages to the extent of fairly compensating the other party for the injury he has suffered. This principle governs every contract, whether there be any express stipulation to that effect or not. By agreement of the parties, in proper cases, this principle may be enforced by a penalty or a stipulation for liquidated damages; but even these are not exclusive. The parties may provide for themselves some other lawful rule of action. In the case in hand, the parties have chosen not to provide for the payment of money as the compensation for a possible breach by the defendant Angus of his contract to re-purchase the land at $24,000, or cause the same to be done. They have not fixed any sum of money as stipulated damages for such a breach of contract; neither have they left the damages to be assessed by a jury within the limits of a prescribed penal sum. They have provided that, in lieu of any money compensation for his refusal to perform *104the single stipulation to re-purchase • the land, he shall do the single act of canceling the note for $7,500 and its securing mortgage. Really, in substance and reason, the defendant Angus by his contract engaged to do one of two things in the alternative, at his option, in the performance of the contract on his part, viz., either to buy the land at $24,000, or to cancel the note and mortgage for $7,500. In Dermott v. Jones, 2 Wall. 1 (17 L. Ed. 762), the Supreme Court of the United States uses this language: “It is a well-settled rule of law that, if a party by his contract charges himself with an obligation possible to be performed he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.” The contract of Angus, as disclosed by the complaint, is one he had a right to make. He could, if he chose, lawfully agree to buy the land at $24,000, or any other greater or less amount. He could also lawfully agree to the alternative of cancellation and surrender of the note and mortgage. Neither of these stipulations is against public policy nor a violation of any public law. Except for fraud, accident, surprise, mistake, undue influence or some other such reason of equitable cognizance, courts of equity, the same as courts of law, will hold competent contracting parties to their engagements. We cannot refuse to enforce the contracts of the parties as they make them, albeit they are improvident, neither can we make a new contract for them, and substitute it for the old one.

¶8The defendant Angus has not bound himself by the flexible cord of a penalty, entailing upon him only such actual damages as might be assessed by the verdict of a jury. He has agreed to the strict and immovable standard of liquidated damages according to the language of his contract. He has chosen to agree in the alternative either to buy the land or to cancel the note. Can he be *105relieved under apy phase of equitable jurisdiction? The question of a fixed sum as liquidated damages came before this court most prominently in the early case of Wilhelm v. Eaves, 21 Or. 194 (27 Pac. 1053: 14 L. R. A. 297). The contract in question there contains some 16 different stipulations of varying degrees of importance, the damages for a breach of some of which would be easily ascertainable, while there were others not so clear as to the amount of damages applicable; but there was only one sum of money provided as an omnibus standard, by which to measure the damages of any one of those different stipulations, and the court held that, owing to the unconscionable effect, the parties could not be supposed to have intended that construction of their agreement, and so denied recovery of that specific sum of money as a compensation for the breach of the contract.

¶95-7. The -next case where the question of liquidated damages came into prominent notice was that of Salem v. Anson, 40 Or. 339 (67 Pac. 190: 56 L. R. A. 169: 91 Am. St. Rep. 485). The defendant Anson had entered into a bond with the city of Salem to establish in that city an electric light plant in 30 days, or pay the city $5,000. He failed to establish the plant at all, and the city sued on his bond to recover the full sum mentioned. The court, by Justice Bean, in discussing the question now under consideration, laid down two rules which, though not necessarily controlling in all cases, are regarded as affording a general guide by which controversies relating thereto may be determined:

(1) “Where the contract is conditioned for the performance of some collateral agreement, the sum mentioned therein will be presumed to be a penalty, and it is incumbent upon the party desiring to recover the sum named as liquidated damages to show that it was so intended by the contracting parties.”

¶10*106The case in hand evidently does not come within this rule, because there is no collateral agreement. The engagements of the parties are in the alternative, and each is a part of the same agreement. Strictly speaking, one cannot be considered as a security for the performance of the other. The two are of equal dignity and force, and merely present two alternatives, the performance of either of which would be considered the performance of the entire contract on the part of the defendant. The second rule is thus stated in Salem v. Anson, 40 Or. 339 (67 Pac. 190: 56 L. R. A. 169: 91 Am. St. Rep. 485):

(2) “When the actual damages in case of a breach of the contract must necessarily be speculative, uncertain, and incapable of definite ascertainment, the stipulated sum will be regarded as liquidated damages, and may be recovered as such without proof of actual damages, unless the language of the contract shows, or the circumstances under which it was made, indicate a contrary intention of the parties, or it so manifestly exceeds the actual injury suffered as to be unconscionable.”

¶11In the case of Sun Printing & Publishing Association v. Moore, 183 U. S. 642 (22 Sup. Ct. 240: 46 L. Ed. 366), Justice White, speaking for that court says:

“The decisions of this court on the doctrine of liquidated damages and penalties lend no support to the contention that parties may not bona fide, in a case where the damages are of an uncertain nature, estimate and agree upon the measure of damages, which may be sustained from the breach of an agreement. On the contrary, this court has consistently maintained the principle that the intention of the parties is to be arrived at by a proper construction of the agreement made between them, and that whether a particular stipulation to pay a sum of money is to be treated as a penalty, or as an agreed ascertainment of damages, is to be determined by the contract, fairly construed; it being the duty of the court always, where the damages are uncertain and have been liquidated by an agreement, to enforce the contract.”

¶12*107The principle seems to be, from a consideration of all the. authorities, that where the parties are competent to contract, are equally masters of the situation, and deal at arm’s length, the court of equity will not disturb the measure of damages established by the parties themselves, unless it is so grossly unconscionable and oppressive as to shock the conscience of the court and lead it to believe that, although so nominated in the bond, in the letter, it is not included within the spirit of the contract, or within the contemplation of the parties. With this principle in mind, and as if this were purely a question of liquidated damages or penalty, let us examine the transaction more particularly, and determine whether the alternative is so unconscionable as to render it inequitable to enforce the agreement as made by the parties.

¶138, 9. In the beginning, the plaintiffs paid cash in the sum of $7,000, gave their first mortgage, now undisputed, for $1,800 and the second note and mortgage, the instruments in question, for $7,500, making a total of $16,800. If the defendant Angus had performed his contract in re-purchasing the property, by the terms of their agreement, the plaintiff would have received cash, $16,500, and the return of their note and mortgage for $7,500, making a total of $24,000. This arrangement would have canceled their note and mortgage for $7,500, reimbursed them for the $7,000 cash, and extinguished their first mortgage of $1,800, which would have left them a net balance of $7,700 in cash, over and above all their expenditures for the purchase price of the property. True it is that they placed $1,500 in the hands of the defendant to be expended at his discretion in improving the property, but this was not part of the purchase price, and was as much for his benefit as for the benefit of the plaintiff, because it improved the property.in question. There is enough of the element of uncertainty on both sides of the *108contract to make the damages incapable of accurate ascertainment at the outset. On behalf of the plaintiff, they could not estimate how much, if any, the expenditure of $1,500 at the discretion of the defendant would enhance the value of the property. In the absence of observation on the part of the defendant, he could not foretell in advance whether the plaintiff could so manage the property as to pay the indebtedness attaching as a lien thereon. The whole transaction was more or less speculative, and the parties could not with any degree of accuracy foretell the measure of damages accruing to either by reason of a breach of their agreement. Hence it was competent for them, to provide a rule of action in that respect by which their rights should be determined; and it is clearly within the proprieties of equity for them to agree in the alternative that the defendant should, as a solution of the dilemma, re-purchase the property at $24,-000, or cancel the $7,500 note and mortgage. The option in favor of the plaintiff, to call for the re-purchase of the property or the cancellation, of the note, was open from the beginning of the transaction until one year thereafter. As we have shown, if the option had been declared on the following day after the beginning of the transaction, the plaintiff would have received a net balance of $7,700 in cash. As time ran on and interest accrued, this might be perceptibly diminished, but this would not be sufficient to render the cancellation of the note and mortgage unconscionable as a measure of damages for the failure of the defendant to comply with either of the alternatives of his contract. The following precedents are illustrative of the questions involved: Dwinel v. Brown, 54 Me. 468; Calbeck v. Ford, 140 Mich. 48 (103 N. W. 516); Moore v. Durnam, 63 N. J. Eq. 96 (51 Atl. 449); Witherspoon v. Duncan (Tex. Civ. App.) 131 S. W. 660; Ahlers v. Harrison, 131 Iowa 289 (108 N. W. 331); United States v. *109Bethlehem Steel Co., 205 U. S. 105, 118 (27 Sup. Ct. 450: 51 L. Ed. 731). The equity side of the court is the forum in which to determine the questions involved in this controversy, for the mortgage remaining unsatisfied of record, when of right it ought to be canceled, constitutes a cloud upon plaintiffs’ title to the land; the reason being that, as against any one seeking to enforce it, the plaintiffs would be put to their allegation and proof of its invalidity to withstand the claim.

¶14Cancellation of instruments void in fact, but apparently valid, is a peculiar province of equity jurisdiction: Breathwit v. Rogers, 32 Ark. 758; Hardy v. Brier, 91 Ind. 91; Gray v. Coan, 23 Iowa 344; Remington Paper Co. v. O’Dougherty, 81 N. Y. 474; Hoopes v. Devaughn, 43 W. Va. 447 (27 S. E. 251). If equity will enforce cancellation of an instrument constituting a cloud upon the title to real property, in the absence of an agreement for that purpose between the parties, within the scope of the cases last cited, all the more will it decree specific performance of the express engagements of parties to accomplish the same result. We conclude on the merits of the transaction that the bill presents no equities in favor of the defendant Angus sufficient to excuse him from doing as he agreed in the alternative. His codefendant, as we have already shown, stands in no better condition in that respect, for the note he claims is nonnegotiable, and by the allegations of the complaint he is not a holder in due course.

¶1510. On the third question, about notice to the defendant Angus, we think the allegations of the bill are insufficient to put him in default. The plaintiffs might have caused notice in writing to be prepared, issued, and signed by themselves, all as alleged, and still the defendant might not know anything about the notice. We speak of issuing a summons, but it often appears that a defendant is *110not served, and knows nothing of any summons being issued. Full many a writ is issued, but never served, or otherwise brought to the notice of the defendant. The complaint does not say that the notice was issued to Angus, but only that it was issued. This is not sufficient to bring the election of the plaintiff to the knowledge of Angus, so as to charge him, or put him in default of execution of his contract. For this reason the court erred in overruling the demurrer to the complaint, and the decree must be reversed, with directions to the court below to proceed in a manner not inconsistent with this opinion. Reversed.