*1 rehearing Argued April May 8; 24; remanded affirmed and May 29, denied ADAMS v. McMICKLE
(158 (2d) 648) P.
4(>0 Justice,
Before Chief Rossman, Kelly, Belt, Associate Justices. Hay, Brand Bailey, Lusk, *2 appellant. for of Farnham, Bend, Ross Bend, Boeke, of Thomas of H. H. DeArmond, (DeArmоnd on Bend, & of Goodrich, Redmond respondent. brief), for
KELLY, J. requiring defendant, a who was the decree
Suit delivery against plaintiff action in a claim and personal property accept of certain the value herein, consisting found the verdict of of jury and the action costs of the amоunt therein or con- awarded contract therefor full settlement sales ditional discharge A said action. motion parts plaintiff’s complaint having of amended to strike having and a demurrer thereto been over- denied been plead whereupon further, declined ruled, was in favor of rendered from which decree appeals. KELLY, J. controlling question allega- here is
The whether the plaintiff’s grounds amended of state tions equity require a court of should a successful forego in an claim action of personal right of his accept a in lieu thereof in such action involved money payment amount the аlternative in the either jury the verdict of allowed therefor or in and disbursements costs unpaid part pur- aggregate amount of accruing personal property chase provided contract сonditional sales interest as plain- therefor executed to the obtained tiff under which contract personal property. parts to strike The motion general complaint and the demurrer therеto were filed time. at the same The effect such a course is to question restrict the consideration of the court to the whether error was committed the trial court in overruling defendant’s demurrer. *3 plaintiff’s
Paragraph I of complaint amended alleges by parties execution the .hereto of the con- purchase by ditional sales contract for the by and the sale defendant for the consideration of in $1500 involved said action of claim namely: delivery, and three frame warehouse approximately of by one which was 16' 36', another by approximately 50' and 100', the third, 14' 20'.
Paragraph alleges buildings II that said werе upon ground located Oregon leased from the Trunk Railway Company.
Among things, alleged other paragraph it is in VI complaint of amended that on March 1942, defendant herein instituted an action of claim рossession to recover of of proceeding said that in said against was thereafter made and entered awarding herein in favor of defendant herein or in case said be had thereof could not then the sum of sixteen hundred dollars in cash. alleged paragraph
It also VI that the issues in said claim and action were confined buildings originally right of plaintiff, said sold under contract ownership by plain- buildings of said that thе arising contract was not sale, under said tiff, action at involved or determined said law. Paragraphs and IX III, V, VII, VIII of said IV, as follows: are
“III subsequent That thereafter and to the execution leased from the said Railway Company, premises Oregon Trunk buildings located, were later which said Railway ground from said Com- leased additional enlargements portions pany, upon with said build- made or connection extensions ings, plаintiff, since the execution said alleged, specifically hereinafter as is more are located.
IV to be sold so constructed plaintiff, mentioned, as hereinbefore light, construction, without basement frame were of loading thereafter, and that facilities, more useful make order improve- made business ments *4 buildings, follows, and additions 10(7, x50' of dimensions basement Concrete to-wit: x an SO', 125' addi- platform, loading dimensions adjacent ineorpo- to and building, constructed tional ;> 4,0 building, rated with the said ft. x 50 ft. in size put hereinbefore mentioned, and installed wiring equipment light electric to furnish and and installed an power purchased for the business; system, septic [sic] elevator, insallled water built improve- tank and well, and made various other ments, which said addition was located on lot or railway lots leased pany, from the com-
in addition to the ones covered said con- and for tract, which the defendant, at the time of making held a lease. Said improvements, additions and alterations were con- by plaintiff, greatly structed at a cost in excess оf by plaintiff paid contracted to be to de- fendant, to-wit: the sum of $7600.00,and that as improve- result of said alterations, additions and ments, the contracted to be sold de- greatly changed fendant to been have their nature and usefulness, and in combination improvements with the alterations and by plaintiff, they constructed of which form but a part, small turkey constitute warehouse and packing plant great usefulness and vаlue, in which the so contracted to be sold to portion defendant form a minor separated cannot be injuring and removed without destroying rendering useless, the remainder improvements premises, on said ir- rеparable damage plaintiff. V subsequent to the execution of said con- providing buildings by tract for the sale of said the-day and on or about February, 1940, the defendant told expect payments defendant wоuld no further giving plain- and was at that time without tiff, all consideration, right, of defendant’s title and interest and that the believed, at the time making gift they statements, that *5 good by made in were faith the and that defendant, relying acting plaintiff pay and the not thereon, did principal remaining unpaid the sum on said con- notwithstanding tract. That the the fact that de- actually give plaintiff, prop- did fendant to the said erty any described the and fur- waivеd payments ther desire to thereon, the does now accept gift, gratuitous willing the is and pay remaining all the now, contract, balance said principal
both and interest.
VII impossible impossible proven That it is and has by for into said to be carried effect building, giving possession for of said following buildings the to-wit: That said reasons, by joined covered contract are to and with the said improvements other alterations and constructed premises by as said hereinbefore by buildings and removal said related, build- result in the total destruction said would by ings as an incident covered said destroy useless,' and render thereto, would improvements buildings, constructed the alterations by plaintiff; premises for on said buildings are located said that reason Oregon Railway Trunk premises owned Company, mentioned, and under hereinbefore plaintiff, this and that lease premises, possession of said real tenant has a possession take impossible it is and of said without or to use said destroying use of interfering said real with defendant, That the real- premises said tenant. enforcing impossibility said izing har- has been for the threatening with demands assing tenant, buildings and said for said of rental mentioned, above from lease property. That the real great plaintiff, company railway value, relinquish said lease to de- plaintiff cannot great plaintiff. That said loss to fendant, without law, in said action and is not involved at lease was subject solely to sub-lease now owned tenant. VIII inequitable for That it would be only of thе said to take manner possible, destroying and remov- is, speedy ing and that has no same, *6 remedy adequate at law. IX plaintiff has been and is able, ready willing pay balance on said together pay with aсcrued or interest, judgment and accrued interest, the amount of court, $2,000 and herewith tenders into for the the sum of may payment either, the court decide.” clearly defined the This court has circumstances lоsing party delivery in a under which to have the is entitled therein action satisfied adjudicated upon payment property of the value of the involved. property
“If recovered has been lost or destroyed impossible any or if it is reason to property, a return of the obtain then the by money will be satisfied of the value * * property *." recovered, of the McIntosh Livestock Buffington, v. 358, 366, C o. Or. 217 P. 638. plaintiff’s pleading, рlaintiff understand As we is confining equity his claim to relief not to the fact impossible prop- to return that it is subject erty, delivery of the claim which was defendant herein who was action, nor does he restrict the terms which such merely payment by be awarded relief should plaintiff herein to defendant of the amount of the money judgment alternative recovered said claim and action. permit In effect claims that to hеrein to take awarded in the claim and action would result in the de- struction of other which has cost original purchase or more than five $7600.00, times the property constituting the res involved in delivery proceeding. the claim and Such a result cer- tainly would be unconscionable. suggested by by instituting
It is seeking this suit to have the court make a parties new contract between the hereto. We do purpose so understаnd the suit. As it, we view object prevention has for its this suit of useless damage injury and unwarranted to and property. expression by
The latest
this court
subject
may
that an
is to the effect
defense
be
up
delivery.
maintained in an action
of claim
set
*7
Milling Co. v. Lawrence
Bros.
Fischer
Co.,
Warehouse
(2d)
440, 4 P.
439,
1117. It
138 Or.
is settled
in
law
Oregon,
however, that
defendant in a
law
who
equitable
may try
relief,
is entitled to
out defenses at
urge grounds
unsuccessful,
if
and,
law,
relief
Taylor
proper
Winn,
v.
104
suit.
Or. 383, 386, 207 P.
Meade,
v.
Churchill
Or.
1096;
632,
The court order decree in is vacated and this favor cause is remanded proceedings may for such be inconsistent the costs abide the event. herewith, Lusk dissent. JJ., Bailey, Brand,