219 P. 1092 | Or. | 1923
Where 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
It 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
Mrs. 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.”
On 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.
“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.”
“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.)
In 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*298 merely 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.”
The 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.
It 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.
Motion to Dismiss Appeal Denied. Aeeirmed.
. Right of vendee to recover payments made on rescission of contract, see note in L. R. A. 1918B, 547.