222 P. 322 | Or. | 1924
A general outline of the circumstances relating to the controversy is substantially as follows: Prior to March, 1920, plaintiff, J. K. Bell and Charles Spain were the owners as equal partners of certain real property consisting of two tracts of land, one comprising 148.50 acres situate in Wallowa County, Oregon, and the other consisting of 27.32 acres situate in Baker County, Oregon. The legal title to the larger tract was in the name of plaintiff, Bell, and the smaller tract in the name of Charles Spain. This partnership also owned certain personal property consisting of approximately 170 head of cattle, farm machinery, tools and equipment and a sum of money deposited in the bank, amounting* to $1,325. They also held a certain alleged contract and agreement to purchase, when patent should issue therefor, a tract of land embracing 160 acres known as the “Art Thompson Homestead.” These lands are situate near together in the center of a section of country along Snake River, chiefly valuable for grazing purposes.
Prior to September, 1919, Charles Spain, being the owner of the 27 acre tract of land, was running about 38 head of cattle on the adjacent range. In September, 1919, plaintiff, J. K. Bell and Charles Spain, who is plaintiff’s son-in-law, formed a partnership and acquired title to the 148 acre tract, referred to in the record as the Bell ranch. This tract was purchased of one Gr. W. Densley for the sum of
In February, 1920, the defendants, W. H. Hutchinson and Fred Spain, were engaged in farming and stock-raising in Union County, Oregon. About this time Fred Spain was looking for a range for his cattle and went to the ranch of his brother, Charles Spain, and looked over the ranch with his brother and J. K. Bell. The grazing season in the locality of the Bell-Spain partnership land opened some six weeks prior to the grazing season in Union County, Oregon. An arrangement was made between these parties to permit Fred Spain to place a number of his cattle on this range. At this time negotiations were initiated for the sale of the real and personal property belonging to the Bell-Spain partnership; Fred Spain, not having capital sufficient to handle the proposition, interested defendant Hutchinson, and in March, 1920, Fred Spain and Hutchinson came to the Bell ranch and further discussion was
Fred Spain and Hutchinson returned to Union and afterward Fred Spain visited the ranch on Snake River and plaintiff, J. K. Bell, returned with him to Union where the deal was closed upon the following terms — Bell was paid $5,000 cash and the note in suit for $5,000 was executed by Fred Spain and W. H. Hutchinson for his interest in the partnership property. The mortgage of $12,000 on the land and the $7,500 chattel mortgage on the cattle were assumed by the defendants. A deed conveying the Bell ranch to W. H. Hutchinson was- executed by Bell and wife and placed in escrow in the bank at Union until the $5,000 should be paid.
Defendants, by their answer, alleged that plaintiff, J. K. Bell, and Charles S. Spain for the purpose of cheating and defrauding defendants represented that the Bell ranch enjoyed a water right from the waters of McG-raw Creek, which was amply sufficient to adequately irrigate not only the Bell ranch but also the Art Thompson Homestead tract; and that said stream supplied sufficient water to produced a maximum crop of hay on both of said ranches; that during the preceding year the Bell ranch produced 300 tons of alfalfa hay which was a normal production of said land; and that plaintiff and Charles Spain also represented that they-were the owners of a contract for the purchase of said Thompson Homestead tract, under the terms of which said homestead would be conveyed to them
Defendants allege and claim that the water in McGfraw Creek taken through the ditch, however, is sufficient to irrigate only about five acres and that the Bell ranch could not produce more than 50 tons of hay per annum; and that the Bell ranch was of no greater value than $2,000.
Defendants also assert that at the time the representations were made, as a part of the same transaction it was agreed between all of the parties, including the plaintiff Bell, that a partnership would be formed between the defendants Fred Spain and Hutchinson and the intervener, Charles Spain, for the operation of said properties; that the record title of the Bell ranch would be taken in the name of W. H Hutchinson; that the title of the Art Thompson Homestead would be taken in the name of Fred Spain, but that all of said property should belong to the new partnership and that it was understood between plaintiff and Charles Spain that this agreement would never be carried out.
It appears after the execution of the deed by J. K. Bell to W. H. Hutchinson at Union on March 25, 1920, the plaintiff J. K. Bell returned to California where he lived prior to entering the partnership with his son-in-law, Charles Spain, about five months prior to that date. He remained in California until about the time this suit was tried. Charles Spain .acted for a time with Fred Spain and W. H. Hutchinson in conducting the stock-raising business but no definite arrangements were made between them in regard to the partnership. A disagreement arose, Charles Spain claimed he should have wages for
During the season of 1920 it seems that a large part of the Bell-Spain cattle was sold by Fred Spain and Mr. Hutchinson to secure money to pay the $7,500 chattel mortgage. The cattle industry at that time was at a low ebb, the price of cattle and land was “down.”
Counsel for the defendants submit three questions. The first relates to whether the facts as stated in the answer of defendants constitute an equitable defense to the law action; second, if so, have the defendants sustained the burden of proof incumbent upon them, so as to entitle them to relief; third, if the defendants were not entitled to equitable relief, what disposition should the lower court have made of the case?
As to the first question, the defendants, by their answer sought to obtain an injunction against the plaintiff, Bell, inhibiting him from conveying or encumbering the Bell ranch. They also sought an injunction against Charles S. Spain and Mandane B. Spain, his wife, enjoining either of them from disposing or encumbering the Charles Spain ranch. A demurrer to the defendants’ answer was interposed by plaintiff and overruled by the trial court, holding that the allegations of the answer constituted an equitable defense to plaintiff’s complaint. The trial court considered the equitable defense but found against the defendants for the reason that the testimony did not sustain the affirmative allegations of
Many witnesses were examined. The testimony was more or less conflicting. The trial court saw the witnesses and heard them testify and was in a better position to determine as to the weight of the testimony than this court is from a reading of the type. Under the circumstances the findings of fact of the trial court are entitled to great weight.
The defendants have asked judgment for the $5,000 paid by them to plaintiffs, with interest thereon from March 25, 1920, and also for the sum of $840 paid by defendants on November 23, 1920, as interest on the $12,000 mortgage and also $390.62 with interest, and the further sum of $204.24 being the interest and costs paid on the $7,500 chattel mortgage. Defendants also demand judgment for damages in the sum of $3,333.33.
Defendants, since the deal was made, March 25, 1920, have remained in possession of the Bell ranch, and also exercised control over the Art Thompson Homestead. They have retained the possession of the band of cattle and sold a large part of the same. There was included in the sale, horses and machinery and other personal property besides the cattle estimated to be of the value of about $2,000. None
As to the representations made by the plaintiff, in regard to the property, the major part of the complaint of the defendants, is made in regard to the insufficiency of the water available through the ditch for the irrigation of the land and the amount of hay produced. It appears there is a ditch 2 feet wide on the top and 18 inches wide at the bottom constructed from McG-raw Creek for a distance of about three and a fourth miles through hilly, rocky land to the Bell ranch. The ditch was new, and the plaintiff testified that he so informed defendants; and that it would be necessary for the same to be cleaned out and put in proper condition. It appears that McGraw Creek, like most of the other small streams in Eastern Oregon, runs very low during the dry season, beginning about the middle of June, in ordinary seasons. After the deal was made in March, the defendants and Charles Spain, during the last of May or the first of June, proceeded to do some work upon the ditch in cleaning the same, and diverting the water from the creek and attempting to irrigate the alfalfa growing on the Bell ranch. The soil along the route of the ditch was porous and there was seepage to quite an extent, but the most of the water disappeared where the ditch crosses a “rocky slide.” There was no attempt to flume or perfect this 40 feet and the ditch was not thoroughly cleaned. The attempt to irrigate the land was abandoned about the first of June. In 1921 no effort was made to irrigate the land. It does not appear that a fair test of the water privilege was made by defendants.
Fred Spain, defendant, was asked, what was said at the time in regard to “the amount of hay that could be grown on the Bell ranch.” He answered: “They said they could cut something about 300 tons by handling the water properly- — putting the water on and handling it properly through the irrigation season”; that “there was any quantity of water”; that “they would cut three crops — supposed to cut three crops of alfalfa hay.”
This testimony seems to relate largely to the future and to imply that the ditch would have to be put in condition or “putting the water on” the land. From necessity the water must be used while it is available, during the early part of the season, or else store the same. 'There seems to be an attempt on the part of defendants to divorce the irrigation season from the season when there is water available for irrigation, and extend the irrigation season to the first of September, long after the water in the creek is very low.
Fred Spain further testified that in 1920 there “was lots of water earlier in the season when the snow went off.” Mr. Bichard Coopland, a witness for defendants, who had resided in the vicinity of the Bell ranch since 1883, and was familiar with the place until 1915, testified that before the ranch was irrigated it produced at the most, 75 tons of hay with an average of 35 or 40 tons annually; that the “run off” of the McGraw Creek watershed commenced about March and furnished a
We read in 20 Cye., at page 20—
“As a general rule false representations upon which fraud may be predicated must be of existing facts, or facts which previously existed, and cannot consist of mere premises or conjectures as to future acts or events, although such promises are subsequently broken, unless the promise includes a misrepresentation of existing facts, or the statement is as to some matter peculiarly within the*126 speaker’s knowledge, and lie makes the statement as a fact.”
See, also, Haney v. Parkison, 72 Or. 249 (143 Pac. 926, Ann. Cas. 1916D, 1035); Ward v. Jenson, 87 Or. 314 (170 Pac. 538).
The defendants complain that the time they examined the ranch, during February and March, 1920, there was snow on the ground and they were unable to make a complete examination. Testimony shows that the ground in that vicinity was partially covered with snow and indicates that the defendants could see the quantity of land that was cultivated to alfalfa; that there were about 50 acres of the Bell ranch planted to alfalfa, and there were 75 or 80 acres susceptible of cultivation.
W. H. Hutchinson had lived for a good many years in Union County and was experienced in irrigation. Fred Spain had also resided in Union County for several years and had been engaged in the stock business. Either of the defendants knew, or could have known, by the exercise of ordinary diligence, that there would not be a sufficient amount of water in the creek to irrigate the land from about the middle of June to the first of September at the time when they claim there was a lack of water.
Plaintiff had never raised a crop of hay upon the land. He had been a wholesale liquor dealer in California prior to the Volstead law, and it does not seem that the defendants relied upon information given by him in regard to the stock ranch in Eastern Oregon. One or both of the defendants visited the ranch three times before the deal was made and apparently they depended upon their own judgment. We find in the opinion in the case of Castleman v. Stryker,
“The law in no case presumes fraud. The presumption is always in favor of innocence, and not of guilt. In no doubtful matter does the court lean to the conclusion of fraud. Fraud is not to be assumed on doubtful evidence. The facts constituting the fraud must be clearly and conclusively established. Circumstances or mere suspicion will not warrant the conclusion of fraud. The proof must be such as to create belief, and not merely suspicion. If the case made out is consistent with fair dealing and honesty, the charge of fraud fails.” Kerr on Fraud and Mistake (5 ed.), p. 477.
It appears the defendants were anxious to obtain the ranch purchased in order to have the privilege of using the range adjacent which they examined as thoroughly as they could for ten or twelve miles.
“A purchaser must use reasonable care for his own protection, and should not rely blindly upon statements made by a seller; and between parties dealing at arm’s-length, where no fiduciary relation exists and no device or artifice is used to prevent an investigation, it is the general rule that a purchaser must make use of his means of knowledge, and, failing to*129 do so, lie cannot recover on the ground that he was misled by the seller. Reimers v. Brennan, 84 Or. 53 (164 Pac. 552), and authorities there cited; McCabe v. Kelleher, 90 Or. 45 (175 Pac. 608).”
The plaintiff, Bell, was not responsible for any transactions occurring between the defendants and Charles S. Spain after Bell had sold and conveyed his interest in the partnership property to the defendants. Defendants have wholly failed to show that, in so far as the plaintiff had anything to do with the subsequent arrangements made or agreed between the defendants and Charles S. Spain, plaintiff did not act in entire good faith.
“If, after determining the equities, as interposed by answer or reply, the case is allowed to proceed at law, the pleadings containing the equitable matter shall be considered withdrawn from the case, and the court shall allow such pleadings in the law action as are now provided for in actions of law.”
In the present case when the trial court had disposed of all the issues raised by the defendants’ answer, and the plaintiff’s reply, constituting the equitable defense of defendants, there was no further issue remaining to be tried, therefore, there was no necessity for allowing the action at law to proceed, and the court, having equitable jurisdiction of the
The defendants did not tender any legal defense to the note or any pleadings in the law action other than those containing the facts constituting the equitable defense. They admitted the execution of the note in suit and, in so far as the record discloses they had no other defense than that adjudicated by the trial court.
Defendants should not be allowed to proceed in the law action for the purpose of relitigating the same issues that have already been tried as an equity suit. In Crossen v. Campbell, supra, this court held as follows:
“It is a well-established rule that for the purpose of avoiding more than one suit and in order that a full, complete and effectual and final decree, adjusting the rights and equities of all parties in interest may be entered and enforced, a court of equity once having assumed jurisdiction of a cause upon equitable grounds, will reach out and draw into its consideration and determination, the entire subject matter, bringing before it all of the parties interested therein, and will retain such jurisdiction until all matters involved in the litigation between the parties, or growing out of and connected with the subject matter of the suit are finally disposed of, even though it is thereby required to pass on strictly legal questions, questions which otherwise would be triable in a court of law, or to grant legal remedies.”
When an equitable defense to a law action is interposed pursuant to the provision of Section 390, Or. L., after the trial of the issue, it is possible that a decree may be rendered in conformity to equitable principles and in accordance with the facts and issues in the case, and dependent thereon, to the purport (1) perpetually enjoining the action at law; (2) allowing the action at law to proceed; or (3) granting' such equitable relief to either party as may be proper, under the issues and in accordance with the facts of the case. Under the record of the present case it comes within the last class mentioned.
Equitable defense to a law action entitled to be set up in an answer under Section 390 must consist of facts constituting equities existing in favor of defendants material to their defense, and against plaintiff. Bell is not concerned in any controversy that may have arisen after the sale between Fred Spain and W. H. Hutchinson upon one side and Charles S-Spain on the other. A suit for the recovery upon plaintiff’s note should not be burdened, hindered or delayed with the issues which have arisen between the parties since the sale, with which plaintiff, Bell, was not connected.
Defendants may have made an improvident bargain. The prevailing condition of stock-raising in 1920 and 1921 no doubt rendered the business difficult. These things the court cannot aid nor prevent. Upon payment of the amount due on plaintiff’s note defendants will be entitled to the deed of the Bell ranch.
The decree of the trial court is affirmed.
Affirmed.
Rehearing denied February 19, 1924.
On Petition for Rehearing.
(223 Pac. 235.)
The respondent, J. K. Bell, has filed a bill of disbursements in which he included the following item: “Paid official reporter for copy of transcript of testimony in the above-entitled suit, such transcript was prepared for the appeal after decision in the trial court — $55.75.”
The respondents point out that the objections to the cost bills were not verified. This defect has been cured by a subsequent verification.
In order for the expense of the transcript of testimony, or a copy thereof to be taxed and allowed as costs upon an appeal, such transcript must necessarily form a part of the record on appeal. Only one transcript of the testimony is necessary for an appeal. However convenient it may have been for counsel for the several parties to have extra copies of the transcript of testimony, the expense of such copies cannot be taxed as costs: See Cunningham v. Friendly, 76 Or. 16 (147 Pac. 752); Couch v. Scandinavian American Bank, 103 Or. 66 (197 Pac. 284, 202 Pac. 558, 203 Pac. 890); Bell v. Hanover Fire Ins. Co., 107 Or. 524 (215 Pac. 171).
It having been shown that the appellants bore the expense of the transcript of testimony forming a part of the record in this case, the item of expense for copies thereof, $55.75 in each of the cost bills filed will be disallowed and eliminated from each of the cost bills. The interveners claim no other costs or disbursements. The costs of the respondent, J. K. Bell, will be retaxed in accordance herewith.
We have carefully examined the petition for rehearing of appellants filed herein and find no new question raised therein. For the reasons given in our former opinion the petition for rehearing is denied. Costs Retaxed. Rehearing Denied.