Christenson v. Nelson
63 P. 648
Or.
1901
Check Treatment
Mr. Chief Justice Bean,

аfter stating the facts, delivered the opinion of the court.

1. Upon the trial the plaintiffs offered to prove by Frank Dooley, an insurance agent, that on May 12, 1898, by thе consent of plaintiffs and Sundberg and Lind, he insured the property in controversy for the sum of $1,000, evidenced by a policy issued to- the latter, and that the defendants in this suit assumed the payment of the premium of $70. The court refused to admit such testimony, and, on motion of defendants’ counsel, permitted the answer to be amended by interlineation so that the admission therein should read as follows: “Defendants admit the partnership as alleged in plaintiffs’ complaint; also the conditional sale of the property set forth in the plaintiffs’ complaint, except the word ‘herein,’ in line 18 of page 2 of said complaint, which in said original contract is ‘hereinbefore,’ and not otherwise.” The refusal to admit such testimony and the allowance of the amendment constitute the first assignment of error. The amendment was evidently intendеd to correct an obvious mistake in the answer, and its allowance was manifestly within the power and discretion of the court: Koshland v. Fire Assoc., 31 Or. 362 (49 Pac. 865); Farmers’ Bank v. Saling, 33 Or. 394 (54 Pac. 190); Nunn v. Bird, 36 Or. 515 (59 Pac. 808). Under the contract as alleged in the complaint, the title to the property in controversy was to remain in the plaintiffs until all payments provided therein should be ‍‌‌​​​​‌​​​‌‌​‌‌​​‌​​​​‌‌‌​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍made, which the plaintiffs insisted included the insurance premium; and, under the admissions of the original answer, they contended they were entitled to the testimony *477of the witness Dooley. It was to¡ obviate the effect of this admission that the amendment was allowed, and there was no reversible error in rejecting the testimony, although the contract between the plaintiffs аnd Sundberg and Lind had not at that time been offered in evidence.

2. , It was subsequently admitted, and, after setting out the terms of the payments for the machinery purchased, as аlleged in the complaint, it stipulated that the title to the property “shall be and remain in the party of the first part till all of the payments hereinbefore mentioned have been fully made; and it is further agreed that the party of the first part shall have the said machinery insured in its own name, and the parties of the second pаrt shall pay for the same. Interest on all deferred payments in this contract to be paid by the parties of the second part at the rate of ten pеr cent, per annum.” It thus clearly appears that the payment for the insurance was not a condition precedent to the passing of the title, and hence that plaintiffs were not entitled to the evidence in reference thereto.

3. It is next insisted that the court erred in admitting in evidence the written transfer by Sundberg and Lind, made August i, 1898, of their interest in the property to the defendants. This objection seems ‍‌‌​​​​‌​​​‌‌​‌‌​​‌​​​​‌‌‌​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍to be based on the admittd rule that under a contract of conditional sale the vеndee cannot sell the property so as to páss a good title as against the vendor until the conditions ¿re fulfilled: Singer Mfg. Co. v. Graham, 8 Or. 17; Schneider v. Lee, 33 Or. 578 (17 Pac. 269). But the answer alleges, and there was evidence tending to show, that the transfer was made with the consent and approval of the plaintiffs. If so; it was valid and binding upon them, and hence the testimony was competent on that ground. And, moreover, under a contract of the character now under consideration the vendee is entitled to the possession of the property, and to become the absolute owner thereof, upon complying with the terms of *478the contract. These are rights of which he cannot be devested by any act of the vendor, and which he can transfer to another in the absence of a stipulation in the contract to the contrary. The title to the prоperty vests in the vendee upon the performance of the conditions of the sale, or in his vendee in the event that he has transferred his interest therein: Benjаmin, Sales (7 ed.), 300; Carpenter v. Scott, 13 R. I. 477; Day v. Bassett, 102 Mass. 445; Crompton v. Pratt, 105 Mass. 255; Currier v. Knapp, 117 Mass. 324; Chase v. Ingalls, 122 Mass. 381.

4. It is next asserted that the court erred in admitting evidence of a tender made by the defendants of the amount remaining due under the contract. The testimоny shows that on August 3, 1898, the defendants paid to the plaintiffs the installment due July 10, and received from them a receipt in writing therefor; that on September 16 they tendered the entire balance remaining due, and renewed the tender, as to the partial payments, October 10 and November 10, as they each became due; that the рlaintiffs refused to accept either of the tenders so made unless the defendants would pay the $70 premium for insurance and an open account of Sundbеrg and Lind for $12. The objections to the admission of this testimony are (1) that ‍‌‌​​​​‌​​​‌‌​‌‌​​‌​​​​‌‌‌​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍the answer to the supplemental complaint does not allege that the tender of $160 has bеen kept good by depositing the amount in court; (2) that the plaintiffs were not bound to accept the deferred payments from the defendants; and (3) that the tender did not include the interest on the deferred payments. So far as the first objection is concerned, it is sufficient to say that, as we understand the law, in a case of this сharacter it is not necessary to keep the tender good by taking the money into’ court and depositing it with the answer. If the .tender was properly made, it was thе equivalent of payment, and was as much a discharge of the defendants’ duty as an actual payment. In other words, it amounts to an *479offer of performance on the part of the defendants, and, if properly made, would be a defense to an action by the vendor to recover possession of the property on account of a breach of the contract: Miller, Cond. Sales,» § 36. The second objection is without merit, because, as we have already seen, the defendants had a right to complete the purchase as the vendees of Sundberg and Lind. And so, also, is the third.

5. The refusal to accept the tender was on the ground that defendants would not pa}*- for the insurance and open account, and not because it did not include interest.

6. It is next urged that the court erred in admitting testimоny tending to show a tender on the sixteenth of September, 1898, of the balance unpaid on the contract. The ground of this objection is that ‍‌‌​​​​‌​​​‌‌​‌‌​​‌​​​​‌‌‌​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍no money was then due; but in this class of cases the purchaser may perfect his title at any time before default by payment of the price, although it is payable by installments not yet due: Cushman v. Jewell, 7 Hun, 525.

7. It is next insisted that the court erred in submitting to the jury the construction of the contract between the plainiffs and Sundberg and Lind, so far as it refers to interest upon deferred payments. It is elementary law that it is for the court, and not the jury, to construe and declare the legal effect of written contracts or instruments: State v. Moy Looke, 7 Or. 54; Williamson v. North Pacific Lumber Co., 38 Or. - (63 Pac. 16). But it is also well settled that where a question of law has been improperly submitted to the jury for their decision, and has been correctly decided by them, the error is harmless, and their verdict will not be disturbed: Johnson v. Shively, 9 Or. 333. Now it appears that in this case the jury construed the contract in accordance with the practical construction put upon it ‍‌‌​​​​‌​​​‌‌​‌‌​​‌​​​​‌‌‌​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍by the parties themselves. The question was whether “interest on deferred payments” meant interest from the date of the con*480tract, or from the time of the maturity of such paymеnts, and the parties in their dealings adopted the latter construction. After the alleg'ed transfer of the property to the defendants-by Sundberg and Lind, they paid plаintiffs the installment due July io. At that time no interest was demanded or paid. So, too; objection to' the subsequent tender of the other installments was put upon other grounds thаn insufficiency of the amount. Whatever, therefore, may be the technical legal construction of the language of the contract, standing by itself, the parties have given to' it a practical construction, which the jury adopted; hence the error in submitting its construction to them was harmless.

Some objection is also made to the form of the verdict, but, as the record is silent, we must assume that the property was in possession of the defendants at the time of the trial, and, if so, the verdict is sufficient: Nunn v. Bird, 36 Or. 515 (59 Pac. 808). This disposes of the several assignments of error, and the judgment of the court below is affirmed. Affirmed.