Dwight v. Giebisch

150 P. 749 | Or. | 1915

Mr. Justice McBride

delivered the opinion of the court.

1. It is difficult to completely state the issues made on the pleadings on account of their great length, hut the foregoing is deemed to present a general outline sufficient for the purposes of this case. While the testimony is contradictory in some particulars, a careful perusal of it satisfies us that the findings of the Circuit Court are justified in every particular. The proposition contained in the letter from Kiger to Major Morrow describes property not taken possession of by the defendants, but this was either an oversight and mistake on the part of Kiger, or a part of a scheme entered into by him and plaintiff to deceive persons who might be disposed to bid on the strength of the inducements there offered. The proposal originated in an investigation on the part of the officers of the city of the capabilities of the premises afterward occupied by defendants as a possible or prospective rock quarry. There was no mistake or misapprehension on the part of Kiger as to the actual physical location of the quarry. The officers of the port knew, and Kiger knew, that the particular piece of ground afterward occupied by Giebisch & Joplin was the one desired for the purposes of a quarry, and the fact that it was misdescribed in his original offer to Major Morrow can make no difference. There can be no doubt from the testimony that he encouraged these defendants to enter the property and expend a large sum of money upon the faith of his agreement to let them have rock for one cent per ton, with a promise that they would pay him a larger price, fixed by defendants’ pleadings at four cents per ton, for rock taken for other possible contracts; and by the plainest principles of equity lie cannot now be heard to say that because the contract, through, no fault of Giebisch & Joplin, was not reduced to writing, it should be treated as void. The defendants Giebisch & Joplin having entered upon the premises on the faith of Niger’s parol agreement and by his consent, and expended a large amount of money in opening the quarry, and having fully performed their part of the agreement, are not to be dispossessed because their agreement did not come up to the measure required by the statute of frauds : Curtis v. La Grande Hydraulic Water Co., 20 Or. 34 (23 Pac. 808, 25 Pac. 378, 10 L. R. A. 484); Kelsey v. Bertram, 63 Or. 563 (127 Pac. 777), and cases there cited. So far, therefore, as the defendant Niger is concerned, the findings of the court and the decree are correct, except that it does not go far enough and enjoin Niger from in any way interfering with the possession of Giebisch & Joplin so long as they continue to carry out their contract and pay him one cent per ton for rock taken upon the instant contract. and' four cents for rock hereafter to be taken upon other contracts; and the decree should be corrected in that respect.

2. As to plaintiff we are disposed to adopt the theory of the learned judge below, who heard his testimony and was better able to judge of its credibility than are we. It is not going too far to say that much of it seems very improbable. He had been a business associate of Niger for several years, being a tenant in common with him in at least two other parcels of realty. He occupied the same office with him, and their desks were not over four feet apart. They had the same stenographer, and it is evident that their relations, business and otherwise, were intimate. At the time Niger made the offer to Major Morrow'plaintiff knew that he owned only a half interest in the land, and about the time that Niger made his offer to Major Morrow, and during the time the officers of the Port of Bay City were investigating the facilities for obtaining rock for the jetty, he wrote and obtained an option to purchase the other undivided interest in the tract. This option was allowed to lapse, but after Giebisch & Joplin had entered upon the land and begun work and had expended money in preliminary work, rights of way, etc., he completed the purchase, and on March 9,1914, put his deed upon record. He claims that he never consulted Niger about the purchase, or informed him that he had an option on the property; that he never heard of any investigation of its capabilities as a quarry, nor discussed that subject with Niger; that he never knew or heard of the proposal of Niger to Major Morrow, or of any arrangement between Niger and Giebisch & Joplin, In fact, he seemed to wish to impress the court with the idea that he supposed the tract was unoccupied, wild land, valuable only for timber until his purchase was completed. He goes so far as to state that he had never seen the land up to the time he bought it. Considering the intimate relations between himself and Niger, his story is intrinsically improbable. That he would purchase a piece of land which he had never seen and never inquire of his associate, who he knew owned the other half, as to its value, the character of the soil, the amount and quality of the timber, and its other characteristics is not readily to be believed. In fact, the whole story is unlikely, and we are inclined to believe, as did the Circuit Court, that from the beginning there was a conspiracy between him and Niger to beguile Griebiscb & Joplin into tbe belief tbat Niger owned tbe whole property, and tbat when they bad expended such a sum of money in opening up tbe quarry tbat it would cause them great financial loss to go elsewhere for stone, to extort from them a large price therefor; and tbe event shows tbat be carefully waited from March 9th, tbe date of bis deed, until May 28th, allowing Griebiscb & Joplin to go on with their improvements and expenditures in fancied security before be notified them of bis claims to tbe property, while in tbe meantime bis confederate, Niger, was putting off tbe execution of tbe agreement with Griebiscb & Joplin until they should get so deeply involved in tbe transaction tbat it would be ruinous to retreat. Neither of these men have any claims to relief in equity.

“Nothing,” observes Lord Camden, “can call forth this court into activity but conscience, good faith and reasonable diligence; where these are wanting, tbe court is passive, and does nothing”: Smith v. Clay, 5 Bro. Ch. Rep. 639.

All these are wanting in plaintiff’s case. His conduct has been unconscionable, destitute of good faith, and wanting in diligence, and be is thereby estopped, so far as this case is concerned, to assert tbat Niger was not tbe owner of tbe property; and bis remedy, if any, is against bis cotenant for bis moiety of tbe royalties obtained from tbe sale of stone. Let a decree be entered accordingly.

Modified. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Burnett concur.