93 P. 246 | Or. | 1908
delivered the opinion of the court.
This is a suit by F. J. Eldriedge against John Hoefer and Casper Zorn, partners as Hoefer & Zorn, and David M. Keene, to have a deed, absolute in form, of certain real property, decreed to be a mortgage and Keene declared to be plaintiff’s trustee; that a redemption ■ of the land be allowed, within a reasonable time, on the payment of $14,600, the sum admitted in the complaint to be due from the plaintiff to Hoefer & Zorn, but if such payment cannot be made within the time limited, that the premises be 'sold, and if .the sum realized therefor does not equal $42,000, the price which it is alleged was offered for the land, that Hoefer & Zorn be required to account for that sum, less the debt so specified.
The admitted facts are that plaintiff’s father died seised of two farms situated in Marion County, containing 728.89 acres, whereupon his mother was appointed and duly qualified as administratrix of the decedent’s estate, to pay the debts of which it became necessary to sell
The complaint states the facts in detail, the substance of which is hereinbefore set forth, and avers, in effect, that at the time the money was so loaned it was agreed by all the parties hereto, that in all the transactions mentioned Keene was plaintiff’s trustee, which fact was assented to by Hoefer & Zorn, and that the original deed, executed by Keene to Hoefer & Zorn, was given to secure the payment of the promissory note, and the bond taken as a defeasance; that when the land was sold to Keene the plaintiff took immediate possession of the premises,
The answer denies the material allegations of the complaint, and that any payments were made on the promissory note prior to January 25,1896, except $509.50, which sum is the value of grain delivered the preceding year to the defendants; and states that Keene, being unable to pay the note or the interest thereon, and desiring to be relieved from such obligation, executed, with plaintiff’s knowledge and consent, a deed of the premises to Hoefer & Zorn in full payment and discharge of the note; that upon the receipt of such deed Keene delivered the possession of all the real property, particularly described in the complaint, to Hoefer & Zorn, who, on April 20, 1896, leased the land to one F. Goffin, and the latter thereafter, and until the commencement of this
“The first year’s interest I did not pay when it was due, * * but I got a concession from them for a few months, and I paid them interest on the bank of the Willamette river. I won’t say what month, but that was in 1894, but it was summer time and lumber was being unloaded there for them.
Q. Well, go ahead and state what you paid.
A. Well, then, the next year’s interest I borrowed^ from O. J. Goffin to pay them this $1,000, and I also borrowed some from him, I don’t know exactly how much now, to pay on this interest. I know that I borrowed largely from. Mr. Goffin to pay them $1,000, which was two years, which was more than a year, past due— this particular $1,000 I mentioned awhile ago having borrowed here. That made $1,000 paid on the principal and two years’ interest paid in money, and that is all the money that I did pay.
Q. Who was present when you paid that money?
A. Well, there was nobody present that I remember about when I paid the first year’s interest; but Mr. Goffin was with me—Dr. Goffin was with me, rather O. J. Goffin—-when I paid the last money to him.”
On cross-examination this witness was asked the following questions:
“Q. You say that this $1,000 that you claim to have paid that you borrowed that from Mr. Goffin?
*248 A. Yes. Well, now, Mr. Goffin got the money for me, and I remember there were two notes—one to a man named Duller, and one to another, Guston Bros.
Q. And you say he (0. J. Goffin) was present when you paid the money to Hoefer & Zorn?
A. Yes, sir.
Q. Where was it paid?
A. In Hoefer’s house—Hoefer & Zorn’s house at Champoeg.
Q. And how was it, in what medium?
A. Why, in money. I paid tnem in money all the time.
Q. Gold?
A. Well, I don’t know. ' I think—I won’t say as to whether it was gold. It could not very well have been silver. Perhaps it was gold. I won’t say as to that.
Q. And did Goffin go with you for that purpose?
A. I don’t know but that some of the money—I don’t know but that a part of that money was in a check from Hager of the Oregon City Flour Mill. *- *
Q. Now, you think a part of this money you paid to Hoefer & Zorn was a check from Mr. Hager?
A. Possibly it was. I think rather it was on account of naving gotten this Guston Bros.— Guston Brothers had to sell some wheat to loan this money, and they had "the wheat at Mr. Hager’s, and I know we were there. There was something about that that I won’t be clear and positive about. * *
Q. Now, the first payment, you said that money was paid on the river bank?
A. Yes, sir.
Q. How much was paid at that time?
A. I don’t know how much was paid. I know that I got $1,500 in Portland at that time, and it was my' intention to get off of the steamer in Champoeg and pay these people and get some conveyance and go home, and Mr. Hoefer was down there and I got on the boat and come up to the Eldriedge Landing and got off there.
Q. And you paid him at the boat landing?
A. I paid him. They were putting off some lumber, if I remember right, for Hoefer & Zorn.
Q. How was that paid?
A. Well, that was paid in money. But I won’t say as to the kind of money that it was paid in. I can tell*249 you who paid me the money, and where it was paid in Portland at that time.
Q. Well, I want to know about the medium in which you paid them.
A. Well, I won’t say.
Q. No checks, were there?
A. No; I don’t think there was. In fact, I am positive there was not.”
O. J. Goffin testified that he had loaned money to Eldriedge, and in 1895 went with him to the home of the defendants, where the plaintiff paid them some money, was asked:
“Now, have you any idea approximately how much money he paid at that time?”
The witness answered:
“No; I could not say. In fact, I don’t know just how much money it was. I don’t just remember how much money I borrowed for him. Then I would turn over some grain to him, and also borrowed about $40 from a man by the name of Dufer.”
In cross-examination the attention of this witness having been called to the payments made by the plaintiff to the defendants, was asked, “How much money was it?” and replied:
“I could not say. There was considerable money paid, but I don’t know just as to the amount of it.
Q. Well, considerable money might mean—
A. Well, there was some gold there, and some paper there that I know of, and the only thing I have in mind now was I was borrowing some money some time before that, and he told me that he wanted that money to make a showing with Hoefer & Zorn. That is the words that he used, because I remember it.
Q. Did you ever borrow money for him?
A. I had to borrow money for him ever since 1891. I borrowed money in 1891 for him, and 1892, ’93, ’94, and made deals like that for him right along just to-help him out.”
The defendant Hoefer testified that he never received from the plaintiff any money on the bank of the river,
The plaintiff further stated, on oath, that a part of the land in question was overflowed, and, desiring to drain the inundated portion, he procured a survey of the route for a ditch and ascertained that the cost of making the necessary improvement would be $3,000, or more; that Goffin, to whom the premises had been leased, offered to advance the money necessary to dig the conduit, if he could retain the rent until he was repaid the outlay, but would not undertake the enterprise unless the defendants consented, in writing, to such appropriation of the rents; and, referring to the attempt made in the fall of 1895, to obtain their assent, the witness testified as follows:
“I went to Hoefer & Zorn then with Goffin myself, and they refused; and I told them that the farm in that condition could not be made to pay the interest and taxes. Whereupon Mr. Hoefer & Zorn said that they would take the farm for interest and taxes, and I said, ‘Very well,’ and gave Mr. Goffin, as my tenant, there in their presence, instructions to turn over all the landlord’s interest in that particular part of the ground to them until further notice, and that is about the way it has stood to the present day.
Q. Where was this conversation?
A. At Hoefer & Zorn’s house at Champoeg.
Q. Did your tenant continue to pay them the rents and profits?
A. Yes, I believe they did. They never paid it to me. I didn’t ask them for any accounting, and I never agreed to make an accounting to them. That is, O. J. Goffin was to turn over the landlord’s interest to them, that is, much or little. They took it in lieu of interest and taxes.”
“Well, he knew that my note was going to fall due— I call that my note, this note they say was signed by Keene—in 1897, and that was in 1895, and he didn’t figure perhaps that the farm would make enough money to pay him in two years, and he thought I might be foreclosed.”
O. J. Goffin testified: That in the fall of 1895 he secured from the plaintiff a lease of the premises for the term of 10 years, stipulating in the demise to give as rent one third of the crops raised and to dig a ditch to drain the overflowed part of the real property, retaining the rent reserved until he was reimbursed for the outlay. That he assigned his interest in the lease to his father, and, desiring to obtain the defendants’ written consent thereto, he with the plaintiff called upon them for that purpose, but they refused to ratify the agreement, saying:
“I took Eldriedge with me there to explain the matter and try to influence Mr. Hoefer & Zorn to put their name on there. That my father was very much dissatisfied and would not go ahead with the ditch; and at the time the conversation come up that they could not farm the land to any advantage without the ditch. It is a fact today; and I had previous to that tried to dig the ditch with the help of Eldriedge, and had to give it up on account of not having enough money, and they were angry. Casper [Zorn] was doing the talking with Mr. Eldriedge. They were angry; and Eldriedge told him he could not possibly pay on that place and could not pay interest and taxes there unless there would be something done toward clearing up that bottom; and Casper spoke up and said he would pay the taxes and interest for the rent of that farm; * * and then Eldriedge turned around and told me, asked me if I heard that, and he said, ‘You pay the rent to them. I am satisfied.’
*252 Q. Then he told you that?
A. Yes, sir.
Q. Then you went away? .
A. Well, we stayed around there, and we talked about it a little more, and we still tried' to get them to sign a contract for this ditch.”
Goffin further testified that, at his suggestion, his father thereafter secured from the defendants a lease of the premises, but that he did not think the plaintiff ever knew anything about it.
The defendants, as witnesses in their own behalf, severally testified that they never entered into any agreement with the plaintiff whereby they stipulated to receive the rent in lieu of the interest and taxes, but that on April 20, 1896, and after they, secured Keene’s second deed, they, as the owners of the land, leased it to F. Goffin, who thereafter, as their tenant, delivered to them the rent agreed upon for the use of the premises.
The foregoing excerpts from the testimony show the conflict as to the payments of interest and principal, claimed to have been made by the plaintiff on account of Keene’s promissory note prior to January 25, 1896, when the second deed was executed to the defendants, and also indicates the controversy as to the alleged agreement of the latter to accept the rent in lieu of the interest and taxes. The theory of plaintiff’s counsel is that their client never consented to the execution of the second deed, and though he was informed thereof soon after the sealed instrument was made, he knew that the equitable estate in the premises, which Keene held in trust for him, and of which the defendants had knowledge, was not thereby transferred, and he supposed that F. Goffin, who had secured from his son an assignment of the lease, was, as' plaintiff’s tenant, delivering to the. defendants the share of the crops raised on the premises, pursuant to their stipulation to receive the rent in place of the interest and taxes, and hence no accounting was required. The defendants’ counsel maintain that their clients dealt with
It is impossible to reconcile the testimony, and any conclusion that may be reached on the facts is doubtful. A moment’s computation will disclose that the annual interest on the sum loaned, at the rate specified, is $1,092. It seems improbable that the plaintiff would have paid three installments of interest and the further sum of $1,000 on account of the principal, without taking any receipt therefor, or seeing that these sums were indorsed on Keene’s note. That the plaintiff did not obtain from the defendants written evidence of the alleged payments or observe that the sums of money claimed to have been paid were indorsed on the negotiable instrument, or give any reason for his failure in these respects, are circumstances tending to discredit his testimony. So, too, the plaintiff’s inability to fix the time when the alleged payments were made, or to state the amount of money which he claimed to have given the defendants, are also circumstances tending to weaken his declarations under oath. It must be admitted that' in paying out small sums of money a person might not remember the medium or denomination of the coin or currency used, or, if he were daily disbursing large sums of money, it is possible that he might forget the details of the transaction. The testimony does not show that the plaintiff’s business was of such magnitude that the giving of $1,092 would be classed as an insignificant sum, or that such payment was with him a matter of common occurrence, and for these reasons it would seem that he should have remembered the time, place, and circumstances of the respective alleged payments, including the medium in which they were made.
It will be remembered that the plaintiff testified that, in order to make a payment on the note, O. J. Goffin
It would further appear, from GofRn’s testimony, that though some negotiations, in relation to the alleged agreement to accept the rent in lieu of the interest and taxes, had been attempted, thereafter efforts were made to obtain the defendants’ written indorsement on the lease, to the effect that the tenant might be permitted to apply the rent on account of.the expense to be incurred in digging the ditch, and that he might retain possession of the land until the cost of making such improvement was repaid from the revenue to be derived from the source mentioned. The subsequent attempt to secure such consent induces the conclusion that there had been no meeting of the minds of the plaintiff and defendants on this branch of the case, and hence no contract, as alleged, was ever consummated between them in relation thereto. No accounting has been demanded by either party, nor is there any testimony in the transcript from which the value of the rents received by the defendants can be legally determined. We entertain no doubt that the original deed executed by Keene was intended by the parties as a mortgage; and we also think that the subsequent deed did not transfer to the defendants the plaintiff’s equitable estate in the land, and therefore a redemption from the lien or a foreclosure thereof should be decreed, in view of which the plaintiff should be charged with the sum loaned and the interest thereon at the rate of 7 per cent per annum from October 10, 1892, and the taxes annually assessed against the note, as provided for therein, if the amount of such burden can be segregated from the defendants’ assessment of money, notes, and accounts; that the plaintiff should be credited
The decree will, therefore, be set aside, and the cause remanded, with directions to take further testimony as to the amount due on the note; and after that sum is ascertained in the manner indicated, a decree will be rendered as originally given, with such modifications as the changed conditions may require. . Reversed.
Decided March 24, 1908.
On Petition to Modify Decree.
delivered the opinion of the court.
It is insisted by defendants’ counsel that as the undertaking on appeal, given by their clients, provides for the payment of the use and occupation of the premises pending the final hearing, not exceeding $1,500, as fixed by the trial court, the account should be adjusted as of July 16, 1906, when the original decree was given, and that interest from such time to the present should be computed at 7 per cent per annum on the money then found to be due the defendants, leaving the rent of the land for 1906 and 1907 to. be settled pursuant to the covenant contained in the undertaking. To adopt the mode suggested would compel the plaintiff to pay more than $1,000 as interest upon interest, in excess of the sum which will be due by computing the compensation for the use of the money from the time specified in the note to the final settlement.
In view of the difference mentioned, the cause will be remanded to the lower court, with directions to ascertain the value of the defendants’ use and occupation of the land during the years 1906 and 1907, and also to determine what sums, if any, they have paid out as taxes on
The decree, rendered herein by this court will be modified as mentioned. Reversed. Modified.
Decided August 11, 1908.
On Petition to Recall Mandate.
delivered the opinion of the court.
This is a suit to redeem real estate from a mortgagee in possession, decided by this court on January 7, 1908. (93 Pac. 246.) Upon motion of defendant the decree was modified on March 24, 1908. (94 Pac. 563.) A petition by plaintiff for rehearing was filed April 6, 1908, and denied April 28, 1908: The mandate was issued April 29, 1908, and this petition filed July 1, 1908, asking that the mandate be recalled and the cause remanded to the lower court to determine the amount of the rents for which defendants should account during the period of their possession.
The petition to recall the mandate is denied.
Reversed. Modified.
To Recall Mandate Denied.