68 P. 6 | Or. | 1902
after making the foregoing statement of the facts, delivered the opinion of the court.
The plaintiff contends as a matter of law: (1) That under the contract of May 10,1899, between the Bridal Veil Lumbering Co. and Garbade, the money in controversy, if the redemption from the Gilchrist sale is to be treated as valid, belonged to the lumbering company, and, as its interest therein has been transferred to the plaintiff, it should prevail in this suit; and (2) that Garbade’s refusal to accept the money, or to recognize the validity of the redemption, was a waiver of any claim to it on his part, which became irrevocable when plaintiff notified the sheriff that the attempted redemption was at end, and not to pay it over to him. We do not deem it necessary to con
This was the condition of affairs when the negotiations referred to were entered into between the Bridal Veil Lumbering Co., and plaintiff, resulting in a contract by which the lumbering company agreed to purchase of plaintiff for $25,000 the land owned by it, and which had been sold under the Gilchrist judgment and under the $15 decree, to be paid or secured substantially as follows: $1,000 down; the acceptance by Garbade of the money paid the sheriff to redeem the premises from the sale made on the Gilchrist judgment as a part of the amount due him; the payment by the lumbering company of the jugchnent in favor of Garbade and against the plaintiff amounting at that time to $10,143; and the execution and delivery of its promissory notes for the balance. After the terms of the sale had been agreed upon, and before the time for redemption under the $15 decree had expired, Mr. Fenton, attorney for the lumbering company, called upon Woodward in reference to the matter, and, as he testifies “communicated to him, as the attorney for Mr. Garbade, substantially the details of the proposition made by the Larch Mountain Investment Co., and the proposition and acceptance made by the Bridal Veil Lumbering Co. Judge Woodward said to me that he thought we were foolish in undertaking to negotiate with these people until after the expiration of the year; that the year would expire, as I remember, the 16th or 17th of June, or somewhere in that neighborhood. * # I said to him that my client, the Bridal Veil Lumbering Co., was not willing to stand upon that sale or l'ely upon that title; that
During the interview it was suggested that Mr. Fenton prepare such papers as he desired to have Garbade execute, and send them over to Woodward’s office. In pursuance of this arrangement the papers were prepared, and sent over on the morning of the 21st, by Mr. Bradley, the manager of the
When it was ascertained that the deal would be consummated, the defendant Palmer, without the knowledge of any of the other parties to the transaction, went to the sheriff’s office, leaving the final consummation of the matter to Woodward, and as soon as he (Palmer) was advised by telephone that the transaction had been closed, and the money paid to Garbade, for the first time demanded the money of the sheriff previously deposited with him by the plaintiff for the purpose of redeeming from the sale under the Gilchrist judgment. But one of the plaintiff’s attorneys, two or three hours prior to that time, becoming suspicious that some such plan was contemplated, had notified the sheriff not to pay the money over to Garbade or his attorneys. All the transactions in reference to the attempted redemption and all negotiations looking to the sale of the property were had with Woodward & Palmer alone. Garbade did not personally appear in the matter until just a few moments before the final papers were executed. Messrs. Woodward & Palmer, in their testimony, give a slightly different coloring to the facts from that detailed by other witnesses, but there is really no substantial conflict.
It is true, as the defendants insist, that Woodward & Palmer, acting for Garbade, refused to consent that he should transfer his certificates of redemption, or give an order on the sheriff for the money on deposit with him; but it is also true that, although advised by Mr. Fenton of the terms of the contract between the plaintiff and the lumbering company, they did not inform -him, or any other witness in the case, that Gax’bade intended to claim a right to the money in addition to the amount due him under the contract of May 10th. AAThen it
Reversed.