Larrabee v. Bjorkman

155 P. 974 | Or. | 1916

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. For the first time the defendants urge in this court that the complaint does not state facts sufficient to constitute a cause of suit, in that it does not appear therefrom that the plaintiffs were the owners of the property, a sale of which they seek to enforce. On this point we observe that the agreement itself, which the testimony conclusively shows was signed by both the plaintiffs and the defendants, recites at the very outset that: “A. A. Larrabee, first party, owns lot 7, block 66, Stephen’s Addition to Portland, Oregon.” It is further stated in the complaint that the plaintiffs duly performed all the conditions of the contract on their part, and tendered the defendants a warranty deed covering their land. If possible, in the absence of any motion to make more definite and certain, or a demurrer interposed in the Circuit Court, the pleading will be construed to stand as a sufficient statement of the cause of suit. This recital of the ownership of the property was signed by both parties. It was alike a statement of a fact by the defendants and by the plaintiffs. Moreover, unless the latter did, in fact, have title to the realty, they could not perform their covenant by tendering a warranty deed for the tract. The allegation that they duly performed all the conditions of the contract is a sufficient pleading on that point within the meaning of Section 88, L. O. L. It necessarily implies that at the time the plaintiffs were the owners of the land mentioned in the agreement else they could not have performed as they aver they did. As a matter of evidence, the declaration of ownership appearing in the contract signed by the defendants is an admission of the plaintiffs ’ title and dispenses with proof of the same.

3. It is contended also that the Larrabees have a plain, speedy and adequate remedy at law to recover damages for breach of the obligation. A quotation of textbook law is sufficient to set this point at rest against the contentions of the defendants:

“Where land or any estate or interest in land is the subject matter of the agreement, the jurisdiction to enforce specific performance is undisputed, and does not depend upon the inadequacy of the legal remedy in the particular case. It is as much a matter of course for courts of equity to decree a specific performance of a contract for the conveyance of real estate, which is in its nature unobjectionable as it is for courts of law to give damages for its breach. Equity adopts this principle, not because the land is fertile, or rich in minerals, but because it is land, a favorite and favored subject in England and every country of Anglo-Saxon origin. Land is assumed to have a peculiar value, so as to give an equity for specific performance, without reference to its quality or quantity”: 36 Cyc. 552.

4. It is also urged that there was no consideration for the stipulation, and hence that it is nudum pactum. It will be observed, however, that the compact contains an agreement on the part of Larrabee to sell to the defendant Bjorkman, who on his part stipulates to do certain things there mentioned. It is hornbook law that the promise-of one party is a sufficient consideration to support the agreement of the other party to a contract.

5. The defendants make much of the fact appearing in evidence that the Larrabees never saw the Bjork-mans until they confronted each other in court, and they argue from this that their minds never met so as to constitute aggregatio mentium indispensable to the validity of any contract. The testimony, however, is very clear that the execution of the instrument was accomplished through the services of Parkhill and Neilan, acting as brokers. It is common learning that the most important mercantile transactions are consummated between parties residing at great distances from each other by means of correspondence or by the intervention of brokers who, as the term implies, are agents for both parties. As stated, there is no amended answer in the record alleging fraud inducing defendants to sign the contract. The evidence on the part of the defendants themselves, however, shows that they discussed the legal effect of signing the instrument, and knew that it would be binding upon them. No false statement of fact is imputed to the plaintiffs or the brokers. It is quite apparent that the Bjork-mans hoped to make a profitable turn of the property before being compelled to perform their agreement, and that it was this expectation which induced action by the defendants at the outset.

6. Finally, they argue that because they have collected the note they were to assign as part of the purchase price, and, of course, have surrendered to the maker, the court is ousted of jurisdiction to compel specific performance, because it bas now become impossible to fulfill that condition. Equity, however, looking at the substance of things, will not be balked in that manner. It will follow the proceeds of the note, and, in the common-sense language of the trial judge, “will compel them to perform with what they received.”

The evidence, which we deem it unnecessary to quote at large, clearly shows that the plaintiffs did everything they were required to do and tendered performance of their part of the agreement, which the defendants refused without any sufficient excuse. Contracts are made to be observed, and nothing appears in this case on the evidence forbidding an application of the rule.

The decree of the Circuit Court is affirmed.

Affirmed.

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