136 P. 653 | Or. | 1913
delivered the opinion of the court.
That the plaintiff sought to obtain $600 from the defendants, who secured that sum for him, there is no doubt. The only controversy is as to when that money was to have been paid. L. W. Zimmer, the husband of the defendant Mabel Zimmer, testified that the plaintiff, on Thursday, May 25, 1911, requested the witness to advance $600 on account of the option. “Q. "What did you say to him with reference to that? A. I told him that I was expecting some money from the east, and that as soon as that arrived I would be glad to make the payment. Q. Of $600? A. Of $600. That he said he would like to have it by the following Saturday. I told him that I didn’t know just how soon I would have it, but questioned whether it would be there by Saturday. He said then: ‘Well, if I could have half Saturday and the other half next week it would help me out. ’ I told him when it come I would just as well pay it all at one time, and he said, substantially, that would be all right, to get it as soon as possible; next week would do.” That on Thursday, June 1,1911, the witness, having secured the money, offered $600 to the plaintiff, who declined it, saying that he had borrowed that sum, whereupon the witness tendered him $50 on account of the option, which sum he also refused. In referring to the plaintiff and the $600 which he desired, Zimmer was asked on redirect examination: “What did he finally say with reference to getting that money next week?” The witness answered: “Well, he finally agreed that next week would do, and then he asked me about it Monday and again Tuesday; whether I had gotten the money.” This testimony is corroborated by that of G. E. Maxwell, the father in law of the defendant Schott, who was present and heard the conversation between Zimmer and the plaintiff in reference to the $600 which the latter desired to secure.
Based on the conflicting testimony the findings of fact made by the trial court are to the effect that Scott led the defendants to believe that if the $600 were paid within a week or 10 days from the time the application therefor was made, it would be satisfactory to the plaintiff, and that the defendants were able, willing and ready to pay in advance the installment and request of the plaintiff to advance the sum so desired, and were led to believe that it would not be necessary to tender the June installment on or before May 31, 1911.
No new consideration is necessary, however, when mutual acts are to be performed by the parties: Izard v. Kimmel, 26 Neb. 51 (41 N. W. 1068).
The decree should be affirmed; and it is so ordered.
Affirmed.