Spencer v. Bales, 216 P. 746

216 P. 746 | Or. | 1923

BEAN, J.

The defendant demurred to plaintiff’s complaint and resisted the suit upon the grounds: First, that there was no contract of sale of the land, the agreement was merely an option to purchase; second, that this is not a case for specific performanee; third, that plaintiff has not complied with the terms of the agreement; fourth, that the contract, if any, was procured by fraudulent misrepresentation. Defendant’s assignments of error raise these four points. In support of defendant’s contention that the agreement is only an option, counsel for defendant cite and rely upon the cases of Sprague v. Schotte, 48 Or. 609 (87 Pac. 1046); Lemler v. Bord, 80 Or. 224, 227 (156 Pac. 427, 1034); Friendly v. Elwert, 57 Or. 599, 605 (105 Pac. 404, 112 Pac. 1085, Ann. Cas. 1913E, 357). Plaintiff contends that the written agreement evidences a complete contract for the sale by Spencer, and purchase by Bales of the land, especially when taken in connection with the letter of acceptance of Bales dated January 31, 1921, which is set forth in the complaint and quoted above.

The main' contention of defendant in regard to a want of mutuality in the agreement of August 3, 1920, is that Bales did not agree to pay the sum of $5,000 for the land. In considering this feature of the ease attention must be given to two writings, the agreement of August 3, 1920, and the letter of Bales dated January 31, 1921. They both relate to the same transaction.

It is a familiar rule of law that an agreement may be evidenced by several different writings, which when connected, show the parties, subject matter, terms, and consideration: 13 G. J., p. 304, § 126.

The memorandum of August 3, 1920, contains all the terms of the sale, the names of the vendor and vendee. They mutually covenant and agree that Spencer is to bargain, sell, and convey a good and sufficient title to the land described therein, together with a specified water right, for the consideration of $5,000, to be paid at the time of the delivery of the deed and merchantable abstract showing a good title to be conveyed. Thomas Bales subscribed to the further stipulation:

“To pay the same in cash within twelve days from date hereof, and thereafter within thirty days, upon the presentation of a good and sufficient warranty deed, executed by the party of the first part, conveying the above described premises, together with the water, conveyed by the proper method of conveyance, all free and clear of all encumbrances, together with the abstract of title showing that the party of the first part has right to so transfer said property, and the party of the second part shall have ten days from and after the presentation of the abstract to examine the same and to pass upon the sufficiency of it.”

The agreement “to pay the same in cash,” evidently refers to the price of $5,000. Any doubt about the matter seems to be removed by Bales’ letter wherein he states referring to the deal that, “I will close it up,” and again, “I will fix it the 14th.” By letter of January 31, 1921, Bales accepted the terms of the memorandum and thereby became bound by its terms, if he was not already so bound when he subscribed to the agreement. By this letter defendant put his own construction upon the agreement as a contract of sale and purchase. Twice he subscribed to the stipulation to pay $5,000 for the land. In construing the contract evidenced by the two writings, a material test is: Did the minds of the parties meet, and if so upon what proposition? We think, taking the agreement by its four corners in connection with the letter, it is clear that both parties assented to the contract and became bound by the plain terms and conditions thereof: Oregon Home Builders v. Crowley, 87 Or. 517, 533 (170 Pac. 718, 171 Pac. 214).

To make an enforceable agreement in writing no particular form of words is essential. The intention of the parties, as indicated by the language employed, is the thing to be sought. The use of inapt words or poor English will not affect the validity of the agreement although it may affect its construction: 13 O. J., p. 303, § 125. Spencer agreed to sell and convey the land to Bales for a specific price. Spencer did not agree to give Bales an option to purchase the real estate. Bales accepted the proposition and assented, and subscribed his name thereto.

Defendant cites Sprague v. Schotte, 48 Or. 609 (87 Pac. 1046) as showing that the agreement herein is an option and not a binding contract. In the Sprague case there was a mere offer to sell and no obligation to purchase. The contract in that case cannot be compared with the contract in the present case, for they are entirely different. Defendant cites Lemler v. Bord, 80 Or. 224 (156 Pac. 427, 1034), for comparison as authority that the contract under consideration is an option and not a contract. Like the former case, Lemler v. Bord is not applicable, for the contracts are entirely dissimilar. In construing the contract in the instant case we must take into consideration that there is a distinct promise to pay on the part of defendant.

As to the propriety of a court of equity enforcing a specific performance, the case is much like Larrabee v. Bjorkman, 79 Or. 467 (155 Pac. 976). In the latter case, at page 471, Mr. Justice Burnett quoted with approval from 36 Cyc. 552:

“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.”

By the compact Spencer became bound, and could be compelled to specifically perform the contract. Bales was just as firmly bound to perform the conditions of the agreement on his part. Even-handed justice and equity would require an enforcement of the contract by Bales.

The agreement appears to contemplate that if the vendee should notify the vendor within ten days after the delivery of an abstract of title, of any defect in the title to the land, Spencer, the vendor, should have a reasonable time to correct the defect. The two first deeds presented by Spencer to Bales were not satisfactory. Corrections were made within a reasonable time and a warranty deed conveying good title to the real estate was tendered to defendant, which he refused to accept without sufficient reason.

Defendant pleaded and claims that plaintiff made fraudulent representations to induce defendant to purchase the land; that he was led to believe that the land was free from weeds and not foul; and that the forty acres had been rented by plaintiff for a cash rental of $1,000 per' annum. The testimony does' not support this defense. Bales was a farmer living near the land and examined the land twice. If the land had been unreasonably weedy he was capable of noticing it and would probably have done so. The real trouble in this respect appears to be, that owing to the controversy the land was not cultivated during the season of 1921, and of course the weeds flourished. Bales could not reasonably have believed that the forty-acre tract had been rented for $1,000 per annum. Plaintiff owned other land adjoining, about 120 acres in all, and reference was made by him to the whole tract.

The real reason for the refusal of defendant to accept a deed of the land seems to be that he heard the wife of plaintiff was insane and not competent to execute the deed tendered. Mr. Bales’ fears in this respect were not well founded. It is clearly shown by the testimony that at the time of the execution of thé deed Mrs. Spencer was thoroughly competent to execute the deed in question and convey a good title.

The decree of the Circuit Court should be affirmed. It is so ordered. Affirmed.