126 P. 1000 | Or. | 1912
delivered the opinion of the court.
“What, if anything, did you do toward tendering this sum of money to Mr. Smith?
“A. It was offered, I think, by Mr. Edwards — John D. Edwards, of our firm — and offered in gold or notes, or by Mr. Spencer, I am not certain which of the gentlemen, or, perhaps, both; but Mr. Smith reported to me. He claimed he did not understand what they were at, and he would not have anything to do with it; his wife would not sign the deed; and consequently he would not take the money.”
Defendant objected to this as hearsay and not sufficient to prove a tender. The plaintiff rested its case on this evidence of tender, and the defendant declined to give any testimony; whereupon the court made findings of fact and conclusions of law and decree in favor of the plaintiff, as before stated. The defendant now urges that this testimony was not only hearsay, but that it failed to show that the plaintiff offered performance prior to the commencement of the suit. We think, however, the objection is not available for the benefit of
There are cases like Thompson v. Hawley, 16 Or. 251 (19 Pac. 84); West v. Washington Ry. Co., 49 Or. 436 (90 Pac. 666), and Lockhart v. Ferrey, 59 Or. 179 (115 Pac. 431), where the vendor may elect to take a partial title in pro tanto performance of an agreement to sell real property, and have-a reduction of the purchase price sufficient to cover outstanding liens, or reimburse him for what he necessarily paid to perfect the title. Such precedents do not apply, however, to a case like this, where plaintiff affirms complete title in itself, makes no waiver, and demands specific performance in full.
Dismissed Without Prejudice.