*1 September 5, Argued affirmed November Appellants, v. ZERKEL et ux, Respondents. LINDSEY ux, et P2d 1041 *3 Paul filed Jolma, Clatskanie, the cause and argued briefs for appellants. Zafiratos,
Nicholas D. the cause Astoria, argued and a for filed brief respondents. and Justice, Chief
Before McAllister, O’Connell, Bryson and Jus- Howell, Sloper, Holman, Tongue, tices. (Pro Tempore)
SLOPER, J. appeal an Frank C. Zerkel and Mil- E. Zerkel, wife, dred husband sellers property, certain contract, real under a land sale from a decree of the circuit court entered favor Lindsey Carolyn Lindsey, defendants, Jack hus- buyers, plaintiffs’ complaint dismissing band and wife, supplemental complaint. complaint Plaintiffs’ payment seeks strict foreclosure for default in January delinquent prior 1973 installment which was plaintiffs’ election to declare balance due February supplemental complaint 9, 1973. Plaintiffs’ ground included as a further an al- foreclosure leged breach that defendants had encumbered to third party a mobile home covered the lien of the con- tract. The answer of defendants admitted the execu- affirmatively tion of alleged, the contract and first, plain- that the contract in default at the time tiffs declared the contract to inbe second, default; had full received of current indebtedness under the terms of the contract subse- quent to the commencement of the action and had right waived their accept- to foreclose said contract ing payments; said and, third, that defendants were ready, willing perform and able to all terms and condi- tions of the contract and estopped are deny that defendants are not in default. *4 August The trial court on 3, in a 1973, memoran- opinion dum held overpaid that defendants had suf- they were ficiently therefore, that, and the contract on payments; were defendants and that on not in default provisions 10-day under the notice entitled to a concerning mobile encumbrance contract home. plaintiffs August a filed 1973, on
Thereafter, directing to wit: Exhibit exhibits, motion that certain and each from defendants in the sum 1: checks $200 May April and 25,1973, dated 30,1973, 30,1973, March cashier’s check June and Exhibit 23: 26, 1973, $400 payable plaintiffs. plaintiffs, An be turned over September con- 4, 1973, amended motion was on filed cerning attempting uni- the same exhibits and to state laterally not be that the return of said exhibits would any rights receiving a waiver and cashing the checks. September findings
On entered the court 20, 1973, of fact and law, 10,1973, conclusions of and on October plaintiffs, the court allowed the motion of amended August returning filed Exhibits 1 and 13,1973, specifically ruling receipt made no as to whether the cashing of the exhibits would constitute a waiver any way plain- or whether that action would in affect rights appeal. tiffs’ On October the court 26, 1973, dismissing plaintiffs’ complaint entered a decree supplemental complaint prejudice with fore- and denied closure. assignment
Plaintiffs’ first of error contends judge ruling that the trial erred that defendants were payments default in on the contract at the time declared the entire balance due on Feb ruary February 9 and commenced suit on 12. facts payments indicate that the total made *5 522 monthly
prior January of the total 1973exceeded payments required terms under the to have been made argument counsel of At the time of oral the contract. overpay- amount of such advised this court that the February ment as of was in the sum of 9,1973, $237.75. payments judge trial excess The concluded these January payment applied could be 1973 toward in and, at that time de- defendants were not therefore, monthly payments. fault on the We hold that judge ruling trial in in was error this and to affirm legal rewriting action his would in effect be the con- parties ignoring express pro- tract between the required vision in the contract which a minimum monthly payment:
“* * * purchase price paid The will be at the per plus rate of or in- month, more accrued $50.00 monthly payment with terest, on the first made to be payment 1, October 1970 and like on the first (1st) day pur- each of month until thereafter price paid chase interest have been full. # [*] * J? type provision in a land sale contract has previously subject judicial interpretation been appellate jur this court. However, courts other interpreted provisions
isdictions have
such
and have
uniformly
buyer
option
held that where the
has the
mailing larger payments
than the minimum under
may
payments
applied
the contract, such excess
not be
monthly payments.
buyer
toward future minimum
The
required monthly
must
payments
make the minimum
or be in default.
v. Stewart,
McBride
Utah
P
(1926):
114,
the affirmatively appears in the contract allegations complaint. from the the re- payments made before amount of The total greater equal than entry by to or defendants was provided per the minimum month, the sum of $30 however, contract, contract. The per plaintiff pay month. or more should $30 August re- did not $675 duty plaintiff contract, her under lieve the every pay month thereafter.” each $30 at 15. Utah *6 App2d 608, Walsh, 102 Cal
In the case of Harman v.
(1951),
sale con-
a land
involved
“The contentions are error. As record no the discloses reversible pointed agreement respondents’ in brief, out exactly unambiguous; of sale is clear and it means says. By express what it terms the contract obli- gates buyers per pay to more Dollars or ‘$100.00 day September, month on the 1st of day succeeding first of each thereafter.’ No- month any suggestion where in the instrument is there appellants pay in the event more than should $100 monthly payments in be month, one later should Appellants’ only privilege reduced the excess. pay stipulated was to ‘more’ than the sum on the any privilege pay first of ‘less’ than no month; any granted. one is $100 month To read such provision explicit a amount into an written contract would imposing upon the sellers additional terms not in the instrument and mentioned written provision negative in effect would that ‘time ” App2d is of the essence of this contract.’ 102 Cal at 610-611. supra (102 App2d 608),
Harman Walsh, v. Cal 524 App2d approval 122 Renz, Cal
cited with Smith v. say: (1954), court on to P2d and the went 535, contrary, agreement “In to the absence undoubtedly pro- installment cases it the rule in viding specific or more of a amount payment made intervals, at fixed that an excess prior to or on effective one installment date is not necessity to reduce the amount of or obviate the paying subsequent fall installments as due according agreed to the schedule.
[*] [*] [*] # binding precedent “We are aware of no law or contrary, to the with what we the consistent therefore hold that parties to be the intent of the deem pay- $23,500 be an must considered as advance ment installment of or but more, first $500 any remaining it does wise affect the provided schedule of note, installments other principal than to lessen the sum that amount consequently and remaining reduce the number of installments paid.” App2d be at 539-540. Cal And in Balcomb, DeVilliers v. 79 NM 446 P2d (1968), payment, a similar case of excess the court held:
“* * * overpayment period by An in one one *7 purchased who has real a estate under contract obligating pay specified him to sum or more each period duty paying does not reheve him of the of specified every payment amount on each and * * date thereafter. NM at 573. assignment Plaintiffs’ second of error contends granting that the trial court erred in not a decree of ruling, strict The foreclosure. court made such of for course, the reason that he did find that defend ants were default under the terms of the contract. just Having determined that the court inwas error ruling, in so because defendants were, fact, de- plaintiffs February time which at 1973, 9, on fault unpaid and due balance the entire elected to declare such of payable, gave written notice and both oral and if proceed there determine to we must intention, right fore- any by plaintiffs to strict of their waiver grace contract, the terms closure. Under January days period of 30 complaint January payment expired The 1973. 31, on February 12, filed on in this case was for foreclosure found court and the trial The evidence indicates 1973. February 9 and before after the notice February complaint ten- defendants 12, was filed on January payment, past-due as dered to February payment. con- also well Defendants as subsequent attorney plaintiffs’ tinued to tender monthly payments monthly payments. four four These sum are in to a check in the addition cashier’s $400 February or about 13,1973, tendered defendants on January February payments. for the Defendants’ February by plaintiffs’ counsel was advised counsel on again 27, 30, defendants’ Exhibit on March de- 5, they fendants’ Exhibit would receive such 6, any proceed prejudice checks without with the fore- unpaid closure suit and would credit such checks on the balance. Counsel for retained checks these produced until time of trial when were and ad- 23. mitted defendants’ Exhibits do not We any by plaintiffs’ find waiver retention these checks under the circumstances here related. February prior evidence also discloses that occasionally
1972 defendants were in default on the monthly payments plain time the made and that were acquiesced had however, tiffs this course conduct; February thereafter, and on were *8 526 by plaintiffs’ (plaintiffs’ from
advised a letter counsel timely 22) require thereafter, Exhibit would that, payments in accordance with of the contract. the terms filed, Between that time and the suit defend time monthly day payment ants were one late on August 1972. We hold that the “time is the essence” part reasonable notice contract was revived (plaintiffs’ 22) Exhibit that de the default January payment plain fendants on the 1972 entitled proceed accepting tiffs to and that foreclosure, August day late one would not amount Stinemeyer to a further In Farms, waiver. v. Wesco (1971), Inc., 260 109, 116, Or P2d we said: “* * * practice has, The vendor who a accepting to payments, permitted purchaser late rely only give on this course of need conduct, reasonable strict on notice that thereafter he will insist performance of the contract. Further de remedy.” faults would entitle him to his foreclosure assignment upon
The third of error is based any grant trial court’s refusal either relief, ground of foreclosure or as a cause of action for dam ages, encumbering for the act of premises party. mobile on home to a third Defend mortgaged ants the mobile home to the Portland Teach April (plaintiffs’ ers Credit Union on 24, 1971 Exhibit 18). findWe this encumbrance the mobile home was a breach of the contract. In this connection provided: the contract
“* * * agreed Buyers may It is also sell the mobile home and contents and Sellers will re upon being sixty (60%) paid lease the title to that per Buyers price, cent of the for which sell said mobile home and contents or Five Thousand and ($5,000.00) sum Dollars, whichever no/100 * * greater. *9 con- argue of the terms under the that Defendants notice of such breach written are entitled to tract days to notice opportunity after the within 10 and the remedy the default: <f## # pr0vided Buyers be shall not that any perform coven- to
deemed in default for failure
failure
than
other
ant or condition of this contract
to
pro-
price
payments
purchase
as
the
make
on
has
of
vided
until
said default
for herein
notice
Buyers
Buyers,
given
been
have
the
to the
Sellers
(10)
remedy
ten
default within
failed to
said
days
giving
this
for
after the
of the notice. Notice
purpose
given
the
shall be
to have been
deemed
deposit
containing
in mail
said notice
the
of a letter
Buyers
or to both
and addressed to either of
of them at their last known address.
* *
filing
argue
Plaintiffs,
hand,
other
that
supplemental complaint
is sufficient notice
ample opportunity
that
time
defendants had
after that
remedy
filing
trial
before
the breach. The
the foreclosure action
be deemed to be sufficient
would
unpaid
notice of the intention to declare the
balance
payable
delinquent payments.
due and
v.
Smith
(1956)
Owen, 154, 157,
Or
This resolution of this of error does dispose problem by plain not, however, the created removing tiffs’ action in from exhibits evidence and cashing Although them. we have concluded that de monthly fendants were default on installment payments, necessarily par it does not under follow, ticular facts of this that case, strict foreclosure should recognize be allowed. We and reaffirm the rule an nounced in Blondell v. 243 Beam, Or P2d 397 (1966), proper a case strict will foreclosure be permitted. In that case we stated : “* * * Where, as in the instant case, con- provides
tract for strict foreclosure the event by of a default the vendees, the contract contains a time-essence clause, the default is material and plaintiff has not been waived, the is entitled to right. foreclosure in some form aas matter of equity limit of discretion of court of in such a foreclosure the form is in the determination case foreclosure or strict foreclosure take, i.e., shall judicial at 298. sale.” Or Fitswater, Kinkaid v. was followed case (1970), where P2d 712 P2d 170, 174, 474 257 Or we said: anything said in to what we cannot add “We supra pay 293]. [243 The defend- Beam, Or
Blondell v. became taxes before contracted to ants delinquent. plaintiffs They right to harass had no comply by consistently failing the contract. with plain- contract, chose to breach Since defendants provided the remedies tiffs were entitled to exercise court has court nor this therein. Neither the trial any authority modify for either the contract party.” explained, above will be do not feel that the As we applied rule should be in this case. problem presented in is the
The difficult this case legal plaintiffs’ effect of removal from evidence subsequent cashing monthly installments ten- dered defendants from time elected principal owing declare the due and until even sum after the decree entered below. discern from We support affidavit filed defendants’ counsel appeal his motion to have dismiss the subsequent monthly retained the installments tendered *11 up following the decree to the date of at least the date of is December affidavit, the which urge acceptance 1973. their 14, Plaintiffs cashing a checks should not be considered any rights waiver of with their of their connection plaintiffs suit their to foreclose. It is doubtful that prejudice reap unilateral bene- assertion of no can fits of the which decree without the attendant hazards
530 legally Having accepted attach to their actions. performance tendered defendants and retained the payments installment made since the decree, are not now entitled to foreclose. We there- conclude, estopped deny fore, are to that, payments acceptance, tendered and their satisfies de- obligation fendants’ under the contract as of the time filing complaint. of the foreclosure denying
As a further basis for
foreclosure,
plaintiffs’
accepting
we hold that
action in
the install
payments
acquies
ment
as noted above constitutes an
amounting
cence
the trial court’s decree
to a waiver
right
appeal.
past ap
of their
court has
plied
party acquiesces
accepts
if
rule that
a
in or
judgment,
benefits from a trial court
he has waived his
right
appeal
judgment.
Floyd,
In Moore v.
(1872),
Or
it is stated:
“* * *
right
proceed
judgment
on the
enjoy
right
appeal,
its fruits, and the
are
contrary, they
totally
concurrent;
are
in-
consistent. An election to take one of these courses
* *
was, therefore, a renunciation of the other.
approval
This statement was cited with
in Pac.
Gen. Contrs. v.
Co.,
Slate Const.
608, 611,
Or
(1952),
251P2d 454
and in
Prier,
Cottrell v.
Or
(1951),
575,
thus obtained,
very
right
enjoyed.
decree
under which
* *
Although the trial court inwas error in conclud- ing that defendants were default on the install- payments, disposition requires ment our of the case an dismissing plain- affirmance of the trial court decree tiffs’ suit for strict foreclosure.
Affirmed. concurring part dissenting
HOWELL, J., part. agree aspects
I majority opinion with all except portion which holds that defendants January failing were default for to make the although overpaid had $50 monthly amounts due sellers $237.75. *13 appreciate
I that other have held that con- courts requiring monthly yearly payments or tracts cer- purchaser tain amount “or more” do not relieve the paying though due he next installment even has paid accepted and the in seller has amounts excess of payment. question the minimum is a matter of impression first in this state. agree
I would with trial court the instant rights subject case that the defendants’ should not be they paid a forfeiture where have more than required by minimum amount A the contract. suit equitable proceeding for strict an foreclosure is governed by equitable principles. should be It is in- purchaser paid conceivable me that a who has sev- years purchase eral months or in advance on his con- subject tract should be to a default his interest pay the contract forfeited if he fails to the next install- purchaser ment due. Under such rule a who re- is quired, example, payment to make his on the first day pay- of each month and thereafter makes another ment in the same month if default he to make fails following due on first month.
I would hold that the defendants were not de- January pay- fault when failed to make the ment. join opin- J., and Tongue, J., in this C.
O’Connell, ion.