Hilgar v. Miller

Mr. Chief Justice Moore, after stating the facts, delivered the opinion of the court. 1. It is contended by plaintiff’s counsel that the minds of the parties to the deed never met in respect to the services to be performed — Grossman requiring a home and attention, while Miller expected him to go to the soldiers ’ home, thereby relieving him from all responsibility — and hence no agreement was ever entered into as a foundation for the execution of the deed, and the court erred in awarding the lots to the defendant.. The rule is well settled that an offer by one person to another imposes no obligation upon the former unless it is accepted by the latter according to the terms on which it was made, and qualifications of or departure from those terms invalidate the offer unless the same be agreed to by the party who made it: Bishop, Contracts, § 323; Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225. Miller testifies that on May 9,1899, Grossman, in consideration of the lots which he offered to convey, desired to be taken to his house, have his bills paid, and at his death a decent burial, and in reply thereto the witness remarked that, if Gross-man should live four or five years, the property would not be sufficient compensation for the care and expense required. In explaining what was said in response to such objection, Miller says: “Either Mr. Grossman, or Whitehead, or Damon, and I can’t remember which it was now, remarked that he was going to the home anyway, and he says, ‘Then it will take the responsibility off your hands, and expenses; ’ and I think at that time Mr. Whitehead said, ‘You better take it, Miller. I know you are somewhat involved;’ and he says, ‘You better take it.’ I stood a minute and studied, and I says, ‘Well, on that point I will risk it anyway. ’ So we passed that. ” We think the point insisted upon is without merit, for the written escrow agreement, signed by Grossman and Miller, supersedes all other understandings they may have had in relation to the services — 556 — required or to be performed and, as it was stipulated therein that Miller should care for and furnish these necessaries to Grossman, evidence of what they may have said prior to the consummation of their contract was inadmissible to vary or contradict its terms: Lee v. Summers, 2 Or. 260; Portland Nat. Bank v. Scott, 20 Or. 421 (26 Pac. 276); Wilson v. Wilson, 26 Or. 251 (38 Pac. 185). 2. What has been said upon this subject will apply with equal force to the testimony introduced by Miller tending to show that, prior to the execution of the deed, Grossman stated to several of the witnesses that he intended to' give the property to him; for the stipulation in the escrow agreement, to the effect that the grant was to be rendered inoperative by a failure to perform any of the conditions assumed by Miller, conclusively refutes the idea of a donation. 3. It is contended by plaintiff’s counsel that Miller, never having cared for or given any attention to Grossman after he started for the soldiers’ home, or offered to pay the expenses incident to his burial, was not entitled to possession of the deed, the securing of which conveyed no title to the lots, and hence the court erred in decreeing that he was the owner thereof. A deed intrusted to a stranger as an escrow- possesses no vitality until the condition is fully performed, or the event occurs, upon the faith or happening of which it was left with the depositary; and no delivery of. it by him to the grantee prior to that time, without the grantor’s consent, can give animation to the instrument, so as to convey title to the premises: Devlin on Deeds, § 322; Gaston v. City of Portland, 16 Or. 255 (19 Pac. 127); Tyler v. Cale, 2 Or. 515 (45 Pac. 800). It has-been held that a grantee in a deed deposited as an escrow is only entitled to a delivery thereof upon a strict compliance with the stipulations upon his part which constitute conditions precedent to the transfer of the title: Beem v. McKusick, 10 Cal. 538; Dyson v. Bradshaw, 23 Cal. 528; Hinman v. Booth, 21 Wend. 267. A party tq a contract may always dispense with its conditions which are favorable to him, and waive their, performance : 3 Addison, Contracts, *1193. This author, illustrat — 557 — ing the principle thus announced, says: “If the act covenanted or agreed to be done by one party cannot be completed without the concurrence of the party for whom it is to be done, the former must do all that he can do without such concurrence to complete the act, and, if he does this, he does what is equivalent, in law, to actual performance” (page *1194). The testimony shows that Grossman had been a resident of Jackson County about thirty years, and at the time of his death had government bonds for $1,400 on deposit in one of the Medford banks. He was a member of the Grand Army of the Republic, and, as Miller belonged to the same order, they became and were very close friends. R.H. Whitehead testifies that in the fall or early winter of 1898 he was staying at Los Angeles, and Grossman at Pasadena, California, and together they went to Santa Monica, where the latter sought admission into the soldiers’ home at that place; but, there being no room for his accommodation, his application was postponed until some months later, when, a new building having been completed, he was notified that he would be received, and transportation from Medford to Santa Monica was sent to him. Prior to its receipt, however, he had become so ill as to require constant care and attention, which was furnished by his comrades, and at the time he executed said deed the limit of the pass sent to him had expired. When taken to Miller’s he was quite sick, but, his health beginning to improve, he stated to the witnesses Noble and Bowman that he was well treated in his new home, and supplied with all he wished. As soon as he became able to travel, his desire to go to the soldiers’ home increased, and he informed the witnesses Bowman, Miller, Noble, and Whitehead that he intended to leave; saying that he thought the trip.to and the climate at Santa Monica would be beneficial to him; remarking, however, that if he was dissatisfied with the treatment which he might receive at the home, or if his hopes of regaining his health were not realized, he would return to Medford. His health having very much improved, and having secured an extension of the transportation, he left Medford July 1, 1899, for the soldiers’ home; but just prior to going he told Whitehead, a director in — 558 — the Medford bank, to beep his government bonds, until he returned, and also left a Winchester rifle with A. H. Hooker, telling him he would need it when he came back. At the time the deed was. made he was about seventy years old, and had suffered a slight paralytic stroke. M. S. Damon testifies that he had taken care of and nursed Grossman night and day for about two or three weeks prior to May 9,-1899, and in speaking of his condition during that time he says: f ‘ There were times when he wasn’t in his right mind when I was taking care of him.” The witness was present when the deed was signed, and in answer to the. question, “What was his mental condition on the day he executed the deed?” replied, “Well, he .was quite feeble.” Q. “Did he have a clear conception, as far as you could determine, of what he was doing, or was his mind clouded? ‘ A. I think he did, right at the time.” That Gross-man possessed capacity to execute the deed is the opinion of the witnesses Hooker, Merriman, Noble, Whitehead, Miller, and'his son, and this conclusion is amply supported by the evidence. ' ■ We think the testimony conclusively shows that from May 9, 1899, to July 1st of that year, Miller fully performed every condition of his agreement to the entire satisfaction of Gross-man, who voluntarily left Medford, hoping that his health would be restored ;■ expecting, however, if he was disappointed in this particular, or if he did not enjoy living- at the home, to return and live with Miller. That he expected to come back is evidenced by the directions he gave Whitehead in relation to keeping his- government bonds, and by what he said to Hooker about the rifle he left with him. Grossman possessed a strong will and was very careful in all matters relating to money transactions, and it is quite probable, if he had been obliged to go to the soldiers’ home, he would have demanded a return of the deed; and his forbearance in that respect is a circumstance tending to corroborate his statements that he was well treated at Miller’s, and to confirm the inference that his departure was voluntary. It is argued, however, that soldiers whose term of service has — 559 — expired consider living at a place provided by a state or tbe general government for their accommodation as in the nature of an enforced residence in an almshouse, and that Grossman’s having left Miller’s house to seek shelter at a soldiers’ home tends to show that he was compelled to secure care, attention, and medical attendance which Miller neglected or refused to furnish him. No testimony was offered tending to show that soldiers, as a class, entertain the sentiment attributed to them; but, if such fact were conceded, we think Grossman did not possess the characteristics of his comrades, for, having an investment of $1,400 in government bonds, he was not obliged to accept the accommodation and treatment which a soldiers’ home affords its inmates. Miller testifies that he was able, ready, and willing to perform every condition stipulated for; and we think, in so far as Grossman permitted him to do so, he fully kept his contract. Grossman having’died at the soldiers’ home, and while an inmate thereof, it was admitted that the expenses incident to his journey to, and residence and burial at, Santa Monica, were borne by the managers of the home. That his body was consigned to earth by representatives of a nation grateful for sacrifices made by its defenders in times of peril, and that the sepulchral rites were performed by comrades whose common experience of danger and privation united them in a bond of sympathy, demonstrate that he received the greatest honor and the most loving tribute that could be paid to a loyal soldier. If he had died at Medford, his body could not probably have been given better interment; and, as the costs of travel, residence, and burial, though not defrayed by Miller, were not imposed as a charge upon Gross-man’s estate, the plaintiffs, as his heirs, suffered no injury from a failure in this respect literally to keep the conditions of the escrow agreement, which undoubtedly would have been performed if Grossman’s death had occurred where he so long lived. We believe that Miller faithfully performed every condition assumed by him, so far as he was permitted to do so by Grossman, and that he was entitled to the deed deposited with the Jackson County Bank, which, when delivered, conveyed — 560 — the legal title to the premises. It follows from these considerations that the decree is affirmed. Affirmed.