Sutherlin v. Bloomer

Opinion by Mr. Commissioner King. 1. This cause appears to have been tried, evidence offered, exceptions taken to the court’s rulings thereon, and brought here on a bill of exceptions as in actions at law. However, our statute clearly provides 'that suits in equity on appeal shall be tried de novo on the transcript and evidence accompanying it: B. & C. Comp. §§ 406, 555; Robson v. Hamilton, 41 Or. 246 (69 Pac. 651); Powers v. Powers, 46 Or. 481 (80 Pac. 1058). 2. It accordingly follows that exceptions to the rulings of the court in equity suits are unnecessary, save in the particular instance designated in B. & C. Comp. § 406, where the court may refuse to permit testimony offered to be taken over its rulings in sustaining objections thereto, in which event an exception to such refusal appearing in the record is sufficient to indicate that no waiver of the right claimed is intended. 3. A bill of exceptions in suits in equity, therefore, cannot be — 404 — considered on appeal, and, when accompanying the transcript, must be treated as surplusage, except in so far as the testimony there certified to may be applied in determining the issues involved. 4. The objections taken as to evidence offered, if urged on appeal, may be considered; and where testimony is tendered, but objections to the interrogatories are sustained, and the party offering the testimony demands that it be taken and recorded over the court’s rulings, as provided in B. & C. Comp. § 406, but, notwithstanding such request, the court refuses to permit the proffered testimony to be taken, the cause may be remanded, with directions to admit the desired testimony, provided the testimony rejected shall appear admissible or necessary to a proper determination of the issues involved; but, in no event, is a bill of exceptions necessary in equity appeals. 5. Again, if the court sustains objections to interrogatories, but permits the witness to answer, and allows the response to be recorded over its rulings, and the opposite party, relying upon the correctness of1 the court’s action, offers no proof in response to the testimony thus taken, and on appeal it shall be determined that the court erred in sustaining the objections thereto, the appellate court may, if deemed essential to a proper determination of the rights of the litigants, remand the cause for further proceedings: Robson v. Hamilton, 41 Or. 246 (69 Pac. 651). 6. The record in this cause discloses all the evidence introduced by plaintiff, together with the questions asked by counsel for defendant with objections made thereto. The answers-were not taken over the rulings of the court, nor did defendant so request, but proceeded as in a law action. Had defendant demanded that the questions be answered, and offered to pay the additional expense incurred thereby, then, since the questions asked appear with the court’s ruling thereon together with counsel’s statement as to the purpose of the interrogatories, to which objections were sustained, he would be in position to urge the alleged erroneous rulings of the court in this respect as — 405 — grounds for remanding the cause for further proceedings; but, since he manifested no desire to have the testimony taken and reported over the rulings of the court, the question as to the admissibility of the excluded testimony is not properly before us for determination, except in so far as it may become necessary to a decision upon the first error assigned; and, since the transcript includes all proceedings except the points urged under the bill of exceptions, the points presented by the transcript of the judgment roll, including testimony taken, will be considered, so far as entitled thereto, under the record. It is maintained that, inasmuch as the plaintiff was in default in pleading to the answer, the defendant’s motion for judgment on the pleadings should have been sustained. This position appears to be based upon the theory that, notwithstanding the complaint alleges reasonable attorney fees, which is denied by the answer, the affirmative allegations in the answer are sufficient to preclude plaintiff’s recovery of any portion of the claim named in the foreclosure suit, including attorney fees; and not having been denied bjr ‘filing a reply, and no showing having been made as to the cause of the delay, a decree should be entered accordingly. The question as to whether it was within the power of the court to overrule the motion and allow plaintiff to file a reply or otherwise plead could be material here only in the event the answer states sufficient facts to entitle defendant to a dismissal of the foreclosure suit. 7. The question accordingly arises as to whether the affirmative allegations of the answer, which the failure to reply, for the purpose of the motion, admitted, state sufficient facts to entitle the defendant to a decree thereon. It appears well settled by the authorities that any action, suit or proceeding may be settled by accord and satisfaction thereof by a separate and distinct agreement, if entered into for a valuable consideration. . 8. As to whether the agreement or the performance thereof shall constitute a satisfaction depends upon the intention of the parties thereto: 1 Cyc. 336. 9. And this is the rule with an oral contract, if executed, as — 406 — well as when reduced to writing, but it is equally as well settled that when a contract between the parties is reduced to writing and such writing is clear and explicit, containing no latent ambiguities, parol evidence is not admissible, either to contradict, add to, detract from or vary its terms: Edgar v. Golden, 36 Or. 448 (48 Pac. 1118, 60 Pac. 2); Ruckman v. Imbler Lumber Co. 42 Or. 231 (70 Pac. 811); Hilgar v. Miller, 42 Or. 552 (72 Pac. 319). 10. But it is argued that since the answer avers that there was a prior agreement whereby the contract set out in the •answer should be accepted in full satisfaction of the claim specified in the'suit, and that such agreement was a part of the consideration given to defendant by plaintiff, whereby defendant executed the instrument, and under which he permitted plaintiff to receive the lease to the hotel, and whereby he let plaintiff’s agent, named in the writing, look after the collection of Sutherlin’s pro rata of the moneys coming to him under its terms, that this is sufficient, if true, to entitle him to a dismissal of the suit. While these facts are alleged, it will be observed that the answer also avers that the agreement entered into between plaintiff and defendant, together with Chan Hi, the H. Marks Company and the Douglas County Bank, for the purpose of such accord and satisfaction, consisted of the written instrument quoted in the answer, thereby restricting the agreement relied upon to the one there specified. This clearly indicates that the contract, by which the satisfaction of1 the claims, mentioned in the complaint was to be accomplished, is the written instrument referred to, and that it contains all the terms of an agreement between the parties, except the reference to the alleged additional consideration concerning the dismissal of the suit. It is true that this allegation is followed by one to the effect that plaintiff accepted the written contract and security referred to therein in full satisfaction of his claims; but when this statement is construed together with the averment relative to the dismissal of the suit, which it is urged was omitted from, and should have been included in, the contract, it can have reference only to the — 407 — covenants contained in the writings between them as set out in full in the answer, and a careful examination of this instrument fails to disclose any intention of dismissing the original suit. In fact, it is clearly stated therein that the consideration on the part of plaintiff and others signing with him consisted of the release of the writs of attachment mentioned, and nothing is there stated from which it could be inferred that any of the suits or actions should be dismissed. On the contrary, it is especially provided, not only that all costs theretofore incurred, but all costs which might thereafter accrue, by reason of the claims involved in the suit and actions pending, should be paid by o defendant, thereby indicating, by inference at least, that the suit and actions there named should remain in statu qua until the claims were fully paid in the manner specified in the written contract, or at least until a reasonable time had elapsed, or until the contract should become forfeited through some failure to comply with its terms. From any point of view, therefore, we can find nothing in the contract from which it can be inferred that there was any intention of dismissing either this suit or the actions mentioned prior to a full payment of the claims in controversy. But it is argued that it is always permissible to show by parol, other and additional consideration than that specified in the contract, and that the averments are sufficient for that purpose; and this position is tenable where a monetary consideration is specified: Burkhart v. Hart, 36 Or. 586 (60 Pac. 205). But, in the case before us, the consideration specified in the written contract consists of certain acts to be performed, and the authorities are practically unanimous in holding that, where the statement in the written instrument as to the consideration is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to perform certain acts, it cannot be changed or modified by parol or extrinsic evidence. A party has a right to make the consideration of his agreement of the essence of the contract, and, when this is done, the consideration for the contract, with reference to its eonclusiveness, must stand upon the same footing — 408 — as its other provisions, and accordingly cannot be affected by the introduction of parol or extrinsic evidence: 17 Cyc. 661; Hilgar v. Miller, 42 Or. 555 (72 Pac. 319); Walter v. Dearing (Tex. Civ. App.: 65 S. W. 380); Cheesman v. Nicholl, 18 Colo. App. 174 (70 Pac. 797); Ind. Union R. Co. v. Houlihan, 157 Ind. 494 (60 N. E. 943: 54 L. R. A. 787); Tirce v. Yoeman, 60 Kan. 742 (57 Pac. 955); Sayre v. Burdick, 47 Minn. 367 (50 N. W. 245). 11. The recital in the contract that it was entered into in consideration of the attachments being released, together with the manner of paying the indebtedness, etc., as there detailed, excludes the idea that any other agreements were to be performed, or of there being any other consideration. Then, conceding all the facts disclosed by the answer .to be true, which the absence of a reply at the time of the motion admitted, it appears that defendant would not be entitled to a decree of dismissal. -The same rule must prevail as to answers in this respect as in a complaint, from which it follows that it is immaterial that no demprrer was filed, for its insufficiency can be urged in opposition to the motion, whether in the court below or on appeal: B. & C. Comp. 72; Moore v. Halliday, 43 Or. 250 (72 Pac. 801: 99 Am. St. Rep. 724). 12. It is also maintained, in effect, that the contract discloses that the sums involved were to be paid out of the net proceeds of the business under the management there agreedVrpon, and that all pa3unents due under these terms are alleged to have been paid, which is not denied, for which reason it is suggested that the decree is premature. The allegation that the payments due have been paid.has reference onhr to the pa3unent out of the net proceeds, so far as they have accumulated, and not that the claims specified therein have been fully paid. Plaintiff does not rely upon this instrument for recove^, but upon the original contract as contained in the mortgage. Hence it was unnecessary for him either to allege or prove a failure on the part of defendant to comply with the terms of the new agreement. The defense that the decree is premature could avail the de — 409 — fendant only if pleaded in abatement; and, while the facts as alleged may have been sufficient to abate the suit, if pleaded for that purpose, they are pleaded in bar. This not only appears from the prayer of the answer, but it has been treated throughout the case by defendant as a plea in bar. Pleas in abatement, since they do not question the merits, but merely tend to delay the remedy, are not favored. Much strictness is accordingly applied to them, and they will not be aided in construction by any intendments. With them correctness of form is a matter of substance, and any defect of form is fatal: 1 Eneyc. PI. & Pr. 23. 13. Where matter in abatement concludes in bar, it must be' so treated (Morgan’s Estate, 46 Or. 242: 77 Pac. 608, 78 Pac. 1029), and its character must be determined, not from the subject-matter of the plea, but from its conclusion or prayer: 1 Encyc. Pl. & Pr. 27; Lyman v. Cent. Vt. R. Co. 59 Vt. 167 (10 Atl. 346); Pitts Sons’ Mfg. Co. v. Commercial Nat. Bank, 121 Ill. 582 (13 N. E. 156); Collette v. Weed, 68 Wis. 428 (32 N. W. 753). 14. Defendant, not having pleaded the contract in abatement, necessarily waived any right to rely upon it for that purpose, and accordingly is not in a position to insist that the decree was prematurely entered: Chamberlain v. Hibbard, 26 Or. 428 (38 Pac. 437). 15. The next point to which our attention has been directed is that the court below made no findings of fact, and it is urged that this duty is made imperative by our code. B. & C. Comp. § 406, provides that the court, in rendering its decision in suits in equity, shall set out in writing its findings of fact on all material issues presented by the pleadings, together with its conclusions of law, each of which shall be stated separately from the decree and be filed with the clerk, thereafter constituting a part of the judgment roll of such cause; and that the findings of fact shall have the same force and effect as a verdict of a jurjr in actions at law. These provisions are followed by an exception and qualification thereof, to the effect that on — 410 — appeal the cause shall be tried anew without reference to such findings. Under this exception, it is clear that a failure to make findings should not constitute reversible error; nor can we conceive of any reason why it should have such effect when all the evidence offered and properly admitted is before the appellate court. It is true that where the evidence has been taken in the presence of the trial judge, and the court has prepared its own findings, they may be of material assistance to this court in reaching its conclusion on close questions of fact. But, since our statute expressly declares that this court shall try the cause anew without reference to the findings of the lower court, it is obvious that the absence thereof cannot be deemed fatal on appeal, even though the statute directs such findings to be made; for, .while findings of fact and conclusions of law may, in some instances, be useful and convenient as a part of the records of the circuit court, it does not follow that they are essential here; and especially should the want of such findings not constitute reversible error, nor the cause be remanded on that account, when it does not appear that the complaining party is ■ prejudiced by reason thereof. 16. It is not contemplated by the act that findings shall be made where no issues are tried, and it appears, as a result of the conclusions here reached, that the only material issue made and tried in this cause, under the pleadings in the court below, was in reference to the attorney fees claimed by plaintiff, as to which all the evidence bearing on that question is before us, while the conclusion of the circuit court thereon is contained in the decree. While the findings of fact in some instances might be material and of importance, the want thereof, when appealed, is not reversible error where the transcript discloses all the proceedings had and evidence taken in the court below. There being no error disclosed by the record, the decree of the circuit court should be affirmed. Aerirmed.