Scott v. Hubbard

Mr. Justice Moobe delivered the opinion of the court. That the plaintiff sought to obtain $600 from the defendants, who secured that sum for him, there is no doubt. The only controversy is as to when that money was to have been paid. L. W. Zimmer, the husband of the defendant Mabel Zimmer, testified that the plaintiff, on Thursday, May 25, 1911, requested the witness to advance $600 on account of the option. “Q. "What did you say to him with reference to that? A. I told him that I was expecting some money from the east, and that as soon as that arrived I would be glad to make the payment. Q. Of $600? A. Of $600. That he said he would like to have it by the following Saturday. I told him that I didn’t know just how soon I would have it, but questioned whether it would be there by Saturday. He said then: ‘Well, if I could have half Saturday and the other half next week it would help me out. ’ I told him when it come I would just as well pay it all at one time, and he said, substantially, that would be all right, to get it as soon as possible; next week would do.” That on Thursday, June 1,1911, the witness, having secured the money, offered $600 to the plaintiff, who declined it, saying that he had borrowed that sum, whereupon the witness tendered him $50 on account of the option, which sum he also refused. In referring to the plaintiff and the $600 which he desired, Zimmer was asked on redirect examination: “What did he finally say with reference to getting that money next week?” The witness answered: “Well, he finally agreed that next week would do, and then he asked me about it Monday and again Tuesday; whether I had gotten the money.” This testimony is corroborated by that of G. E. Maxwell, the father in law of the defendant Schott, who was present and heard the conversation between Zimmer and the plaintiff in reference to the $600 which the latter desired to secure. [504] The plaintiff testified: That on Friday, May 26,1911, wishing to obtain $600 for M. Gr. Womack, who needed one half thereof on that day or the next and the remainder a few days later, he requested an advance of the money from Zimmer, who informed the witness that he could give no assurance of furnishing it by Monday following, Scott saying: “So the conversation about the money ended right there.” That on Saturday, May 27, 1911, the witness borrowed from a bank $600, and thereupon sent a check for $10 to Womack, to whom he also sent another check on the following Monday for $290, and soon thereafter checks for the remainder. The written orders on a bank were identified and received in evidence. Scott denies the sworn declarations, made by Zimmer, that the money would be accepted at any time after Saturday, May 27, 1911. The testimony given by the plaintiff is corroborated by that of J. W. Lindquist, who was present when the request to advance $600 was made, and who stated upon oath: “I know that Mr. Scott asked for that money; that is all I do know. And I know this: That he made it plain that he had to have the money at a certain time, Saturday or Monday as I have stated. He was very emphatic, and said it would do him no good if he didn’t get it just then.” Based on the conflicting testimony the findings of fact made by the trial court are to the effect that Scott led the defendants to believe that if the $600 were paid within a week or 10 days from the time the application therefor was made, it would be satisfactory to the plaintiff, and that the defendants were able, willing and ready to pay in advance the installment and request of the plaintiff to advance the sum so desired, and were led to believe that it would not be necessary to tender the June installment on or before May 31, 1911. 1. These findings practically determine that the testimony given by Scott and Lindquist in respect to when [505] the $600 could be paid is not equal to that produced by the defendants’ witnesses. Though an equity case is tried anew on appeal, which review when a question of fact is involved, requires an examination of all the evidence that has been brought up, independent of any findings thereon that have been made, such decision of the trial court, as a result of the investigation of testimony when it is as conflicting as in the case at bar, is entitled to much weight, since that court had the advantage of seeing the witnesses, hearing them testify, and observing their expressions and demeanor when on the stand, which attention to the details of a trial are circumstances for the ascertainment of truth not possessed by an appellate court from a mere inspection of the transcript of the testimony. In view of the seemingly balanced disagreement in the testimony, it must be taken as true that it preponderates in favor of the defendants, as found by the trial court, and, such being the case, the remaining question is whether or not the plaintiff’s representations and conduct were such as to estop him from asserting a forfeiture of the contract by reason of the defendants’ failure to pay the installment for June, 1911, during the preceding month. 2. The doctrine of estoppel in pais applies only to representations with respect to past or present transactions, and not to promises as to the future, which assurances, if valid at all, must be binding as contracts: 16 Cyc. 752. “The only case in which a representation as to the future,” says a text-writer, “can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right; and is made to influence others who have been induced to act by it”: 11 Am. & Eng. Ency. of Law (2 ed.), 425. 3, 4. "Where a party to a contract which is in force causes or prevents another party thereto from strictly performing the terms of the agreement, the former will not be permitted to avail himself of the default which [506] lie has thereby occasioned: Neppach v. Oregon & C. R. R. Co., 46 Or. 374 (7 Ann. Cas. 1035, 80 Pac. 482); Missouri, K. & T. Ry. Co. v. Pratt, 64 Kan. 118 (67 Pac. 464); Slotboom v. Simpson L. Co., post, p. 516 (135 Pac. 889). Analogous to this legal principle the rule is quite general that where time for the sale of real property has been postponed by a parol agreement, and such extension has been relied upon by the vendee, the statute of frauds cannot be invoked to perpetrate a fraud. 5. Thus where a party to a written contract orally agrees to extend the time for its performance, and puts the other party off his guard, he is estopped from taking advantage of the noncompliance with the terms of the writing, and the other party will have the extended time in which to discharge the modified agreement : Longfellow v. Moore, 102 Ill. 289; Scheerschmidt v. Smith, 74 Minn. 224 (77 N. W. 34); Thompson v. Poor, 147 N. Y. 402 (42 N. E. 13); and Whiting v. Doughton, 31 Wash. 327 (71 Pac. 1026). 6. “The time for performance of a written contract,” says an author, “may be extended or enlarged by parol, but a sufficient consideration of each parol contract must be shown, or the courts will not enforce it”: Beach, Mod. Law Coni, § 781. No new consideration is necessary, however, when mutual acts are to be performed by the parties: Izard v. Kimmel, 26 Neb. 51 (41 N. W. 1068). 7. Evidence is admissible to show that the time of performance of a written contract, within the statute of frauds, has been enlarged by a subsequent oral agreement: Stearns v. Hall, 9 Cush. (Mass.) 31. 8. By accepting in March, 1911, the money for the option for preceding months, the plaintiff thereby reasonably created the impression that time was not of the essence of the agreement; and, not having given [507] the defendants a written notice of any alteration of his supposed intention prior to June 1, 1911, he ought not to be permitted to insist upon a forfeiture of the contract: Graham v. Merchant, 43 Or. 294 (72 Pac. 1088); Miles v. Hemenway, 59 Or. 318 (111 Pac. 696, 117 Pac. 273). 9. In the case at bar the plaintiff’s representations having induced the defendants to believe that the installment for June, 1911, could be paid during the first week of that month, by advancing $600, for a year’s option, their promise to pay. that sum was a sufficient consideration for the extension of time, thereby estopping the plaintiff from asserting a forfeiture of the contract. The decree should be affirmed; and it is so ordered. Affirmed.