Decker v. Jordan

Mr. Justice Burnett delivered the opinion of the court. 1. The testimony clearly shows that when the $5,000 payment was made on June 15, 1910, the plaintiffs did [113] not have.a marketable title to the property, and in addition thereto, the same was encumbered by an unpaid mortgage, and that although they deposited their deed in the bank, as required by the contract, with an abstract, yet the latter document did not show at that time a merchantable title in the plaintiffs. The agreement does not specify that time is considered by the parties as of the essence thereof, though it is manifest from a fair consideration of its terms that plaintiffs were bound to furnish with their deed an abstract showing clear title in themselves prior to the maturity of any deferred payment. Supplying this document was as much one of the conditions of the covenant as furnishing the deed itself. This is the doctrine taught by Kane v. Rippey, 22 Or. 296 (23 Pac. 180); Id., 22 Or. 299 (29 Pac. 1005). It is not that an abstract is necessary to prove title, but the furnishing of one is a term of the contract to be observed the same as any other stipulation thereof. 2. It is common learning that before anyone can enforce an executory contract he must himself first plead and prove that he has fully accomplished the things to be performed by him or a waiver thereof on the part of the other contracting party. All this must appear in his complaint. It is not sufficient for him to allege in his primary pleading a general performance, and when this is disputed by the answer to return in his reply and allege a waiver: Cranston v. West Coast Life Ins. Co., 63 Or. 427 (128 Pac. 427.). 3. The defendants, operating as the other contracting parties, are subject to the same rule, and before they can claim relief they themselves must show full performance, a valid offer to perform met by a refusal by the opposite party, or a waiver. Neither of the litigants, although pleading the same, has been able [114] to prove that he has conformed to this rule of law. The testimony shows plainly that the plaintiffs did not have marketable title when the $5,000 payment was made; that they did not deposit an abstract at the time showing title in themselves; and that it was not until after the suit was commenced that they pretended to furnish such an instrument. On the other hand, as already stated, the defendants have not proven performance of or any valid offer to perform the agreement on their part, and hence are not in any position to demand rescission of the contract. On the part of the plaintiffs the suit was premature, and the defense is without merit. It was proper for the court to enter the decree which it did. It is affirmed. Affirmed. Mr. Justice Harris took no part in the consideration of this case. Mr. Justice Eakin absent.