Lombard v. Kies

Mr. Justice Benson delivered the opinion of the court. The entire problem in this case is based upon the question as to whether or not there have been such breaches of the contract as to entitle plaintiff to rescind. 1, 2. It is obvious from an examination of the writing that the agreement is nothing more or less than a unilateral option to buy in which the vendee may or may not at his own pleasure make the payments specified therein: Scott v. Merrill’s Estate, 74 Or. 568 (146 Pac. 99), and cases there cited. He did not assume the Balfour, Guthrie & Co. mortgage; for the time had not arrived when he would be called to elect as to its assumption. Beading the supplemental contract in the light of this conclusion, it follows that if the plaintiff complied with the terms thereof in seeking a deed to the 40-acre tract, he was entitled to a good and sufficient deed free from the encumbrance of the mortgage. However, it is conceded that • plaintiff never specified in writing the land that he desired to have conveyed, and therefore, having failed to comply with the terms of the contract himself, he is in no position to complain of a default upon the part of his adversary. 3. Plaintiff’s second contention presents greater difficulty. There is much diversity of opinion in the authorities as to whether or not a public highway is such an encumbrance as to constitute a breach of the covenants in a conveyance. Many of those which [362] agree upon the main point differ widely as to the reasons which lead to the common conclusion. These authorities are quite fully collated in Sandum v. Johnson, 122 Minn. 368 (142 N. W. 878, Ann Cas. 1914D, 1007, 48 L. R. A. (N. S.) 619), and in that opinion the result is stated in this language: “While the decisions are conflicting, the clear weight of both argument and authority is that the existence of a known rural highway does not constitute a breach of the usual covenants in a deed conveying agricultural land.” This court has held that the existence of an open, notorious and visible encumbrance upon land contracted to be conveyed, such as a railroad in operation, is not an encumbrance which renders the owner’s title unmarketable and assigns as the reason for so holding that it is presumed that in fixing the purchase price the existence of the encumbrance was taken into consideration: Barnum v. Lockhart, 75 Or. 528 (146 Pac. 975); Wetherby v. Griswold, 75 Or. 468 (147 Pac. 388). The inevitable logic of this deduction is that, if the establishment of the highway is unknown to the contracting parties, the question of its effect upon the agreement depends upon the facts of the individual case, especially in a suit to rescind; for, if the prospective highway renders the premises unsuitable for the purposes intended by the vendee, the discovery thereof presents a condition which was not in the contemplation of the parties, and the vendee ought not to be compelled to purchase something different from that for which he bargained. In the case at bar the land was about 25 miles from Portland, where plaintiff resided. He was purchasing the land for the special purpose of making the 40-acre tract a summer home for his family. The possibility of having a dusty country [363] ‘road within 50 feet of his dwelling-house, rendering habitation therein disagreeable and the passing of automobiles and other vehicles so near his home bringing added dangers into the lives of his children, presents a condition not contemplated at the time of entering into the option agreement and entitled him, we think, to a decree of rescission. A decree will therefore be entered here annulling the contract, and a judgment in favor of plaintiff as prayed for in his complaint, except that the taxes paid by him should be offset by his occupation of the premises from December 4, 1913, and that the moneys expended by him in putting in a crop should be eliminated, since, so far as the record discloses, he harvested and derived all the benefits from such crop. It appears from the record that pending litigation the property was leased for the crop season of 1914, at a rental of $350, of which $175 was deposited in court with the lease, by agreement of the parties, to abide the decision of the court. This money and the lease are to be withdrawn by the defendant, who will be given four months from the entry of the mandate herein in the lower court in which to pay the sums so adjudged to be paid, and plaintiff decreed to have a lien upon the premises for such payment. Reversed. Degree Rendered. Mr. Justice Eakin took no part in the consideration of this case.