Jakel v. Seeck

Mr. Justice Benson delivered the opinion of the court. 1. There are some 26 assignments of error, but we do not regard it necessary to consider more than 1 or 2 of them, as practically every question of law involved in the consideration of the case has already been passed upon by this court in the case of Seeck v. Jakel, 71 Or. 35 (141 Pac. 211, L. R. A. 1915A, 679). There is no merit in the plea that this suit is barred by the action at law, since this court has repeatedly held that, under the statute which allows an equitable defense by cross-bill in actions at law, a party may rely upon a legal defense in an action without thereby being precluded from afterward asserting his equitable title in an original suit: Hill v. Cooper, 6 Or. 181; Spaur v. McBee, 19 Or. 76 (23 Pac. 818); South Portland L. Co. v. Munger, 36 Or. 457, 462 (54 Pac. 815, 60 Pac. 5); Bowsman v. Anderson, 62 Or. 431 (123 Pac. 1092, 125 Pac. 270). 2, 3. We are therefore to consider the evidence in the case. It is voluminous and hopelessly conflicting. However, if we confine ourselves to the testimony submitted by the plaintiff, we discover that he was not misled as to the contents of the deed. It was read to him by the scrivener, and he then noted the fact that [494] the writing was silent as to any restriction upon the grantors in conducting a feed business upon their Grant Street property. In answer to a question By his attorney, he says: “Well, when the deed was read to me I objected a little about it on account of it being just that in alone and not putting the others in, on account of the feed proposition. “Q. What did they tell you? “A. He told me, he says, ‘Well, you are protected,’ and then I left it go at that, I thought it was all right, I didn’t say any more.” The evidence further discloses that on the same day that the deed was executed plaintiff gave defendants his note for $500 as payment on the purchase price of the'property, and the deed was then placed in escrow in a local bank, and nothing further was said- or done by either party until October 1st, at which time plaintiff demanded from defendants some written assurance that they would not conduct a feed business at their Grant Street property, and such a writing was then executed, which, through a blunder on the part of the scrivener, was so phrased as to be valueless, and on the next day the full purchase price was paid and the deed delivered and recorded. After about 4y2 years had elapsed, during which time the plaintiff conducted a feed business on the premises in controversy, he entered into a written lease of the property with Newman, in which there were no restrictions as to the nature of the business to be conducted thereon. Newman, shortly after taking possession, began to do a livery business, and about six months later defendants began their action to recover possession of the property. We find no evidence in the record which establishes plaintiff’s contention that defendants conspired fraud [495] ulently to get Newman to lease the premises in order to bring about a forfeiture of the title. The only evidence upon tliis point is that of Newman himself, who says: “I asked him if he would lease barn and sell his rolling stock. He said he would sell his rolling stock, but he asked me such a price that I couldn’t afford to pay it. I told him that I could not pay that, it was too much money. He asked me why I didn’t go lease the feed barn down at the depot. I told him that I had saw Jakel and tried to lease the bam, and he wanted $45 a month rent, and I was about to make the deal with him and he backed out. Then, two or three days later, I saw him again, and we was talking, and he wanted $50 per month, so I just laid $50 in his hand and tied him up.” We are unable to find in this testimony any evidence of fraudulent purpose. Nor are we able to find in the record evidence that there was ever any agreement between the parties to the effect that conducting a feed business by the defendants upon their Grant Street property should render the forfeiture clause in the deed void. It follows that the plaintiff has failed to make a case entitling him to the relief for which he prays. If this conclusion works a hardship upon the plaintiff, he has only himself to blame. He accepted the deed with full knowledge of its contents and conditions. He acquiesced in these conditions for several years without complaint, and, when he permitted the conducting of a livery business upon the premises, he knew the hazard he was incurring. The courts cannot make new contracts for parties, nor relieve them from obligations deliberately assumed. The decree of the lower court is reversed and the suit dismissed. Reversed. Suit Dismissed. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Burnett concur.