Short v. Rogue River Irrigation Co.

Opinion by Mr. Chief Justice McBride. In 1909, Charles E. Short, one of plaintiffs, obtained a written option from F. A. Pierce to purchase the — 670 — lands described in the complaint herein for $6,500, paying the sum of $25 down. Later he entered into an agreement with his then wife, the other plaintiff herein, that they would make the purchase together; she to advance $1,000 for his use in paying for the land. He paid the greater portion of this sum to Pierce and received from him a written contract of sale for the sum of $6,500, less the sum of $750 already paid, which contract was taken in the name of his wife, and a deed to her from Pierce was at the same time deposited in escrow subject to compliance with the conditions of the contract. As seen by the statement herein, the plaintiffs entered into a contract with defendant Sherman, the substance of which is given in the foregoing statement. In May of the same year, Sherman assigned this contract to the Rogue River Irrigation & Power Company, having previous to that time done little or nothing in the way of attempting to make sales of the property. On August 1,1910, the power company paid the $4,725, with interest at 7 per cent, which was; applied upon the debt due to Pierce, whereby Mrs. Short became the owner of the legal title. Subsequently there was a divorce suit between the Shorts,, and in the decree in that case it was held that Mrs. Short was trustee for Charles E. Short of a half interest in the lands and in the contract of sale now in suit, subject to a lien in her favor against Short for $1,000, with interest at 6 per cent from March 1, 1909. The agreement between plaintiffs and defendant Sherman has a double aspect: (1) There is an agreement that he may sell so much of his land as could be sold by him prior to June 8, 1911, when his contract would expire by limitation; (2) there was an alternative option permitting him to purchase the land himself within the time specified by paying $6,900 in cash and — 671 — giving mortgages upon the various lots and parcels for the remainder of the purchase price, payable in installments with interest as provided in the contract. It appears that the power company after the assignment attempted to make, or did make, some sales, but upon what terms it does not appear, and failed to put the money if any were received into the funds provided in the contract or to report to the plaintiffs or account to them for any proceeds of the sales. It would appear that they were attempting to deal with the plaintiffs rather under the option clause of the agreement than under the selling clause, and there is some testimony tending to show that Williams the promoter of the company, induced Sherman by fraudulent representations to enter into the organization and assign his interest to the company. At all events, the company dissolved without complying with the terms of the contract, and after such dissolution it appears that there was some verbal agreement between Sherman and the former officers of the corporation, of which Sherman was a stockholder and director, that the contract should be retransferred to Sherman together with all payments made and rights arising by reason of such payments. It is contended by Sherman that he also had a written assignment made later, which he claims had been removed from his files; but this testimony is contradicted by his own answer, which states that it was impossible to make a written assignment by reason of the dissolution of the corporation. So it is doubtful to say the least whether he derives any rights whatever by reason of any informal negotiations between himself and the officers of the defunct corporation, none of whom testified upon this subject. The date of the alleged oral transfer is not given, and whether it was before or after June 8, 1911, is uncer — 672 — tain from the testimony. As defendant eonld have made it certain, it is only fair to assume that it was subsequent to June 8th. 1-3. Along early in June, probably about the 1st, Sherman asked Mrs. Short for an extension of time; at least, the matter was broached between them and talked over with no actual result. On June 7th he received a telegram from Mrs. Short stating she could .give no extension without the consent of Short. On "the same date he wrote a letter to Short, and another to Mrs. Short, stating that he had deposited in the bank at Grants Pass mortgages in the amount of $6,900 :and suggested certain alleged defects in the title. The letter also offered to pay the sum of $2,175 cash on condition that the specified defects in the title should be removed. Before the commencement of this suit, plaintiffs caused these apparent defects in the title to be remedied, of which defendant Sherman was notified; but, instead of paying the money due, he requested plaintiffs ’ attorney to intercede with plaintiffs and see that more time was granted him, which plaintiffs declined to grant, and deposited a warranty deed to the property in the bank subject to his order upon ■paying the amount due under the contract. He paid nothing, and the suit was brought. The mortgages which he deposited in the bank were not such as were required by the contract, and were never approved by Mrs. Short; nor was she in any way consulted as to the tracts of land upon which they should be given; nor is there anything in the evidence indicating that she ever extended the time for performance of the contract beyond the mere fact that she did not sooner cause .a suit to be brought to foreclose Sherman’s right thereunder, if he had any. The contract being joint, neither party could extend the time without the consent of — 673 — the other. The delay of plaintiffs for the purpose of correcting apparent defects in the title, which in fact were not real encumbrances but only apparent, probably extended the time for payment until these defects were obviated and the defendant notified of that fact, and the defendant’s alleged tender was evidently made in bad faith and for the purpose of securing time, it being plain from the testimony here that he never had the money to make the tender good. In fact, he admits that he had no money, but says that he had arranged to borrow it from his attorney. His attorney was also a witness and did not attempt to corroborate this assertion. The evidence shows that the defendant had against him, and still has against him, judgments which he is unable to pay, and his statements in this respect, like some others made by him in his testimony, cannot be accepted. "When written tender is made, a defendant must show that he had at the time, and still has, the means of making the tender good: Ladd & Tilton v. Mason, 10 Or. 308; Holladay v. Holladay, 13 Or. 523 (11 Pac. 260, 12 Pac. 821); McCourt v. Johns, 33 Or. 561 (53 Pac. 601). The defendant has not made any such showing in this case. To sum up, he has forfeited his option, and with it the sums paid by the power company upon it, and the plaintiffs ought not to be compelled to wait longer upon his attempts to retrieve himself by finding a purchaser for the property. "We think the decree of the Circuit Court allowing him to redeem by paying in cash the sums yet due was quite as favorable as the law or the facts in this case warranted. However, we will give him a further opportunity by providing that he may redeem by pay-’ ing the same sum with accrued interest within 90 days from the entry of the mandate of this court in the Circuit Court, said payments to include in addition the — 674 — costs and disbursements of this court; otherwise, the decree of the Circuit Court will be in all things affirmed. Modified and Affirmed.