O'Donnell v. Lebb

BURNETT, J. According to the argument of Lebb’s brief: “Two propositions are presented to the court in the appeal of this suit: “First: That the trial court exceeded its authority and overstepped the bounds of an equity court in awarding to the plaintiff relief in addition to that specified in the contract. “Second; That the court failed to do equity in not permitting defendant and appellant ample time within which successfully to work out the terms of the contract.” 1. Taking these in inverse order, the contract itself prescribes that it should be completed within thirty days; that time is of the essence thereof and that no extensions should be made without the written consent of all parties thereto. There is evidence that many [5] extensions of time were granted by tbe plaintiff to Lebb in which to close np the transaction, so that considering the terms of the agreement itself and the indulgence given, there is no merit in his second contention. Under the first objection appearing in the brief as already noted, Lebb avers that the Hawthorne lots and the 37% shares of stock were liquidated damages for a breach of all and every of the conditions of the contract and that the award of that property to the plaintiff was the utmost that the court could do in the adjustment of the dispute. The wording of the contract is plain, however, that the Hawthorne lot and the Laurelhurst stock were pledged as liquidated damages for the failure of Lebb to deposit a deed showing a clear title to the Ohio property. The terms of the contract made this applicable alone to that feature thereof and it had nothing to do with the Laurelhurst property. 2. A court of equity, having before it the parties and the subject matter, may decree specific performance of a contract so far as the defaulting party can be made to perform: Lockhart v. Ferrey, 59 Or. 179 (115 Pac. 431), and authorities there cited. Even adopting the defendant’s view that this was a double contract, so to speak, we find that he broke the condition respecting the transfer of the Ohio property. It is proper that he should incur the liability to liquidate the damages which he prescribed in his covenant, namely, the transfer to the other party of the Hawthorne lot and the Laurelhurst stock. He was to get 250 shares of the Empire stock for the deposit of the Laurelhurst deed. He got the stock, ■ albeit by chicanery. He should likewise surrender for that the [6] deed to the Laurelhurst lots. Not having performed the stipulation for the transfer of the Cleveland property, Lebb cannot complain that the plaintiff should treat it as a rescission of that feature of the agreement, reclaim the 250 shares of stock and receive the stipulated liquidated damages. The decree is affirmed. Affirmed. McBride, C. J., and Benson and Harris, JJ., concur.