Kee v. Carver

BURNETT, J. 1, 2. One ground of error assigned is that the court did not make findings on all of the issues raised by the pleadings. It is well settled that in trials by the court the findings of fact must be as broad as the issues involved and must dispose of all those questions : Chung v. Stephenson, 50 Or. 244 (89 Pac. 386). The findings make no allusion to the denied allegation of the defendant’s claim that by subsequent agreement the timber on part of the tract was eliminated from the original contract and that on account of notices [412] from the plaintiff and Smith he suspended operations for thirty days during the life of the contract. This of itself was material error. 3-5. As decided in Anderson v. Miami Lumber Co., 59 Or. 149 (116 Pac. 1056), the contract here in question operates to convey the present title to all the timber on the tract, but the estate thus created was one upon condition liable to be defeated on failure of the grantee to remove the timber within the time specified. If this had been a cash transaction and the parties had agreed upon the amount of the purchase price, the defendant by paying the money in advance would have purchased at the risk of the defeat of his title by the condition subsequent, that he should remove the timber by a certain time, and he would have had no ground for recovering money from the plaintiff. So, in the instant ease, on the record before us the defendant admittedly paid to the plaintiff $600, the price of 600 cords of. wood. It is the defendant’s misfortune if he got for that payment only 560 cords, unless some fault of the plaintiff brought about that result. But there is another condition to this contract which must be taken into consideration. In the ultimate analysis the purchase price to be paid must be ascertained by an actual cutting of the timber and manufacturing it into cordwood, which is to be measured as a basis of computation of the amount to be paid. The present action is instituted to recover the balance of the purchase price and not damages for a breach of the agreement. But under the contract pleaded, the purchase price is incapable of computation. If the plaintiff insists on the provision that the wood is to be cut and removed by August 1, 1917, he must also take the consequence of being bound by the method stipulated for ascertaining the price to be paid. As already [413] pointed out, this can be determined, in face of failure to agree upon estimates, only by cutting the wood and actually measuring it. The contract is executory in that respect; and until it is executed according to its terms, no action will lie for the purchase price eo nomine. 6, 7. Conceding that the defendant breached the contract by failing to remove the timber by August 1, 1917, still, in the absence of the means by which the price can be computed, the plaintiff must show that he suffered damages, before he can recover. If he retained title to the land and nothing else was shown, he could not, as a measure of "damages, claim the full contract price and keep the title to the timber which reverted to him by the expiration of the period within which it was to be removed. 8, 9. It remains to be seen whether the allegation about the agreement with Smith alters the case. It is not stated that a conveyance was actually made to Smith. Neither is it charged that he has performed the contract entitling him to conveyance. Conceding that the title to the yet standing timber has been taken from the defendant by reversion, it does not follow that it reverted to Smith, and hence was lost to the plaintiff. In other words, the standing timber goes with the general title to the land after the lapse of Carver’s interest, and it is not disclosed that Smith succeeded to the general title. For all that appears, Kee yet has the land and standing timber, in which case he cannot keep the timber and recover the purchase price. It is not apparent that the plaintiff has suffered any damages up to this time by reason of the failure of the defendant to remove the timber. The conclusion is that the judgment must be reversed and the cause remanded to the Circuit Court for further proceedings. Reversed and Remanded.