Elmira Lumber Co. v. Owen

JOHNS, J. The contract was made between the four different parties therein on July 31, 1915. The note was executed on April 4, 1916, and defendant Hyland was not a party to the contract. While the agreement says that the First National Bank of Eugene contracted to sell to the plaintiff the standing and growing timber upon the 187-aere tract of land, it further appears that the bank was acting “in a representative capacity only,” and that it was not personally bound, “but that any covenant and agreement of the first party herein made (which was the bank) shall be deemed to be the personal covenant and obligation of the second parties,” Sarah E. and B. J. Owen, defendants herein. In other words, it.was those defendants who contracted with the plaintiff to sell the timber upon the [132] tract of land in question, to furnish it “the right to go over and across said lands or any part thereof * * for the purpose of cutting, logging and removing said timber,” and “to erect and maintain suitable logging camps upon said premises,” to use “other than merchantable saw timber upon said premises for fuel purposes without charge,” and to construct a sawmill thereon “and to use the necessary space thereabout for millyards.” The purchase price was “one dollar and fifty cents ($1.50) per thousand feet, log measure.” "While the amount or value of the timber does not appear from the contract, it does provide that when the right of way is acquired and becomes available for the plaintiff that it shall then execute to the bank its certain promissory notes aggregating $2,000. As a further consideration for the contract the defendants B. J. and Sarah E. Owen did covenant and agree, at their own expense and within a reasonable time and for the use and benefit of the plaintiff, that they would procure a right of way for a logging road, railroad or flume over and across the east half of the southwest quarter of section 2, township 18 S., B. 7 W., W. M.; that they would commence negotiations therefor at once, and use their best efforts to acquire such rights at a reasonable price by grant or agreement; and that, should they not be able to do so within a reasonable time, they would organize a corporation and institute an action to acquire such easements by the right of eminent domain. "While it is not specifically alleged, it does appear from the defendants’ first further and separate answer that the true consideration of the note sued upon was' a release to the defendants from all of [133] their liability arising from and growing out of the contract. The defendants claim that in the circumstances they could not acquire such rights by eminent domain or other legal proceedings; that the contract was impossible of performance, and that such facts were known to the plaintiff at the time it took and executed the promissory note, and for such reason it was null and void and without consideration. 1. Assuming all the facts to be true as alleged, they would not constitute a defense. There is no allegation in the answer that the defendants, within a reasonable time or ever, used their best or any efforts to procure such right of way by agreement or grant or otherwise, or that they organized a corporation and instituted an action to acquire it through eminent domain. In fact, there is no allegation that such defendants made any effort whatever to acquire such easements. Their sole defense is the impossibility of performance. For aught that appears in the answer defendants could have acquired such rights through friendly negotiations with the owners of the land, or even through the right of eminent domain. Under the facts alleged, the breach of the contract was a sufficient consideration for the note. 2. The law of the instant ease is settled by the decision of this court in Reid v. Alaska Packing Co., 43 Or. 429 (73 Pac. 337), in which the syllabus lays down the rule that: “To excuse performance of a valid and lawful contract, made upon a sufficient consideration, it must appear obviously impossible of performance in the nature of things by anyone; mere impossibility of execution by the promisor is not enough.” [134] In the opinion it is said at page 436 of 43 Or., at page 339 of 73 Pac.: “The rule to be deduced from the authorities is that, if one enters into a valid contract, for a sufficient consideration, to do a lawful thing, possible in itself * * —that is, in the nature of things — to .be done, he must either carry out the contract according to its terms or answer in damages for a failure to do so. The mere impossibility of performance in fact will not be enough, hut the contract must be obviously impossible upon its face before such a defense can be made.” Upon any theory of the case the demurrer should have been sustained. The judgment is affirmed. Affirmed. Behearing Denied. McBride, C. J., and Bean and Bennett, JJ., con- ■ cur.