Arment v. Yamhill County

43 P. 653, 28 Or. 474, 1896 Ore. LEXIS 96

Opinion

Opinion by

Mr. Justice Wolverton.

1. The contract which we are called upon to construe was certainly not drawn by the hand of an adept in the business, as, without its modification, it would seem the draughtsman had been peculiarly felicitous in stating as much of what was not wanted to be stated as that which was pertinent. Even in its present condition plaintiffs are not claiming under it as its literal interpretation would seem to import. But, like all other contracts in writing, this must be construed by taking it at the four corners and looking through the whole instrument from the identical standpoint of the contracting parties when it was entered into, and that construction must be given it, if possible, which will give effect to all its parts and carry out the obvious intention of the parties, and which will make the contract legal, rather than one that will render it void: Hildebrand v. Bloodsworth, 12 Or 80 (6 Pac. 233); 2 Parsons on Contracts, 500, 505.

2. The parties differ widely as to the proper1 interpretation of those provisions of the agreement touching the nature and amqjmt of the additional consideration, and the time and manner of its payment by the county. The plaintiffs contend that the “first,” “second,” and “third,” clauses read in connection the “seventh,” determines the measure of the additional consideration to be an amount equal to the levy of the total tax of eighteen hundred and ninety on all such taxable real property as should be found, unassessed on or after the date of the contract, plus an amount equal to one half of the levy of the total tax of eighteen hundred and ninety-one for county purposes only, upon such taxable real property, less the usual fee allowed the sheriff for collection, and that in effect the county obligated itself to pay these amounts absolutely, at the expiration of a reasonable time within which to make the collections; in other words, that the county incurred an absolute liability by entering into said contract, upon its performance by plaintiffs, to pay under the “first” clause six thousand and twelve dollars and seventy-four cents, and under the “second” the sum of six hundred and eighty-eight dollars and sixty-seven cents, all which was payable unconditionally at the expiration of a reasonable time within which to collect the sums named from the taxpayers. Upon the other hand, the defendant claims that the additional consideration which the plaintiffs were to receive was made conditional, and depended upon the collection of the taxes designated, that the identical money (taxes) collected should be placed to the credit of plaintiffs, and paid to them from month to month, and none other, and that the liability of defendant is commensurate only with the amount of such taxes actually collected. So we are to extract from this contract the nature and amount of the additional consideration provided for, and the time and manner of its payment. The nature and amount of such consideration is the pivotal question, the time and manner of payments are but incidents thereto, yet the provisions of the contract touching the latter are of vital force in determining the former. It will be unnecessary to make a critical analysis of the contract, as the controversy, thus narrowed, must be determined by the effect of a few controlling elements, considered from the standpoint of the parties at the time of its execution.

The duties of sheriff as tax collector are well known. He is in no way subject to the control and direction of the county court in the exercise of such duties, and can in no way be affected by its actions touching the assessment of omitted property and the collection of taxes, except as its exercise of disere tionary powers touching settlements with that officer upon his return of the tax rolls, and at the annual accounting required in July of each year, may incidentally affect him. As tax collector he is not an officer of the court to execute its orders and mandates, but is simply accountable under the statute and upon his official bond, as other officers known to the law. By clause “sixth” the county has stipulated that “the assessment upon all real property hereafter found unassessed shall be fairly and equitably made.” Thus far it vouches for the acts of the tax collector, that the assessment when made by him shall be fair and equitable, otherwise it does not undertake that his duties shall be faithfully performed, and especially is it true that the county does not undertake that he shall collect the whole tax to be levied. Taxes of the kind contemplated by the contract, state, county, and school, and especially the county tax, are the funds and property of the county in which they are levied: Hume v. Kelly, 28 Or. 398 (43 Pac. 380). Now, in the light of these conditions, it was stipulated, in contradistinction to the consideration of fifty dollars, which wTas to be paid absolutely upon the delivery of .the plats and assessment roll, that the parties of the second part are to receive for compensation in addition to the fifty-dollar payment, “first, an amount equal to the levy of the total tax of eighteen hundred and ninety on all such taxable real property as shall be found unassessed * * the usual fee allowed' the sheriff of said county for the collection of said tax to be deducted therefrom”; and “second, an amount equal to one half of the levy,” etc., of the year eighteen hundred and ninety one for county purposes, with the same provision as to the “usual fee allowed the sher iff.” Then comes a stipulation for the payment of these equivalent amounts, which is “to be made from month to month as the said tax shall have been collected by the sheriff of said county, and placed to the credit of said parties of the second part.” We think a reasonable deduction to be drawn from all this is that the additional consideration which the plaintiffs were to receive was made contingent and conditional upon the sheriff making collection of the taxes named, which should constitute a fund to be set aside by the county for their benefit, and should be paid to them from month to month as collected. If the contract does not mean this, why make and sustain the distinction all the way through between the two kinds of consideration, and why provide for the collection, setting aside, and payment of a special fund to the plaintiffs? It would have been a simply and easy matter to have provided directly just what the consideration should be. Not having done this, it is but a reasonable inference that no absolute consideration was intended, aside from the fifty dollars named. Under this construction of the contract stipulation, Noland v. Bull, 24 Or. 479, (23 Pac. 983,) and other authorities of like tenor relied upon by plaintiffs can have no application. The doctrine there established is that “where there is a present indebtedness due absolutely, and the happening of some future event is fixed for a convenient time for payment merely, and such future event does not happen, the debt is payable within a reasonable time.” Here there is no present or absolute indebtedness; indeed, no debt aside from the fifty dollars was contemplated, but provisions were made looking to the creation of a fund to be paid to plaintiffs as it accumulated, and to which they were to look solely for compensation, aside from the consideration first named in the contract. Viewed in the light of this construction of the agreement, the complaint shows upon its face that plaintiffs have been paid even more than they were entitled to, and hence the judgment of the court below will be affirmed. Affirmed.