Bartholomew v. Aumack

34 P. 817, 25 Or. 78, 1893 Ore. LEXIS 12

• Court: Oregon Supreme Court
• Decided: November 27, 1893
• Status: Published

Opinion

Opinion by

Mr. Justice Moore.

The plaintiffs contend that they are entitled to recover from the defendants, in addition to the amount allowed them by court, the following: For surveying and other expenses, one hundred and fifty-eight dollars and thirty-five cents; and for money advanced on the contract, five hundred and forty dollars.

It was necessary to make a survey and plat of the land, and advertise the property, before any sales could well be made, and as the plaintiffs agreed to do these things with full knowledge that the contract might be defeated, they can have no cause of suit because the contingency occurred and the title failed. Their commission of ten dollars for each lot sold, and the possibility of obtaining the residue of the property and the assignment of the notes, after the purchase price was fully paid, was a sufficient consideration for their agreement. The contract provided that when the defendants had received seven thousand four hundred and four dollars and forty-one cents in actual cash from the sale of the property, if realized during the existence of the contract, they would convey to the plaintiffs all the unsold lots, and assign to them all notes wholly or partly unpaid. This gave to the plaintiffs an equitable interest in the land itself, as well as in the fund arising from its sale, subject, however, to be defeated by the condition that two thousand dollars in cash must be realized within six months from the date of the contract. To prevent the breach of this condition, they advanced the five hundred and forty dollars to make up the deficiency in the two-thousand-dollar payment. This was a voluntary payment upon their part, and made for their own benefit. They could have selected lots for themselves as a consideration for the payment, and had they purchased the entire tract, and paid the full consideration, the defendants would have been compelled too execute and deliver to them proper conveyances. If, upon the payment of the whole consideration, a conveyance could have been demanded, is it not equally true that upon the payment of a part of the consideration, they could have demanded a conveyance of a part of the property? By not selecting lots for themselves they elected to take the remainder of the property after the purchase price had been fully paid; and since the defendants had received in actual cash the full purchase price within the time agreed upon, the plaintiffs were at least entitled to select sufficient property to compensate them for the advances made, and as there was a total failure of the title after the full performance of the agreement, which precluded the plaintiffs from selecting or receiving any of the property they are entitled to the amount advanced by them and interest thereon from the date of payment. The decree, therefore, will he modified accordingly. Modified.