Colgan v. Farmers' & Mechanics' Bank

106 P. 1134, 59 Or. 469, 1910 Ore. LEXIS 90

• Court: Oregon Supreme Court
• Decided: January 18, 1910
• Status: Published

Opinions

Mr. Justice King

delivered the opinion of the court.

Plaintiff, by his counsel, moves to dismiss defendant’s appeal from the order denying a new trial, and to strike from the files defendant’s proposed bill of exceptions, containing Exhibit A. In support of the motion it is argued that the order denying a new trial is not “a final order affecting a substantial right,” as used in Section 547, c. 162, p. 313, of the Session Laws of 1907, and that the proposed bill of exceptions, Exhibit A, is an incumbrance of the record, in that the bill of exceptions, as allowed by the court, contains all the record, from which it appears no objections nor exceptions were taken.

Statement by Mr. Justice Moore.

This is an action to recover money. The complaint states in effect that defendant is a domestic corporation; that on January 27, 1909, plaintiff was the owner of 50 acres of land in Marion County, describing the premises, and being then indebted in the sum of $2,669.40 he on that day, in consideration of the cancellation of such debts and the surrender of the evidence thereof, executed to defendant a deed to the real property, pursuant to a contract which, among other things, provided that if he could procure a purchaser who was ready, able, and willing to buy the land and pay the sum of $2,669.40 and interest thereon at the rate of 8 per cent per annum from January 27, 1909, to the time of such payment, the defendant, upon the receipt thereof, would execute a deed of the real property to the purchaser and permit the plaintiff to keep the remainder of the consideration, if any; that plaintiff obtained James. Stewart who, on May 15, 1909, then was, ever since has been, and is, ready, able, and willing to buy the land and to pay therefor $4,000, which sum is the reasonable value thereof; that on the day last named plaintiff notified defendant that he had secured such purchaser, and then offered to pay to it, upon the execution of a deed to Stewart, the sum of $2,669.40, with interest as stated, amounting to $2,734.66; that in violation of the terms of the agreement, defendant refused to accept the payment or execute a deed, and then stated that it had conveyed the premises to - Young in exchange for other lands, thereby causing plaintiff to lose the difference between the sum so offered by Stewart and the amount of the debt, or $1,265.34, for which judgment is demanded.

While the questions thus presented may be raised by motion, the points being new, involving the construction of an act which, in some respects, changes the rules of practice on appeal, it is of such vast importance to the trial courts, and bar generally, throughout the State, that we deem it best to defer action thereon until the cause may be presented on its merits, when we may receive the benefit of an oral discussion of the subject; and it is so ordered. Denied.