Hartley v. Dye

Oregon Supreme Court

Hartley v. Dye

136 P. 1185, 68 Or. 450, 1913 Ore. LEXIS 137

DecidedDecember 16, 1913

StatusPublished

This text of 136 P. 1185 (Hartley v. Dye) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hartley v. Dye, 136 P. 1185, 68 Or. 450, 1913 Ore. LEXIS 137 (Or. 1913).

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Opinion

Mr. Justice Burnett

delivered the opinion of the court.

As it affects the defendant bank, the plain terms of the document in question require that, in any event, after the expiration of 22 days, the money was to be repaid to the defendant Dye. It also provides that, if he is dissatisfied with the land, the money should be returned to him, and stipulates further that the only evidence of his satisfaction will be the exhibition by him to the bank of the United States receiver’s certificate, or a signed statement by both parties to that effect; and, still further, it is said that “the taking of the homestead by E. C. Dye shall be conclusive evidence of his satisfaction with the same, and his failure to file on the same for any reason within the time specified hereinbefore will be evidence of his dissatisfaction, and the money will revert to him upon demand. ’ ’

Although it crops out that he filed on the realty as a desert claim, it is not contended that he took the land as a homestead so as to make conclusive evidence of his satisfaction with it. It appears from the findings that he failed to file on it as a homestead, and the terms of the contract make that evidence of his dissatisfaction, entailing the result that the money should revert to bim upon demand. If the plaintiff would recover from the bank, which is a mere depository without interest in the subject matter, he should have caused to be exhibited to the bank, within the period of 22 days, evidence required by the contract of the satisfaction on the part of Dye to take the land as a homestead. The contract so far as it is binding upon the bank, [455]*455having expired by tbe limitation prescribed by its own terms, it was incumbent upon tbe bank to return tbe money to Dye. Plaintiff bas not disclosed, and tbe court bas not found, a situation rendering tbe bank responsible to tbe plaintiff. Tbe findings themselves do not justify tbe verdict.

Tbe judgment of tbe Circuit Court is reversed, with directions to enter an order dismissing tbe action as to tbe defendant bank.

Beversed With Directions : Behearing Denied.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bamsey concur.

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Mr. Justice Burnett

delivered the opinion of the court.

As it affects the defendant bank, the plain terms of the document in question require that, in any event, after the expiration of 22 days, the money was to be repaid to the defendant Dye. It also provides that, if he is dissatisfied with the land, the money should be returned to him, and stipulates further that the only evidence of his satisfaction will be the exhibition by him to the bank of the United States receiver’s certificate, or a signed statement by both parties to that effect; and, still further, it is said that “the taking of the homestead by E. C. Dye shall be conclusive evidence of his satisfaction with the same, and his failure to file on the same for any reason within the time specified hereinbefore will be evidence of his dissatisfaction, and the money will revert to him upon demand. ’ ’

Although it crops out that he filed on the realty as a desert claim, it is not contended that he took the land as a homestead so as to make conclusive evidence of his satisfaction with it. It appears from the findings that he failed to file on it as a homestead, and the terms of the contract make that evidence of his dissatisfaction, entailing the result that the money should revert to bim upon demand. If the plaintiff would recover from the bank, which is a mere depository without interest in the subject matter, he should have caused to be exhibited to the bank, within the period of 22 days, evidence required by the contract of the satisfaction on the part of Dye to take the land as a homestead. The contract so far as it is binding upon the bank, [455]*455having expired by tbe limitation prescribed by its own terms, it was incumbent upon tbe bank to return tbe money to Dye. Plaintiff bas not disclosed, and tbe court bas not found, a situation rendering tbe bank responsible to tbe plaintiff. Tbe findings themselves do not justify tbe verdict.

Tbe judgment of tbe Circuit Court is reversed, with directions to enter an order dismissing tbe action as to tbe defendant bank.

Beversed With Directions : Behearing Denied.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bamsey concur.

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Bluebook (online)

136 P. 1185, 68 Or. 450, 1913 Ore. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartley-v-dye-or-1913.