Whitney Co. v. Smith

Mr. Justice Burnett

delivered the opinion of the court.

1. At the hearing the following occurred on the question of tender: A witness for the plaintiff was asked this -question:

“What, if anything, did you do toward tendering this sum of money to Mr. Smith?

“A. It was offered, I think, by Mr. Edwards — John D. Edwards, of our firm — and offered in gold or notes, or by Mr. Spencer, I am not certain which of the gentlemen, or, perhaps, both; but Mr. Smith reported to me. He claimed he did not understand what they were at, and he would not have anything to do with it; his wife would not sign the deed; and consequently he would not take the money.”

Defendant objected to this as hearsay and not sufficient to prove a tender. The plaintiff rested its case on this evidence of tender, and the defendant declined to give any testimony; whereupon the court made findings of fact and conclusions of law and decree in favor of the plaintiff, as before stated. The defendant now urges that this testimony was not only hearsay, but that it failed to show that the plaintiff offered performance prior to the commencement of the suit. We think, however, the objection is not available for the benefit of *191 the defendant, because, as he admits having denied the contract, which is virtually a disavowal of any liability thereunder, the law does not require the plaintiff to do the vain thing of tendering payment to a man who refuses in advance to be bound by any provision of the contract. In our judgment, under such circumstances, proof of a tender was unnecessary. West v. Washington Railway Co,, 49 Or. 436 ( 90 Pac. 666 ); Guillaume v. K. S. D. Land Co., 48 Or. 400 ( 86 Pac. 883 : 88 Pac. 586 ); Merrill v. Hexter, 52 Or. 138 ( 94 Pac. 972 : 96 Pac. 865 ); Livesley v. Krebs Hop Co., 57 Or. 352 ( 97 Pac. 718 : 107 Pac. 460 : 112 Pac. 1 ).

2. The defendant now urges for the first time that the complaint does not state facts sufficient to constitute a cause of suit, and argues that the decision should be reversed and the suit dismissed on that ground. It has been often held by this court that such an objection is never waived, and can be raised for the first time in the appellate court. Mack v. City of Salem, 6 Or. 275 ; Wyatt v. Henderson, 31 Or. 48 ( 48 Pac. 790 ) ; Robinson v. Holmes, 57 Or. 5 ( 109 Pac. 754 ).

3. The defendant contends that, inasmuch as it is alleged in the complaint that the plaintiff, at and before making of the contract set forth, was and is now the “legal owner and holder of the legal title to all of said property,” it is shown on the face of that pleading that it was at all times impossible for the defendant to comply with the contract and convey an estate which he did not have in the property, and could not obtain, except by purchase from the plaintiff itself. The plaintiff is contending here for a decree against defendant, requiring him, in the very words of the contract, to convey a fee-simple title to all real estate mentioned, free and clear from all liens and incumbrances whatsoever, said deed to be a full warranty deed, both as to title, seisin, and incumbrances. Not having such a title, the defendant *192 cannot comply with the demand of the plaintiff; and hence specific performance will be refused. Ormsby v. Graham, 123 Iowa, 202 ( 98 N. W. 724 ); Neuforth v. Hall, 6 Kan. App. 902 ( 51 Pac. 573 ); Flackhamer v. Himes, 24 R. I. 306 ( 53 Atl. 46 ); Hudson v. Max Meadows L. & I. Co., 99 Va. 537 ( 39 S. E. 215 ); Peters v. Van Horn, 37 Wash. 550 ( 79 Pac. 1110 ) ; Gregg v. Carey, 4 Cal. App. 354 ( 88 Pac. 282 ); Pub. Serv. Corp. v. Hackensack Meadows Co., 72 N. J. Eq. 285 ( 64 Atl. 976 ); Saxon v. White, 21 Okl. 194 ( 95 Pac. 783 ); Clifton v. Charles, 53 Tex. Civ. App. 448 ( 116 S. W. 120 ) ; Enslen v. Allen, 160 Ala. 529 ( 49 South. 430 ); Morrisey v. Strom, 57 Wash. 487 ( 107 Pac. 191 ); Baumgartner v. Corliss, 115 Minn. 11 ( 131 N. W. 638 ); Laubengayer v. Rhode, 167 Mich. 605 ( 133 N. W. 535 ).

There are cases like Thompson v. Hawley, 16 Or. 251 ( 19 Pac. 84 ); West v. Washington Ry. Co., 49 Or. 436 ( 90 Pac. 666 ), and Lockhart v. Ferrey, 59 Or. 179 ( 115 Pac. 431 ), where the vendor may elect to take a partial title in pro tanto performance of an agreement to sell real property, and have-a reduction of the purchase price sufficient to cover outstanding liens, or reimburse him for what he necessarily paid to perfect the title. Such precedents do not apply, however, to a case like this, where plaintiff affirms complete title in itself, makes no waiver, and demands specific performance in full.

4. Another reason why equity would not interfere to compel specific performance on such a complaint is that the plaintiff, on its own statement, has a complete and adequate remedy at law. If, in fact, it is the owner in fee simple, and entitled to the immediate possession of the premises in dispute, the ordinary action of ejectment at law would serve every purpose; and hence equity will decline to exercise its functions on such a complaint.

5. The pleadings in this case are loosely drawn; the complaint being defective in the respects already pointed *193 out. The answer is subject to much criticism.- Many of the denials verge very strongly on the literal denials condemned in such cases as Moser v. Jenkins, 5 Or. 447 , and McCormick Machine Co. v. Hovey, 36 Or. 259 ( 59 Pac. 189 ). The case was presented to the circuit court solely on the question of tender, and, as we have seen, was rightly decided on that point. We cannot, however, overturn the long line of decisions to the effect that the objection that the complaint does not state facts sufficient to constitute a cause of suit is never waived, and can be raised for the first time on appeal. The complaint being amenable to that objection, as we have shown, there is no recourse but to reverse the decree of the circuit court. The true interests of the parties, however, should not be decided or jeopardized upon a mere quip; and, believing that the real merits of the controversy have not been reached or determined by the litigation already had, the suit will be dismissed without either party recovering costs or disbursements from the other, and without'prejudice to any other litigation which the parties may feel advised to undertake in the premises.

Dismissed Without Prejudice.