The petition for a rehearing of this cause submits the following contention:
"The court erred in holding that where findings are conflicting, the court will adopt those favorable to the appellant for the purpose of entering a final judgment."
The brief which accompanies the petition states:
"The Supreme Court opinion, page 5, says: `According to our understanding of the defendant's position, he does not claim that the effect of the evidence which he presented in contravention of the written instrument was to modify the latter, but to prove that the minds of the parties never met.' The defendant does not contend that the evidence presented by him to the effect that the plaintiff would not consummate the sale unless he got possession was for the purpose of showing that the minds of the parties never met, but was for the purpose of showing that the plaintiff was unwilling to consummate to deal under the terms of the contract in so far as the contract related to possession."
In view of the fact that the defendant claims in the language just quoted that we misinterpreted his position, we shall deem that his position throughout has been as stated in the language just quoted from the brief. That being true, we withdraw the part of our opinion which deals with conflicting findings, including our quotation from 3 Am. Jur., Appeal and Error, p. 463, § 898. We wish our original opinion to be read as though it said nothing upon the subject of conflicting findings.
We have read again the transcript of evidence. The petition for rehearing and its accompanying brief contend that the evidence shows that when the plaintiff *Page 281 offered to pay the balance owing upon the contract he made a demand to which he was not entitled, that is, that he be given immediate possession of the property. It is the defendant's position that the plaintiff was unwilling to pay the balance of the purchase price unless he were given immediate possession.
Our original opinion states that the rights of the parties are governed by the agreement which they signed March 26, 1946. That writing is quoted in our original decision. The petition for a rehearing takes no issue with our statement that the agreement of March 26, 1946, governs the rights and duties of both plaintiff and defendant. By reverting to our quotation of that instrument, it will be seen that it says:
"Possession of the above-described premises is to be delivered to the purchaser immediately on delivery of the deed * * * or as soon thereafter as existing laws and regulations will permit removal of tenants."
It is conceded that the regulations promulgated by the Office of Price Administration govern and that under those regulations the tenants of the property were entitled to continue in occupancy for three months following delivery of the deed.
The findings of fact state:
"On or about May 18, 1946, plaintiff notified the defendant that he would pay the defendant the balance of the purchase price of said premises in the sum of $6,300.00 upon delivery by the defendant to the plaintiff of evidence of marketable title to said premises in the defendant * * *."
The defendant does not contend that that finding was unwarranted, and the evidence clearly justified its entry. The finding just quoted continues as follows: "and without any other condition whatsoever." *Page 282
Finding of Fact No. 6 says:
"There was no meeting of the minds of the parties as to the terms of the alleged contract of purchase, and, therefore, no agreement between them; * * *."
That finding, of course, will have to be disregarded. It is contrary to the conceded facts. The finding continues:
"Defendant had promised to deliver possession within 30 days after completion of the purchase of said property, but the plaintiff demanded immediate possession upon completion of said purchase and that plaintiff, therefore, failed to accept or perform in accordance with defendant's offer."
Under the contentions urged in the petition for a rehearing, we deem the finding just quoted and the one which says "and without any other condition whatsoever" crucial. They, of course, contradict each other. The finding that "the plaintiff demanded immediate possession" runs counter, in part, to an averment of the answer which says:
"On or about the 18th day of May, 1946, plaintiff notified defendant that he would pay defendant the balance of the purchase price of said premises in the sum of $6,300.00 upon the delivery of possession thereof, but only upon the express condition that possession be delivered within about three days thereafter."
We shall now determine whether the evidence indicates that the plaintiff's tender of the balance of $6,300.00 was subject to a condition that he receive immediate possession of the property. If substantial evidence supports the finding previously quoted that "the plaintiff demanded immediate possession upon *Page 283 completion of said purchase," the finding must be sustained, and in that event the attacked judgment is free from error.
In order to prove that the defendant breached the agreement of March 26, 1946, the plaintiff, during the trial, depended in part upon (1) the admission made in the answer that "on or about the 18th day of May, 1946, plaintiff notified defendant that he would pay defendant the balance of the purchase price of said premises in the sum of Six Thousand Three Hundred Dollars"; and (2) the following letter which the defendant received from the plaintiff's attorney on or about May 21, 1946:
"We wish hereby to advise you that we have been retained by E.C. Reddick to represent him in connection with his purchase of the property at 2631 S.E. 43d, Portland, Oregon.
"On March 26th, he paid you earnest money in the amount of $200.00, and at that time you entered into a binding contract to sell the premises to him for $6500.
"Among other things, the contract provided that you furnish abstract or title insurance showing good and marketable title. We are informed by him that you have failed and refused so to do.
"Demand is hereby made that you comply with your contract in that you furnish such evidence of title forthwith. For your information, may we advise you that our client is insisting that this transaction be closed, and that in the event you fail to go forward with it, he intends to sue you for damages."
The occupants of the property were the defendant's daughters and two sons-in-law. Each paid $15.00 per month rental. On the day when the plaintiff tendered payment he called upon one of the sons-in-law and *Page 284 thereupon, according to the plaintiff, the following conversation took place:
"A. I told his son-in-law that if he couldn't find a place — or I asked him about it first, and he said whatever Mr. Magel said or done was all right with him. I said, `If you can't find a place, I won't kick you out, I will make room; because the downstairs is all we need anyway.'
"Q. That conversation was with his son-in-law?
"A. Yes, it was.
"Q. What other conversation, if any, did you have with Mr. Magel?"A. Nothing, only that he refused to get in and make title insurance to me."
The foregoing facts indicate that the plaintiff timely tendered the balance owing upon the purchase price and asked for nothing except a deed and evidence of marketable title. It is agreed that both of those demands were warranted and that the defendant did not meet them.
The defendant, in order to prove that the plaintiff, in addition to demanding a deed and evidence of marketable title, also demanded immediate possession, offered evidence, which we shall now review.
The defendant swore that before the agreement of March 26, 1946, was signed, he told the plaintiff that he could not give possession until thirty days after the plaintiff had paid the balance of the purchase price. He swore more than once that it was agreed that he should have the thirty-day period just indicated to vacate the property. We think that the terms of the agreement which the parties signed March 26, 1946, prevail and that the tenants could not have been forced to vacate for three months. We mentioned the testimony given by the plaintiff concerning the purported *Page 285 thirty-day provision only because it has a bearing upon other evidence which we shall presently delineate.
One of the aforementioned sons-in-law was Albert Hollway, who became a witness for the defendant. Mr. Hollway testified that on Saturday, May 18, 1946, that being the day the plaintiff told the defendant that he was ready to complete the purchase, the plaintiff asked him (Hollway) if he (plaintiff) could have possession on the following Monday. We quote from Hollway's testimony:
"Q. Could you be any more specific than that?
"A. He said `Could you be out by Monday? — that was a Saturday night. Of course, I couldn't move on Sunday; Monday would be the day."Q. Who was present when Mr. Reddick came in and made this request?
"A. My brother-in-law."
Upon cross-examination the following occurred:
"Q. When you say that Mr. Reddick demanded possession, did he demand it or did he simply ask if you could arrange to give it?"A. Well, he requested it more or less; it wasn't exactly a demand. He said to — to sell the house, he had to have immediate possession.
"Q. He told you that there was a deal depending on that? Did he tell you to move?
"A. He asked if we could be out by Monday.
"Q. When you said no, what did he say?
"A. I didn't say no. I said, `Well, I don't know now. By rights we could have thirty days; I understand it to be thirty days; my father-in-law told me that.'"Q. And you disagreed as to when the thirty days began to run?
"A. Yes.
"Q. What else was said? *Page 286
"A. Well, he was going to see my father-in-law.
"Q. You didn't have any further conversation with him at that time?
"A. Well, we more or less discussed it.
"Q. But he didn't order you out of the house?
"A. No, he couldn't do that.
"Q. Well, he didn't even try, did he?
"A. He said to close a deal, he would have to have immediate possession. It wasn't exactly an order, no; I wouldn't call it an order. He isn't — he asked could we be out. That is the words he used."
It will be observed that the witness swore that the conversation described by him occurred on Saturday, May 18. After the plaintiff had had his conversation with Mr. Hollway he called upon the defendant. We now quote from the latter's testimony:
"Mr. Reddick came in and says, `Well, Jack, I have got the money to pay you off.' I says `That's fine.' He says `I have to have immediate possession.' `Well,' I says, `that's out.' And he says `Well, if you can't give me possession, I will have to move in with you.' I says `That's out too.' I says `Our agreement was 30 days after final settlement and I am going to have 30 days.' `Well,' he says, `give me the title insurance and the deed.' `No,' I says, `I won't. I am going to take that to my attorney and have him bring it up.' and he says `Well, I can't go to your attorney's office.' `Well,' I says, `that is where you will have to go; he is going to make it up.' `Well,' he says `how do I know whether that is any good?' `Well,' I says, `you bring your attorney over there and have him examine it, and if you don't want to do that, you go over and put down your money, take the title, take it over to your attorney, and if it don't come up to what you want come back and get your money.'"And we couldn't get any place. It was 8:30 Saturday evening. So I told him to come back *Page 287 Monday morning and we would settle it. Well, before Monday morning he called me up on Sunday and he says, `Can I have possession of that place?' and I says `No, I ain't doing business on Sunday.' And he says `Can I show that place to some of my customers?' I says `No, you can't do that.'" * * *
"Then he called again Monday evening and wanted to know whether he could take some people over there and show them the place. I told him that he couldn't. Then the next thing I got a letter from his attorney."
The record indicates that after the above-mentioned conversations had occurred the plaintiff consulted a firm of attorneys who wrote the defendant the letter which we quoted in a preceding paragraph. It is agreed that the defendant received the letter. The findings, referring to the above incident, state:
"The defendant did not at said time nor at any time deliver to the plaintiff evidence of marketable title to said premises in the defendant."
The unqualified admissions of the defendant support the finding.
After the foregoing testimony had been given, the plaintiff resumed the witness stand and testified as follows:
"Q. When it came down to the night that you went out there and said that you were ready to pay off on the Magel contract, was anything said between you and Magel as to whether you would or would not pay the money depending on possession of his place?"A. No; I would have made the purchase price whenever he got the title insurance brought up. I was ready to pay as soon as it was brought up.
"Q. Was that clear to Mr. Magel?
"A. It should have been.
"Q. What was said between you? *Page 288
"A. I only asked him for title insurance to be brought up. I was ready to pay off.
"Q. What did he say?
"A. He said `Do you think I am a fool to let you make $1,000 on that place?' * * *"Q. Then on May 18, the date when you went out there and notified the tenants, and, later, Mr. Magel, that you were ready to close the deal, was anything said at that time about possession?
"A. Only they said they had 30 days.
"Q. And you said what?
"A. Well, I didn't make much saying there at all. We didn't discuss that at all.
"Q. When did you request possession?
"A. I didn't make any exact date.
"Q. You said nothing about possession at all?
"A. I asked for possession but I didn't make any exact date. I asked when I could have it.
"Q. In response to that they said in 30 days?
"A. They said they would take it up with Mr. Magel and he had told them that they could have 30 days. That is the first time I knew that it was 30 days after the papers were fixed up."Q. What did Mr. Magel himself tell you when you contacted him later?
"A. He said he absolutely wasn't going to let me make $1,000 on the place.
"Q. Nothing was said about possession at all?
"A. I don't know; there might have been; he might have discussed about the possession too. However, I wasn't paying any attention to a few days' possession. What I wanted was the title insurance to the place."
The defendant presented other evidence in addition to the foregoing, but it was merely cumulative. The facts it portrayed were no different than those disclosed by the testimony which we have mentioned and quoted. *Page 289
We do not believe that the evidence indicates that the plaintiff conditioned his demand for a deed and evidence of marketable title with a demand for immediate possession. We think that the evidence is incapable of supporting a finding that he demanded immediate possession. It warrants the finding:
"On or about May 18, 1946, plaintiff notified the defendant that he would pay the defendant the balance of the purchase price of said premises in the sum of $6,300.00 upon delivery by the defendant to the plaintiff of evidence of marketable title to said premises in the defendant, and without any other condition whatsoever. The defendant did not at said time nor at any time deliver to the plaintiff evidence of marketable title to said premises in said defendant."
The only way we can reconcile the finding that the "plaintiff demanded immediate possession" with the record is to assume that it concerned the repeated statements made by the defendant that it was agreed before the contract of March 26, 1946, was signed that he would be allowed thirty days after delivery of the deed to vacate the property.
The petition for a rehearing is denied. *Page 290