Cole v. Willow River Co.

Argued Nov. 1, decided Nov. 28, 1911, rehearing denied Feb. 6, 1912.

On the Merits.

[118 Pac. 1030.]

Statement by

Mr. Justice McBride.

On September 12, 1910, plaintiff filed his complaint, alleging substantially that defendant is a corporation, organized under the laws of this State; that on March 17, 1908, plaintiff and one D. M. Brogan entered into a written contract whereby plaintiff agreed to convey to Brogan the clear title to his interest and that of his co-owners in certain described mining claims and water rights in Malheur County; that thereafter on April 2,1908, Brogan assigned and transferred all his rights under the contract to defendant; that on May 20, 1908, defendant caused a deed to be prepared for execution by plaintiff and his co-owners, conveying to defendant all the property described in his contract with Brogan, which deed, at the request of defendant, was executed by plaintiff and his co-owners and was placed in the First Bank of Vale to be delivered when defendant should pay to plaintiff the $20,000 as specified in the contract; that on May 28, 1908, without the knowledge or consent of plaintiff and contrary to their agreement, defendant caused the deed to be placed on record, and immediately entered into the possession and enjoyment of the property, and is still in *604the possession thereof and has erected large and valuable improvements thereon; that neither D. M. Brogan nor defendant has paid any part of the $20,000.

To this complaint defendant appeared on September 20, 1910, by motion, to compel plaintiff to make his complaint more definite and certain, and on January 9, 1911, withdrew the motion and filed an amended motion to the same effect, but alleging new grounds of uncertainty. This was overruled in part and allowed in part on January 11th. Defendant then filed a general demurrer to the complaint, which was overruled, and defendant was given until January 18th to answer. On January 23d it filed its answer, and on the 25th of that month an amended answer was filed, which, in substance, admitted the agreement with Brogan; admitted that the property was conveyed by plaintiff and his co-owners to defendant and the deed recorded; but denied that the deed was recorded without the knowledge or consent of plaintiff; and alleged that plaintiff had consented that the deed should be taken from escrow and recorded. The answer denied that defendant ever promised to pay the $20,000 or any other sum to plaintiff for plaintiff’s interest in the property, and denied that at the time of the conveyance plaintiff had any interest therein. For a further and separate defense the answer alleged that at the time the contract of March 17, 1908, between plaintiff and Brogan, was executed, plaintiff represented to Brogan that he had a good possessory title to the lands and a good title to the water rights described in the contract, and that by reason of such statements, and not otherwise, Brogan entered into the contract; that prior to May 28, 1908, and after defendant had taken possession of a portion of the premises and had commenced the construction of a dam and reservoir thereon, the Eastern Oregon Land Company served notice upon plaintiff and defendant that it was the owner of the land and water rights and claimed title *605thereto superior to the right or title of plaintiff, Brogan, or defendant; that by reason of such claim the defendant declined to make any payment to plaintiff or D. M. Brogan on account of the purchase of the lands and water rights and declined to carry out the contract or accept a conveyance thereunder; that about the 28th day of May, 1908, plaintiff and this defendant entered into a new agreement relative to the purchase of the lands, whereby it was agreed that the same should be conveyed to the defendant and the deed placed on record so as to vest such title as plaintiff had in the defendant; that no payment on the purchase price should be made to plaintiff until the title and right of plaintiff and his co-owners had been decreed superior to the alleged rights of the Eastern Oregon Land Company; that defendant should bear all the costs and expenses incurred in litigating the controversy with the Eastern Oregon Land Company, such expenses to be deducted from the $20,000 stipulated to be paid as the purchase price; and that no payment should be made until the litigation should be settled or adjusted in favor of defendant. The answer further states that defendant proceeded to defend the title to the lands and water rights; that in November, 1908, a suit was commenced by the Eastern Oregon Land Company in the United States District Court, which is still pending, and that defendant has already expended several thousand dollars defending the suit and will be required to expend other large sums for the same purpose, and that the present action has been prematurely brought.

On the same day plaintiff filed a reply, denying the new matter in defendant’s answer, and thereupon defendant moved for a continuance substantially upon the grounds: (1) Lack of time to prepare for trial; (2) absence of material witnesses; (3) inability to obtain certain vouchers of the company from the custody of the United States court in time to prepare earlier for trial; (4) that *606under a rule of the court plaintiff was not entitled to try the case at this term.

For appellant there was a brief over the names of Messrs. Richards & Haga and Messrs. Wheeler & Hurley, with an oral argument by Mr. Oliver O. Haga. For respondent there was a brief over the names of Mr. A. A. Smith, Mr. Morton D. Clifford, Mr. John L. Rand and Mr. William H. Packwood, Jr., with oral arguments by Mr. Smith and Mr. Clifford.

The affidavits set forth that defendant expected to prove by John B. Hart, one of the absent witnesses, that he was one of the attorneys for defendant in the suit between the Eastern Oregon Land Company and defendant; that in July, 1909, plaintiff told Mr. Hart that he (plaintiff) had no claim whatever against the Willow River Land & Irrigation Company if it did not win in its suit with the Eastern Oregon Land Company, but that if it was successful in that litigation then there should be deducted from the contract price the entire expenses of defendant in defending such suit and the balance only to be paid to him; that he did not consider that he had any claim against defendant until such litigation should be determined in favor of defendant, and then only for such balance; that defendant expected to prove by Edward B. O’Donnell that in the month of May, 1908, it was agreed between plaintiff and defendant that no claim whatever should be made by plaintiff against defendant until the claim of the Eastern Oregon Land Company against defendant should be finally settled, and that the entire cost of any such litigation should be deducted from the amount which was to be paid to plaintiff.

The court overruled the motion and called the case for trial. Both parties waived a jury, and there was a finding for plaintiff for the full amount of his claim; the defendant introducing no testimony. Defendant appeals.

Affirmed.

*607Mr. Justice McBride

delivered the opinion of the court.

6. The granting or refusing a motion for continuance is a matter addressed to the sound discretion of the court and will not be reviewed upon appeal unless it appears that such discretion has been abused. State v. Huffman, 39 Or. 48 (63 Pac. 1); State v. Finch, 54 Or. 482 (103 Pac. 505).

7. We are not prepared to say that the court abused its discretion in this case. The cause had been pending about four months, and defendant had all that time within which to have taken the depositions of the absent witnesses. Section 836, L. O. L. The affidavits show no ground for the belief expressed therein that the defendant will be able to prove the facts recited in the affidavits by the testimony of the witnesses. They do not show that the affiants have ever conversed with Hart or O’Donnell or received letters from them indicating that they will testify as stated, and they entirely fail to state any ground upon which affiants base their expectation that .the absent witnesses, if present, would testify as stated therein. It is not alleged that these witnesses have ever stated to anybody, either orally or in writing, that they will so testify, and the court is left to determine without evidence whether or not affiants’ belief as to 'what can be established by them is founded upon information or is a mere matter of conjecture or guesswork. There are many things indicating that the motion was a part of a systematic plan to delay the trial of the action. A dilatory motion had been filed, withdrawn, and another substituted, and finally a suit was begun by another corporation, holding a large block of the stock of defendant and being the holder of its bonds, but having the same attorneys as defendant, to enjoin the prosecution of this action. The circuit judge, whose opportunities to judge the situation accurately were better than ours, probably concluded that the continuance was not sought in the *608interests of justice, and we decline to interfere with his determination of the motion.

8. It is contended that the court erred in overruling defendant’s motion to make the complaint more definite and certain. It appears from the transcript that the court allowed the motion, in so far as it required plaintiff to state the names of the officers acting in behalf of the defendant in making the promises and agreements with respect to the escrow, and the promise on the part of the defendant company to pay the $20,000, but denied it in all other particulars. None of these appear to us to be vital, and the answer filed by defendant shows that it was sufficiently informed in regard to the claim of plaintiff to be able to meet intelligently every allegation of the complaint not only by denials but by an affirmative defense when necessary. The granting or refusing a motion to make definite and certain is largely a matter of discretion with the circuit court, and the appellant court should not interfere with the exercise of that discretion unless it is satisfied that it has been abused, and we are not so satisfied. Plaintiff’s evidence supports the allegations of his complaint, and, although the former president of the company, without whose knowledge the alleged contract with plaintiff could not have been made, was available as a witness for defendant, he was not called, and plaintiff’s evidence was not contradicted in any respect. We do not think any harmful error was committed in the admission of evidence and are satisfied that substantial justice has been done in the premises, and therefore refrain from a detailed discussion of the various objections urged by the able counsel for appellant.

The judgment is affirmed.

Affirmed : Rehearing Denied.