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ing the proposed improvement thus ascer- The decree of the court below was in favor tained, the recorder, on the 15th day of of plaintiffs, and the city appeals. March, 1892, in pursuance of the terms of an ordinance passed in 1891, entitled “An or

D'Arcy & Bingham and J. J. Shaw, for dinance to provide for notice to parties in

appellant. R. P. Boise and Timon Ford, relation to assessments for street improve

for respondents. ments," duly published, as in the said ordinance provided, the following notice: “No- BEAN, J., (after stating the facts.) The tice of assessment: Notice is hereby given only question necessary to consider on this that the common council of the city of Salem, appeal is one of jurisdiction and notice to inOregon, will at 8 o'clock p. m. of the 5th day terested parties; for if the city had power to of April, 1892, at the common council make the improvement, and in doing so vio chambers at Salem, Oregon, proceed to lated no express provision of its charter, and assess upon each lot or part thereof li- the abutting property owners had notice of, able therefor its proportionate share of and an opportunity for, a hearing upon the the cost of grading, graveling, and curbe question as to the proportionate share of the ing all that part of Chemeketa street cost of the proposed improvement to be asdescribed as follows, (here follows a partic- sessed against their property before the same ular description of that portion of the street became irrevocably fixed, a court of equity to be improved,) according to the plans and will not, after the work is completed, re specifications thereof, on file in the office of strain the enforcement of the assessment on the city surveyor of Salem, Oregon. Done account of irreguarities in the proceedings. by the city of Salem, Oregon, this 15th day The provisions of the charter of the defendof March, A. D. 1892. M. E. Goodell, Re- ant bearing on the question before us, in corder." At the time and place stated in force at the time of this improvement, are as the notice, the council convened for the pur- follows: "Sec. 46. The council is authorized pose indicated, but, a quorum not being pres- to improve or repair any street or part there ent, adjourned until the following day, when of whenever it deems it expedient, and to it proceeded to ascertain and determine, and declare by ordinance before doing the same did then and there determine, the proportion- whether the cost thereof, in whole or in part, ate share of the cost of making the proposed shall be assessed upon the adjacent property improvement, to be assessed upon each lot or be paid out of the general fund of the and part thereof liable therefor, by city. Sec. 47. If the council declares that a timating the same according to frontage, proposed improvement or repairs shall be at none of the plaintiffs appearing or making the cost, in whole or in part, of the adjacent any objections thereto. On the 3d day of property, the proposed improvement or reAlay, 1892, the council passed Ordinance No. pairs shall be made accordingly; but if it 242, for the improvement of the street, in declares that the cost thereof, in whole or in which it declared that it was expedient to part, shall be paid out of the general fund, grade, gravel, and curb the street, and do such repairs may be made as the ordinance all things required by the specifications, ex- may provide, and be paid for accordingly." cept that selected gravel was substituted for "Sec. 24. Whenever the council of the city screened gravel; that the proposed improve- of Salem deems it expedient to improve & ment should be made wholly at the expense street or part thereof, it may proceed to asof the abutting property, and be assessed certain and determine the probable cost of upon said property "in proportion to the making such improvement, and assess upon number of front feet abutting on the street;" each lot or part thereof liable therefor its and that the probable cost thereof was proportionate share of such costs.” “Sec. 38. $7,084. This ordinance also declares the Each lot or part thereof within the limits of proportionate share of the cost of making a street

* shall be liable for the cost, such improvement, assessed upon each lot or in whole or in part, as the council may deterpart thereof liable herefor, as previously mine, of making a proposed improvement ascertained and determined by the council, upon the balance of the half street in front." except that a reduction was made on ac- "Sec. 25. Whenever the probable costs of the count of the change in the specifications improvements have been ascertained and de from screened to selected gravel, and directs termined, and the proportionate share therethe recorder to enter a statement thereof in of of each lot or part thereof has been as the docket of city liens It also recites that sessed, as provided for in section 24, the Archie Mason is the lowest and best bidder council must declare the same by ordinance, for the work, and awards the contract to and direct the city recorder to enter a state him for $7,084. The improvement was com- ment thereof in the docket of the city liens pleted in pursuance of this ordinance, and as provided for in the next section." "Sec. accepted by the city. The validity of this 11. A sum of money assessed for the imassessment is challenged by the plaintiffs, provement of a street cannot be collected unwho are the owners of property abutting up- til, by order of the council, ten days' notice on this street, and who, being residents of thereof is given by the recorder by the pubSalem, had actual knowledge of said im- lication in a weekly or daily newspaper, pubprovement as the same was being made. lished in the city of Salem. Such notice must substantially contain the matters re- nance, as was done in this case, provide for quired to be entered in the docket of city notice to the property owner, and the rule is liens concerning such assessment. Sec. 12. that, if provision is made "for notice to and If, within five days from the final publica. hearing of each proprietor at some stage of tion of the notice prescribed in section 11, the proceedings upon the question of what the sum assessed upon any lot or part there. proportion of the tax shall be assessed upon of is not wholly paid to the city treasurer, his land, there is no taking of his property and a duplicate receipt therefor filed with without due process of law." McMillen v. the recorder, the council may thereafter or- Anderson, 95 U. S. 37; Davidson v. New Order a warrant for the collection of the same leans, 96 U. S. 97; Hagar v. Reclamation to be issued by the recorder, directed to the Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. Rep. city marshal or other person authorized to 663; Spencer v. Merchant, 125 U. S. 345, 8 collect taxes due the city." These provisions Sup. Ct. Rep. 921. Now, in this case notice of the charter contain a general grant of and an opportunity to be heard were given power to improve a street at the expense of to the plaintiffs in pursuance of an ordithe abutting property, and the mode of its nance of the city providing therefor, and pre exercise is not restricted, except as to the scribing its terms, before any assessment was manner of making the cost thereof a charge made or attempted to be made. They did upon the abutting property. The wisdom not see fit to avail themselves of the opporand expediency of the improvement, the tunity thus afforded, but now seek relief in a character and cost of the work, the manner court of equity, because, as they allege, the of letting the contract or doing the work, are assessment as made was unequal and unjust. all matters of legislative control, and vested This they cannot be allowed to do. Having by the charter in the discretion of the coun- had notice and an opportunity to be heard cil, and upon which the property owners they should have appeared before the counhave no constitutional or charter right to be cil and made their objection at the proper heard. Paulsen v. City of Portland, 13 Sup. time, and, not having done so, are now bound Ct. Rep. 750; Spencer v. Merchant, 100 N. Y. by the assessment. 585, 3 N. E. Rep. 682; Id., 125 U. S. 345, 8 It is next contended that the assessment Sup. Ct. Rep. 921. It is contended, how- in this case is void because made according ever, that the charter is unconstitutional, be- to frontage. Section 38 provides that each cause it makes no provision for notice at any lot or part thereof shall be liable in whole or stage of the proceedings to the property own- in part for the cost, as the council may deers. We do not understand that it is essen- termine, of making a proposed improvement tial to the validity of a city charter, granting upon the half street in front thereot; and power to improve a street, that it should section 24 provides that the council may ascontain a provision for notice to the proper- sess upon each lot or part thereof liable ty owners. It is enough if the power is therefor its proportionate share of said costs. granted in general terms; for, as was said It thus seems that the rule for estimating by Mr. Justice Brewer in the recent case of the cost of making the improvement in front Paulsen v. City of Portland, supra: “The of a lot or part thereof, and the proportioncity is a miniature state; the council is its ate share to be assessed thereon, is not prelegislature; the charter is its constitution; scribed by the charter, but is left to the and it is enough if in that the power is grant- judgment and discretion of the council. In ed in general terms, for, when granted, it such case an assessment by the front foot is must necessarily be exercised subject to all held valid and constitutional by numerous limitations imposed by constitutional provis authorities; and while it may be admitted sions, and the power to prescribe the mode that such a measure of apportionment seems of its exercise !s, except as restricted, subject arbitrary, and likely to operate inequitably to the legislative discretion of the council. in some cases, and liable to other objections Thus, in the case of Gilmore v. Hentig, 33 of more or less validity, yet, as Judge Cooley Kan. 156, 5 Pac. Rep. 781, it was held that says, “the question is a fairly debatable one where a statute authorizes a city to provide whether they are likely to be more serious or for the construction of sewers and drains, more frequent than those which are to be and to tax the costs thereof upon the adja- | anticipated from the selection of some other cent property owners, but does not require / rule." Cooley, Tax'n, 451. And this question that any notice shall be given to the proper- must be deemed settled by the legislative ty owners, held, that such failure to require judgment of the council where no mode is notice does not render the statute unconsti- prescribed by the charter. King v. City of tutional or void, but notice must nevertheless Portland, 2 Or. 146; Sheley v. City of De be given, and the city would have a broad troit, 45 Mich. 431, 8 N. W. Rep. 52; Norfolk discretion with reference to the kind of no- City v. Ellis, 26 Grat. 224; Davis v. City of tice and the manner of giving the same." Lynchburg, 84 Va. 861, 6 S. E. Rep. 230; See, also, Cleveland v. Tripp, 13 R. I. 50; Farrar v. City of St. Louis, 80 Mo. 379. But, Williams v. Detroit, 2 Mich. 560; Gatch v. whatever may have been the equitable or Des Moines, 63 Iowa, 718, 18 N. W. Rep. just mode of assessment under the charter, 310. Under a general grant of power to do the one actually adopted by the city, if unwork of this kind, the city may, by ordi. wise, was at most only an irregularity,

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which might have been corrected if brought the improvement which the citizens generally to the attention of the council by plaintiffs do not share. Unless, therefore, the proat the proper time; but, having neglected to ceedings under which the improvement was do this, we think they are now estopped made are so radically defective as to be frem objecting to the assessment as actually totally void, the property owner who stood made. They had notice of the intended by and received the benefit with apparent assessment, and an opportunity to be heard willingness will be estopped to assert the inbefore it was made; and, not having availed validity of such proceedings. “He cannot themselves of the opportunity thus given, enjoy the benefits, and escape the burden," they are chargeable with knowledge of the says Mitchell, O. J., “unless he interferes or method adopted by the city; and, having suf- gives notice before the benefit is received." fered the work to proceed to final completion Ross v. Stackhouse, 114 Ind. 200, 16 N. E. and acceptance without protest or objection, Rep. 501. Whatever plaintiffs' rights may and thus received the benefit of the improve- have been in the beginning, they have stood ment in the enhanced value of their property, by and acquiesced until the rights of others they are now estopped from contesting the have intervened, and they must now in validity of the assessment on the ground of equity be deemed to have made an effectual any irregularity in the proceedings. 2 Herm. election to waive any and all irregularities Estop. § 1221; Elliott, Roads & S. 420; in the proceedings under which such rights Kellogg v. Ely, 15 Ohio St. 64; People v. have been acquired. This, it seems to us, Utica, 65 Barb. 9; Darst v. Griffin, 31 Neb. disposes of the question as to the validity of 668, 48 N. W. Rep. 819; Lodor v. McGovern, the assessment; for, as soon as it is as48 N. J. Eq. 275, 22 Ail. Rep. 199; Taber v. certained that the council had jurisdiction Ferguson, 109 Ind. 227, 9 N. E. Rep. 723; to make the improvement, and the property Prezinger v. Harness, 114 Ind. 491, 16 N. E. owner an opportunity to be heard on the Rep. 495. In this case the council had juris- question of his assessment, the other objecdiction under the charter to make the im- tions are mere irregularities, which cannot provement at the expense of the abutting now be urged in a suit to restrain the tax, property, and the plaintiffs had notice and but which might and should have been raised were given an opportunity to be heard be by some proper proceeding before the work fore the assessment was made. This being was completed. so, it is now too late to take advantage of It is claimed, however, that the warrant any irregularity which may have occurred in under which plaintiff's' property was adverthe proceedings. “The weight of authority," tised for sale was prenaturely issued, be says Judge Elliott, “is very decidedly in fa- cause no order was ever made by the council vor of the rule that, where there is jurisdic- authorizing or directing the publication of tion, the property owner who sees the im- notice of the assessment, as required by sec provement made, and offers no objection un- tion 11 of the charter. The notice required til after the work has been done, cannot de by this section was evidently designed to feat the assessment upon the ground that give the property owner an opportunity to the proceedings have not been regular.” pay the assessment before any costs should Elliott, Roads & S. 419. If any irregularities be made thereon, and is therefore a condi. or informalities occurred in the proceedings tion precedent to the right to order a warof the council in directing the work, or by rant for the collection of the same to issue. including in Ordinance No. 242 matter that It is not alleged that the notice was not in should have been in a separate ordinance, or fact given; and it affirmatively appearing in changing the specifications from screened that an order was made by the council di. to selected gravel after the assessment was recting the warrant for the collection of the made, or in any other particular not affecting assessment to issue as required by section 12, the jurisdiction, it would be unjust and in- which could only be done after the publicaequitable, after the work has been completed tion required by section 11, it would of itself and accepted by the city, for a court of probably operate as a ratification, But, equity to restrain the collection of the as- however this may be, the answer denies the sessment. The plaintiffs, who are residents allegations of the complaint as to the want of Salem, and had actual knowledge that of an order by the council authorizing and dithe work was being done, have stood by and recting the notice to be published, and affirmseen the street improved for the benefit of atively alleges that the notice was given in their property without objection, and now all respects as required by the charter; and, ought not to be allowed to shift the burden as the case is here on a demurrer to the anof making the improvement from themselves swer, this allegation must be taken as true to the general taxpayers of the city. As. for the purpose of this opinion, and we must sessments for street and other similar im- therefore assume that the order authorizing provements are upheld upon the theory that the publication of the notice was in fact the property within the assessment district made. It follows from what has been said is benefited in a special and peculiar manner that the decree of the court below must be in a

sum equal to the amount assessed reversed, and this cause remanded for fur. against it, and that the owner has thus re ther proceedings not inconsistent with this ceived a peculiar and pecuniary benefit by 1 opinion.

tion of the subject of the suit. The de JOHNSTON v. WADSWORTH.

murrer was overruled, and the defendant (Supreme Court of Oregon. July 17, 1893.)

answered, denying the allegations of the SPECIFIC PERFORMANCE -ContraCT TO PURCHASE

complaint, and alleging that the procurement LAND-VENUE – WAIVER OF OBJECTION


of the land for the plaintiff constituted the UTE OF FRAUDS.

only contract that was made between them, 1. Specific performance will lie at the in. and that it had been fully executed. The stance of the vendor to enforce a contract for

cause being referred, the findings were for the the purchase of land where he alleges and makes tender of a deed therefor, since the de

plaintiff, which, after argument, were afcree will compel the acceptance of the deed as firmed by the court, and a decree was enwell as the payment of money.

tered specifically enforcing the contract, from 2. Under Hill's Ann. Code, § 388, provid

which decree the defendant has brought this ing that the court may change the place of trial, on the motion of either party, when it

appeal. The objection to the jurisdiction, appears froin the affidavit of such party that presented by the demurrer, is based on two the suit has not been commenced in the proper

grounds: First, that the plaintiff has a plain county, the objection that a suit for specific perforinance of a land contract was not com

and adequate remedy at law; and, second, menced in the county in which the land lay that the suit was not brought within the cannot be raised after the suit has been tried county in which the land is situated. Upon on its merits.

the first point the contention is that the 3. Where, as an inducement to plaintiff to purchase land through defendant, the latter

facts show that the only relief sought is a gives him a contract by which he agrees to money judgment, and hence that the plaintiff buy the land from him within a certain time is not entitled to the remedy of a specific if plaintiff so desire, such contract is not void for want of mutuality.

performance unless there were acts alleged 4. The presence of a seal is sufficient re

which the defendant is required to perform cital of consideration to satisfy the statute of other than the single payment of money. frauds.

"While it is true,” as was said by Mr. Appeal from circuit court, Multnomah Pomeroy, “that in these suits by the vendor county; L. B. Stearns, Judge.

there is generally some other act to be done Action by S. R. Johnston against Philip by the purchaser besides the simple payment O. Wadsworth. From a decree for plaintiff, of money, the performance of which may be defendant appeals. Affirmed.

enforced by the decree,” yet, he adds, “even

in those cases, when no such act has been Cake & Simon, for appellant W. Mc

undertaken by him in the contract, he may Camant, for respondent

be compelled to accept the deed or assignLORD, C. J. This is a suit in equity for

ment or other subject-matter, as well as the specific performance of a written con- to pay the price, so that the decree is not tract. The complaint alleges that the plain- purely one for the recovery of money.” Pom. tiff and defendant entered into an agree.

Spec. Perf. $ 6. In the case at bar the plainment whereby the defendant, in considera- tiff alleges, among other things, a tender to tion of the sums to be paid as alleged, agreed

the defendant of a deed for the land, and to procure title for plaintiff to certain school that he brings the same into court, and therelands belonging to the state, and at the same by tenders to defendant a transfer of all his time, and as a part of said agreement, ex

rights to such land. Upon this state of pressly stipulated that if the plaintiff should facts, the court would be authorized by its be dissatisfied with the land at any period

decree to compel the defendant to accept within six months from or after the date of the deed, as in fact it has done, as well as said agreement, and if plaintiff should so to pay the price of the land, so that the desire, the defendant would purchase said decree would not be purely one for the re lands from him at the rate of three dollars covery of money. The general rule that a per acre; that, in pursuance of such agree.

court of equity will take cognizance of conment, application was duly made for the pur- tracts sought to be enforced by the vendor, chase of the land described in the com- as well as those sought to be enforced by plaint, and plaintiff made the purchase rely

the vendee, is well settled, for Mr. Pomeroy ing upon defendant's agreement to purchase says: “Since the vendee may, by a suit in the land; that, upon examining such land, equity, compel the execution and delivery the plaintiff ascertained that the same was of the deed, the vendor may also, by a simof little or no value, and thereupon notified ilar suit, enforce the undertaking of the the defendant of his desire that he should vendee, although the substantial part of his repurchase the same in accordance with his relief is the recovery of money.” Pom. Spec. agreement, which the defendant failed and Perf. & 6. "As the vendor of land," says Mr. refused to do; that the plaintiff has made Waterman, "seeks only the payment of the due tender to the defendant of a transfer of purchase money, it might be contended that said land in compliance with his agreement, he had an adequate remedy at law, and etc. A demurrer to the complaint was inter- therefore could not sustain a bill for the posed by the defendant, on two grounds: specific performance of the contract;" but, First, that the complaint does not state facts he adds, “a moment's reflection will, howsufficient to constitute a cause of suit; and, ever, show that damages would not restore second, that the court did not have jurisdic- him to the situation he would be in if the contract were performed." Wat. Spec. Perf. well-settled rule that equity will not specif$ 15. Pecuniary damages for the breach of ically enforce a contract unless it is mutual the contract is not what the plaintiff asks in its obligations. But this rule is subject or is entitled to receive at the hands of a to certain well-established exceptions, to court of equity. He asks to receive the which it is claimed the contract sought to be price stipulated to be paid in lieu of the enforced belongs. The facts show that de land. While it is said that specific perform- fendant made an agreement with the plainance is not a matter of absolute right in a tiff, in consideration of the payment of a cerparty, but of sound discretion in the court, tain sum of money, a part of which was to yet the rule has come to be established, it be retained by the defendant, and a part a contract respecting real property is in thereof to be paid to the state of Oregon, writing, and is certain, fair in all its parts, whereby he promised to obtain title for the for an adequate consideration, and capable plaintiff to certain school lands belonging of being performed, it is as much a matter to the state of Oregon, and that, as a part of course for courts of equity to decree of said contract, the defendant made and de specific performance of it as it is for a court livered to the plaintiff his agreement, as folof law to give damages for the breach. 2 lows: "Portland, Oregon, February 19th, Beach, Eq. Jur. $ 636; Tied. Eq. Jur. $ 493. 1891. I hereby covenant and agree to pur

The second objection to the jurisdiction is cbase from S. R. Johnston six hundred and based on the fact that the lands which the forty (640) acres of land, three hundred and defendant contracted to purchase are situ- twenty (320) applied for from the state of ated in Jackson county, and the suit to en- Oregon by John Harriman, and transferred force the contract was brought in Multno- to him, and three hundred and twenty (820) mah county. It is claimed that under sec- applied for in his own name, at the expiration 387, Hill's Ann. Code, the circuit court | tion of six months from date, if he so of Multnomah county had no jurisdiction to desires, at the rate of three dollars ($3) enforce the specific performance of a con- per acre. [Signed] Philip C. Wadsworth. tract in relation to lands located in Jackson (Seal.] Witnesses: E. J. Young. John county. As a general rule, it is not neces- Harriman," and at the same time agreed sary in equity that the subject-matter of a that if the plaintiff should, within six suit should be corporeally within the juris. months after the date of the sale, be dissat. diction of the court, provided that the par- isfied with the lands sold to him by the de ties are in person within the jurisdiction, so fendant, he (the defendant) would purchase that they can be personally summoned to the same upon the terms set forth in the answer the complaint; hence the rule estab- agreement. The lands referred to and de lished that, where the court has jurisdic- scribed were applied for and purchased untion of the proper parties, it may compel der the agreement, and, in accordance with them to do equity in relation to lands lo the terms of such purchase from the state, cated without its jurisdiction in another the plaintiff delivered certain promissory county or state. Tied. Eq. Jur. $ 475. "A notes, etc., and made the purchase and ensuit for the specific performance of a con- tered into the agreement relying solely upon tract,” said Gray, C. J., “proceeds in perso- the representations of the defendant, and nam, and may be maintained in any court of upon his written promise to repurchase the equity which has jurisdiction of the parties, land as set out in the agreement. That plaineven if the land lies in another state or for- tiff, after examining such land, was dissat eign country.” Brown V. Desmond, 100 isfied therewith, and notified the defendant Mass. 269. See, also, Gardner v. Ogden, 22 of his desire that he should repurchase the N. Y. 327; Sutphen v. Fowler, 9 Paige, 281; same in accordance with the terms of his Massie v. Watts, 6 Cranch, 148; 3 Pom. Eq. agreement, and that the defendant then Jur. 8 1313. The relief sought by this suit promised in writing to so repurchase the is not to determine title, but to recover the land, and further promised to assume the price stipulated to be paid for the land. The promissory notes given to the state for a decree is in personam, and not in rem; and part of the purchase price. That the deit would seem, therefore, when the parties fendant did not comply with his agreement, are within its jurisdiction, a court of equity and has wholly failed and neglected to remay make its decree in personam for the purchase the land at the price named, or for specific performance of a contract for the any other sum, and that, prior to the comsale of land in another county, notwith- mencement of the suit, the plaintiff tenstanding section 387. But, however that dered to the defendant a conveyance of the may be, if the plaintiff brought his suit in property, and demanded that he repurchase the wrong county, the defendant waived the same, in compliance with his agreement, this objection under section 388 by not avail- and that he has failed and refused to carry ing himself of the right to a change of venue out the agreement; and, also, that the plainto the proper county. We think, therefore, tiff has tendered to the defendant the transthat it is too late to raise this objection after fer of said property, subject to the payment a suit has been tried on its merits.

of said promissory notes by the defendant, The next objection is that the contract is and that such tender was refused. These not mutual. This objection is based on the facts are based on the testimony of the

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