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plaintiff, which is encontradicted. At the plaintiff exercised the option within the time time of the sale the plaintiff was engaged specified, the minds of the parties met, and in the business of school teaching at Port- the contract became mutual, and enforceable land, and was unable to examine the lands, by either party. We think, therefore, the owing to their location in a distant part of contract, as thus made, the other conditions the state, and, being unwilling to buy them existing, is a proper subject of specific perwithout seeing the same, the defendant, to formance. induce him to make the purchase, made the The last contention is that the agreement agreement in writing set out. At the ex- sought to be enforced is void, because it does piration of the school term, the plaintiff ex- not state the consideration. The statute proamined the lands, and found them utterly vides that an agreement for the sale of land unfit for the purpose for which they had is void unless the same, or some memoranbeen purchased. The defendant introduced dum thereof expressing the consideration, be no testimony, and relies solely upon technic- in writing, and subscribed by the party to be al suggestions to defeat the enforcement of charged, etc. Section 785, Hill's Ann. Code. the agreement

Under statutes of this character, it has been One of the questions presented is whether held that if, from the terms of the writthe agreement set out is wanting in mutual- ing, the consideration for the promise is inity. The decided cases show that the rule ferable, it is expressed in such agreement, as to mutuality is greatly circumscribed by within the meaning of the statute; and, numerous limitations, and that a conditional while we think the consideration is apparent or unilateral contract may come within these from a reasonable construction of the terms exceptions. 2 Beach, Eq. Jur. § 586; Wat. of the contract, yet, the agreement being unSpec. Perf. 200. The principle is well set- der seal, the seal is itself the expression of tled that where an owner of land gives an- a consideration sufficient to satisfy the statother, for a sufficient consideration, an option ute. There are numerous authorities which or privilege for the purchase of land within show that it has been repeatedly held that å given time, in writing, with a full knowl- words "for value received" sufficiently comedge of the fact that he is bound, and the ply with statutes like ours, which require the other party is not, it is such a contract as will consideration to be expressed. Day V. Elbe enforced in equity at the instance of the more, 4 Wis. 214; Watson v. McLaren, 19 party holding the option. As Mr. Justice Wend. 557; Miller v. Cook, 23 N. Y. 495; OsNewman asks: "Does such a contract, in- borne v. Baker, 34 Minn. 307, 25 N. W. Rep. deed, lack mutuality? The seller, for a fair 606; Brooks v. Morgan, 1 Har. (Del.) 123; consideration, agrees to give the proposed Whitney V. Stearns, 16 Me. 394. The text purchaser a certain fixed time in which to writers also generally state the law to be make the contract mutual by acceptance of that the words "for value received" sufii. the offer to sell. If he accepts within the ciently express the consideration. 1 Reed, specified time, both parties are fully bound." St. Frauds, $ 430; Brown, St. Frauds, 8 Johnston v. Trippe, 33 Fed. Rep. 536. In 408a; Daniel, Neg. Inst. § 1767; 3 Pars. Hall y. Center, 40 Cal. 67, the court says: Cont. 16; Brandt, Sur. § 70. It is the law, "If the owner of an estate has fairly made a too, that the seal is a sufficient expression of contract for a sufficient consideration re- the consideration. Reed, St. Frauds, § 431. ceived by him, by which contract he has “We have held again and again," said Cowan, himself stipulated that another person may, J., “that a seal expresses a consideration, withat the option of the latter, receive a convey- in the meaning of the statute." Douglass v. ance of the estate upon the payment or ten- Howland, 24 Wend. 45. If the memorander of a fixed sum within a given time, what dum is under seal, the implication of considprinciple of equity is violated by making the eration therefrom is sufficient. Brown, St. owner comply with his contract? If the oth- Frauds, $ 408a. Woodruff, J., said: “An iner party has obtained the option, he has strument under seal is held not void under fairly bought it and paid for it, and there is the statute, although no consideration is in no principle or policy of law violated in its terms stated therein, upon the ground that purchase.” See, also, Hawralty v. Warren, the seal imports consideration. It is suffi18 N. J. Eq. 124; Clason v. Bailey, 14 Johns. cient if, upon the face of the instrument, 484; Schroeder v. Gemeinder, 10 Nev. 355; consideration is a necessary legal implicaPom. Spec. Perf. § 169. In the case at bar tion." McKensie v. Farrell, 4 Bosw. 207. the defendant sold the land to the plaintiff, The object of the statute of frauds was to and, to protect him in case of dissatisfaction prevent the facility to fraud and perjury to therewith, he gave him the option to disaffirm which contracts dependent upon the memory the contract, if he so desired, in which event of witnesses were exposed by requiring them the defendant agreed to repurchase it. Aft- to be reduced to writing. When this is done, er the plaintiff notified the defendant that there does not seem to be any reason why he was dissatisfied, and expressed the desire the consideration might not be proved by that he should repurchase the land, in ac- parol, as in the case of any other contract, cordance with the terms of the agreement, or, if there is any reason for expressing the the offer of the defendant to purchase was consideration, the true one ought to be exaccepted by the plaintiff; so that, when the pressed; yet the authorities cited show that

the words "for value received" or that a seal itself sufficiently expresses the consideration. The fact is, as Mitchell, J., said, "that the expression of the consideration is so unnecessary in order to prevent the mischief aimed at that the courts have always been inclined to give this provision of the statute a very liberal construction, which sometimes, as in the instances cited, reduces it to a mere forpality.” Oslorne v. Baker, supra. In view, therefore, of the authorities, we think the seal sufficiently expresses the consideration, within the meaning of the statute. The decree is affirmed.


et al. (Supreme Court of Oregon. July 17, 1893.) PLEADING - ESTOPPEL – INSURANCE Police


1. An estoppel of an insurance company to claim a breach of the conditions of a policy of fire insurance by nonoccupancy of the premises, after having issued the policy with knowledge of such nonoccupancy, must be specially pleaded.

2. On an issue as to whether an insurance company waived proof of loss by decliving to pay a policy, the insured testified that the general agent and the adjuster of the company both told him that the loss would not be paid, which statement these officers denied. It appea red that the insured, to secure Insurance on another building near the house covered by the policy in suit, and burned at the same time, testified that he was occupying such building at the time of the fire, while he afterwards swore that at that time, and for six weeks previous, he had occupied the house covered by the policy. Held, that a finding by the referee that the company did not decline to pay the policy was justified.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Action by W. S. Bruce against the German Savings & Loan Society and the Phoenix Insurance Company. From a decree for de fendants, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by MOORE, J.:

This is a suit brought by the plaintiff against the German Savings & Loan Society and the Phoenix Insurance Company to recover from the latter $1,800, the amount claimed to be due on an insurance policy, on account of a loss by fire. The facts show that on May 31, 1890, plaintiff was the owner of certain real property in Portland Homestead, Multnomah county, upon which was a two-story frame building, of the value of about $2,600, and on that day he executed and delivered to the German Savings & Loan Society a mortgage upon said real property to secure the sum of $1,000, payable in three years from that date, in which mortgage le covenanted to keep said building insured for $1,800 against loss by fire in some reputable insurance company, the loss, if any, to be made payable to said mortgagee; that on June 2, 1890, he made application to one J.

A. Arment, a local agent of the Phoenix Insurance Company, for an insurance upon said building in the sum of $1,800, for the term of three years, while occupied as & family dwelling, and paid $27 as a premium thereon, and thereupon the company executed and delivered to him policy No. 3,538, as applied for by him, which he delivered to said German Savings & Loan Society as collateral security for its loan, and to be held by it as trustee for the plaintiff, after the payment of the said mortgage debt; that on July 4, 1891, said building was totally destroyed by fire, and the plaintiff, on or about the 7th of that month, notified the agent of the insurance company thereof, but, the company failing to pay said loss, the plaintiff requested the German Savings & Loan Society to bring an action against the said insurance company upon said policy, which it refused to do, thus compelling him to bring a suit in equity to protect his rights. The conditions of the policy issued to plaintiff, and relied upon by the insurance company to defeat the recovery, are as follows: “This entire policy, unless otherwise provided by agreement indorsed thereon or added hereto, shall be void if

a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days." The policy also provides, among other things, that, "if fire occur, the insured shall give immediate notice of any loss thereby, in writ. ing, to the general agent at San Francisco;

and within sixty days after the fire, unless such time shall be extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and all others in the property; the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon;

any changes in the title, use, occupation, location, possession, or exposure of said property since the issuing of this policy; by whom and for what purpose the building herein described, and the several parts thereof, were occupied at the time of the fire," etc. The policy further provided that “no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, unless commenced within twelve months next after the fire.” Reference is also made in the policy to the application and survey of the insured. The plaintiff alleged that he had duly performed all the conditions of said policy on his part to be performed. The insurance company, after denying the material allegations of the complaint, set up three separate defenses: (1) That plaintiff caused to be constructed a frame building with shingle roof at a distance of 35 feet from the in


sured building, when at the time the policy than 10 days prior thereto, without the was written the space was 100 feet to the knowledge or consent of the insurance comnearest building, thereby increasing the haz- pany. The reply denies this separate de ard, without notifying the company; (2) the sense, and the issue is thus clearly made building insured became vacant and unoccu- by the pleadings upon this question. The pied, and so remained for more than 10 days; | proof conclusively shows that at the time of and (3) the insured furnished no proof of the fire the house was unoccupied, and that loss, as required by the policy, and that such It had not been occupied for about six weeks proof was not waived by the insurance com- prior thereto, and that the company had no pany. After the issues were completed, the knowledge thereof. The plaintiff contends, cause was referred to Mark O'Neill to take however, that, at the time he applied for inhis testimony, and report his findings of fact surance, J. A. Arment, the agent of the insurand conclusions of law thereon, and, after ance company, visited the house in question, some testimony had been taken, the plain- and knew that the building was unoccupied, titr, by leave of the court, filed an amended and that, having accepted the risk with complaint, in which he alleged that he knowledge thereof, the company is estopped offered to furnish the insurance company from disclaiming a waiver of the policy on with due proof of loss, but that it, by its that account; that such knowledge on the duly-authorized agent, waived the condition part of the agent is notice to the company; of said policy by which it was required to and that the act of issuing the policy constifurnish proof of loss to said defendant, and tutes an estoppel in pais, which can be esrelieved and discharged the plaintiff from the tablished by evidence without any allegation performance thereof by stating to him that in the pleading to support it. It is well the said insurance company would not pay settled at common law that an estoppel said loss. After the testimony had been in pais need not be pleaded, (Big. Estop. taken, the referee reported, as his findings of 699,) but the contrary has been held in this fact, that said building was and had been state. In Rugh v. Ottenheimer, 6 Or. 231, unoccupled for more than 10 days prior to it was held, in a case in which the legal title the fire, without the knowledge or consent to real property of the wife was held by her of the insurance company or its agents, and husband, that she was not estopped to claim that the insured failed and neglected to make the title against the husband's creditors, proof of loss within 60 days after said build- who had furnished goods upon the faith of ing was destroyed by fire, and that sald in- his ownership of the land, without alleging surance company had not extended the time

the facts constituting the estoppel. Boise, J., in writing to said insured to make such proof said: “If she had been guilty of fraud which of loss; but he made no findings upon the would estop her, then the same should be question of the hazard caused by the con

pleaded to make it allowable, which is not struction of said frame building at a distance done, and the matter of estoppel cannot be of 35 feet from the building covered by the considered in this case. So, in Remillard v. policy in question, and, as a conclusion of Prescott, 8 Or. 37, it was held that where law, found that the insurance company the defendant had, without objection, pershould recover from the plaintiff its costs mitted the plaintiff to make improvements and disbursements. The court approved the and pay the taxes upon defendant's land, report of the referee, and a decree was ren. the latter was not estopped from claiming dered dismissing the suit, from which the the legal title, and that it could not be conplaintiff appeals.

troverted without alleging the estoppel. The

same learned justice said: “The appellants George A. Brodie, for appellant. R. Mal

claim title by estoppel, and, if they intended lory, for respondents.

to rely on such title, they should have plead

ed it in the complaint, as they had an opMOORE, J., (after stating the facts.) The portunity to do so. They made their case on appeal presents the following questions: the complaint, wherein they relied on the Was the hazard increased by the construction fact that Craig had purchased the property of another building after the policy was from Chapinan, and that, by mistake or the issued? Was the house unoccupied at the procurement of Prescott, the deed was made time of the fire, and had it been so unoccu- to Prescott and Craig. We think, therefore, pied for more than 10 days prior thereto? that the matter of estoppel as sustaining the And was the proof of loss waived by the in- claim of the appellant as prayed for cannot surance company?

be considered in this case." These cases We do not deem it necessary to examine have settled the rule in this state that an the first question, as we think the solution of estoppel in pais must be pleaded, and we the other two decisive of the case. The plain- see no reason for changing it. The plaintiff tiff alleges that he duly kept and performed relied upon the issue he made in his comall the conditions of the policy to be per- plaint, and not upon the estoppel, and, havformed by him. The answer denies this, ing elected his cause of suit, he should be and, for a separate defense, alleges that at bound thereby. the time of the fire the house was unoccupied, 2. The original complaint, in substance, and that it had been so unoccupied for more alleges that on July 7, 1891, plaintiff noti

fied the company of his loss, and thereafter he is contradicted by his neighbors, who tes furnished said insurance company with due tified that he neither occupied nor slept there proof thereof, while the amended complaint in, but that he occupied and slept in the new admits that no proofs were ever made. The house, upon which he received his insurance evidence fails to show that plaintiff offered, from another company. Considering these or that the company rejected, any proof of facts and circumstances, we think the retloss, as alleged in the amended complaint, eree and court were fully warranted in the or that the company, by its agent, ever told conclusions reached, and that the preponderthe plaintiff the loss would not be paid, there ance of the evidence upon this question is by relieving him from the necessity of making with the defendant company, and that the the required proof. The plaintiff testified agents of the company never told the plainthat, about five days after the fire, he called tiff that his claim would not be paid as upon J. D. Coleman, the agent and adjuster alleged in the complaint. The policy of inof the insurance company, who told him the surance is the contract between the insurer loss would be paid; that, about five or sis and the insured, upon which the latter must days after the first visit, he again called upon rely for the recovery of bis loss. In the case Mr. Coleman, who then told him the company at bar, the application 18 for an insurance would not pay. He also testified that he of the building while occupied as a family saw A. F. Gartner, the general agent of the dwelling, and this application is referred to company, who told him at first that they in the policy as the foundation upon which would see about the loss, and at another it must rest, and it thereby becomes a wartime that the company would not pay it. ranty of the insured that the building will Mr. Coleman testified that the first time he be occupied in that manner. 1 Wood, Ins. saw the plaintiff after the fire was between $ 156. The policy provides that, if the buildthe 15th and 20th of July, and that he never ing shall be or become vacant for 10 days at that or any time told him the loss would without the consent of the company, the pol. not be paid. Mr. Gartner testified that plain- icy shall become void. In Insurance Co. v. tiff called upon him, and wanted to know Mehlman, 48 ni. 313, the policy provided when the company was going to pay him, that it should be vitiated by keeping and that he told him the loss was payable saltpeter, • and, upon proof that the to the German Savings & Loan Society, and insured kept a keg of saltpeter for sale, it that, if any money was paid on the policy, was held that “whether saltpeter will exit must be paid to that society. Upon this plode or not may be a vexed question, and contradictory evidence, the referee found that whether dangerous or not is immaterial. The the company had not waived the condition of agreement was that the assured should not the policy which required proof of loss with- keep it, and, if he did, the policy should be in 60 days from the time of the fire by in- vitiated, and he must be held to the agreeforming the plaintiff that the loss would not ment." The agreement entered into was that be paid. It is impossible for the appel- the building should be occupied, and that, late court, in the examination of a record, if it became vacant for 10 days, the policy to determine the preponderance of evidence should be void, and the insured must be with that degree of certainty attainable by held to this agreement, which was a part a court or referee who saw the witnesses, of his warranty. Proof of loss, as provided heard them testify, and noted their manner in the terms of the policy, is a condition and appearance while on the witness stand; precedent to recovery, (2 Wood, Ins. 438;) and the findings made under such circum- and, since the plaintiff did not make it withstances will rarely be disturbed when there in the time prescribed, he waived his claim are other facts and circumstances which tend thereto, and for these reasons the decree to weaken the testimony of the defeated is affirmed. party, or corroborate the conclusions reached. There are several facts and circumstances which tend to impair the testimony of the plaintiff. In order to secure the insurance


CHURCH v. WOOD. upon the new building, which it is claimed increased the hazard to the building in ques- (Supreme Court of Oregon. July 17, 1893.) tion, and which was burned at the same time, SPECIFIC PERFORMANCE-CONTRACT TO FURNISH he averred in the affidavit made in proof BUILDING STONE-INCIDENTAL RELIEF. of his loss that at the time of the fire he

Defendant agreed to furnish the neces was occupying the new house, and, upon this

sary stone for a church building to be erected

by plaintiff, and to perform the masonry work, proof, secured his insurance. Soon after, but after doing two-thirds of the work, and be he made another affidavit, in which he swore ing paid a much larger proportion of the stipthat prior to and at the time of the fire ulated price, became insolvent, and was unable the house covered by the policy in question

to perform his contract. The stone required

was of a peculiar kind and color, and could be was and had been occupied for about six procured only from defendant's quarry, and to weeks, while at the trial of this cause he use other stone to complete the building would testified that he occupied the house in ques defendant should be compelled to furnish the

destroy its beauty and harmony. Hold, that tion, and had slept therein nearly every stone necessary to complete the building, and to night for six weeks prior to the fire. In this | permit plaintiff to enter on his premises to pro

eure such stone, and to use his derricks at the quarry and the church building in quarrying, transporting, and raising the stone.

Appeal from circuit court, Multnomah county; L. B. Stearns, Judge.

Specific performance by the rector, wardens, and vestrymen of St. David's Church against Frank Wood and another. From a decree for plaintiff, defendant Wood appeals. Affirmed.

The other facts fully appear in the following statement by MOORE, J.:

This is a sult to enforce the specific performance of a written contract under seal. The facts show that the plaintiff is the owner of certain real property in Portland, Or., upon which it is desired to ereot a church building; that the defendant Frank Wood is the owner of a stone quarry in Benton county, Or., and that on May 16, 1892, the parties entered into said contract whereby the defendant agreed to furnish the necessary stone from his quarry, to dress, transport, cut, and lay the same in the walls of said building, furnish other necessary material, perform the mason work, and complete the same within 100 working days from June 5, 1892, for the sum of $16,500, payable from time to time as the work progressed, with the express agreement that plaintiff might withhold 25 per cent. of the amount found due upon the certificate of the architect until 30 days after the full completion of the contract, and, to secure the faithful performance of the conditions thereof, he executed and delivered to plaintiff a bond in the sum of $4,000. Plaintiff alleges that it duly performed all the conditions of said contract, paid defendant more than $16,200 thereon, although not more than two-thirds of the stone work has been done; that the defendant has ceased to work there on; that the stone from said quarry is of a peculiar color and quality, and that plaintiff is unable to complete said church in a suitable manner with stone from any other known source; that, after the construction of said church was commenced, the defendant executed a mortgage on said quarry to secure a pre-existing debt of $3,000; that there are other outstanding claims against the defendant on account of said church building; that liens have been filed thereon, and that defendant is insolvent; that unless the defendant is required to furnish the stone necessary to complete said building, or I plaintiff is compelled to purchase the same, it will require then an expenditure of from $6,000 to $11,000 more than the amount of said bond; that plaintiff has paid the cost of quarrying, transporting, and dressing a quantity of stone from said quarry, which defendant is seeking to remove without plaintiff's consent, and that he is also endeavoring to sell and convey said quarry, and refuses to perform his said contract; that the defendant Virgil E. Watters is the recorder of eonveyances of Benton

county, and custodian of the records there of, and that if any mortgage or other conveyance of said quarry or of the stone there in, or that was taken therefrom for plaintiff's use, be made by the defendant, and re corded in said county, it would cause irreparable damage to the plaintiff, for which it would have no adequate remedy at law. The plaintiff prayed that said contract might be specifically performed, and the defendant ordered to furnish the stone and mason work, as therein required, or that, if he could not perform the contract, he be compelled to furnish the plaintiff the necessary stone from said quarry for the completion of said building free of charge, and that he be restrained from incumbering, conveying, or interfering with the premises on which the quarry is situated, or with any stone therein or taken therefrom for plaintiff's use, and that the recorder of convey. ances be enjoined from receiving, filing, or recording any mortgage, deed, or other conveyance of the said premises, and for general relief. A temporary injunction was issued as prayed for in the complaint. The defendant Virgil E. Watters made default, but the defendant Frank Wood demurred to the complaint, alleging as ground there of that the court had no jurisdiction to compel the performance of the contract to build, or the required manual service, or to compel the defendant to furnish the stone free of charge. That there is a defect of parties, in this: that one Virgil E. Watters, a mere ministerial officer, who has no interest in the subject-matter of the suit, and who is not shown to have done or threatened to do any act tending to render any decree ineffectual, is joined as a defendant. That two causes of suit are improperly joined, viz. to compel a specific peformance, and to convert the defendant Wood into a trustee of his own property for plaintiff's benefit. And that said complaint does not state facts sufficient to constitute a cause of suit. The court overruled this demurrer, and, the defendant Frank Wood refusing to answer further or plead, it was decreed that the said written contract be specifically performed or enforced to the extent that said Frank Wood be required to furnish the stone from his quarry necessary to fully carry out and complete said contract, and that the plaintiff, by its officers, agents, and employes, be authorized and permitted to enter upon the premises of defendant Frank Wood, and quarry, in such manner as is or may be usual or customary, the stone necessary to fully complete said church building, and to remove a sufficient quantity there of from said quarry for that purpose; that plaintiff be permitted to use the defendant Wood's derricks at the quarry and at the church building in quarrying, transporting, and raising said stone until the further order of the court,-from which decree the defendant Wood appeals.

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