Friendly v. Elwert , 57 Or. 599 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1, 2. The contract here is unilateral. The plaintiff nowhere binds himself to perform unless the title should prove to be satisfactory, nor did he contract to forfeit anything in case of failure to perform. If his attorney should, even in the most capricious manner and without assigning any reason therefor, declare the title unsatisfactory, the defendant C. M. Elwert, after going to the trouble and expense of having an abstract prepared, would be compelled to return the $300 paid to her and be without remedy at law or in equity: Church v. Shanklin, 95 Cal. 626 (30 Pac. 789: 17 L. R. A. 207) ; Pollock v. Brookover, 60 W. Va. 75 (53 S. E. 795: 6 L. R. A. [N. S.] 403). It was a mere option to purchase, which could be converted into a valid contract of sale, binding upon both parties by an unqualified acceptance by the optionee, within the time prescribed in the agreement. We do not think the testimony discloses a bona fide unqualified acceptance.

3. Before an acceptance had been intimated by plaintiff in any way that would bind him, he was informed that the unrecorded deed, which formed an important link in the chain of title, had been lost, and we think that the evidence preponderates in favor of the claim of defendant that it was actually lost. Plaintiff’s acceptance was conditioned on the presence and availability of this lost deed, and his acceptance of the title as satisfactory was conditioned upon the assumption that C. M. Elwert had it in her possession, after he had been informed that it was not in her possession. The plaintiff testified that he never intended to perform his part of the agreement unless the defendant cleared up the title, either by getting a new deed or by some proceeding in the courts. It is very evident that the title, in the condition that it then was, was not satisfactory to plaintiff, and in such case his remedy was provided in the agreement itself, namely, the return of the purchase money. Am. & Eng. Enc. Law (2 ed.) 87, 88; Long v. Miller, 46 Minn. 13 (48 N. W. 409) ; Barker v. Critzer, 35 Kan. 459 (11 Pac. 382).

4. All the relief that the court could possibly have given against C. M. Elwert would have been to compel her to make a deed to the premises, and this she had already tendered before her sale to Wade, and the same was refused by plaintiff. Plaintiff cannot come into court, after refusing the only conveyance defendant could make, and compel her to do the very thing which she had previously offered to do, and which plaintiff had refused to allow her to do: Johnson v. Fuller, 55 Minn. 269 (56 N. W. 813) ; Allen v. Treat, 48 Wash. 552 (94 Pac. 102) ; Weir Investment Go. v. Scattergood, 42 Colo. 54 (94 Pac. 19).

This view of the case renders unnecessary a consideration of the other questions so ably presented by the respective counsel. The decree of the court below will be reversed. Reversed.