Bogard v. Kennedy ( 1914 )

Mr. Justice Eakin

delivered the opinion of the court.

The contract seems to assume that the Hunt Brothers’ farm had already been purchased and the title taken in the name of J. B. Kennedy. It provides the manner of the division of the proceeds of sales thereof in the following manner, namely: (1) To Ackley, his commissions; (2) to J. B. Kennedy $7,530; (3) to Z. T. Bogard, all sums in excess of the above-mentioned amounts up to $6,000; and (4) the balance if any to T. N. Kennedy. The contract does not specify the amount for -which the land is to be sold, naming only the lowest price per acre and the highest. It specifies that Bogard agrees to accept this contract in full satisfaction of the note and mortgage of T. N. Kennedy to him, so that when the contract was signed, the debt of T. N. Kennedy was paid, and the mortgage should have been forthwith canceled. By the contract Bogard was to take the chance of the Hunt land bringing money enough to pay J. B. Kennedy the money he advanced and sufficient over to pay him the $6,000. He says in his evidence that he thought he would get back part of the debt T. N. Kennedy owed him. The contract is not ambiguous, and needs no construction.

Plaintiff further contends that defendant J. B. Kennedy should account to him for the land at some value greater than what was actually received by him, hut there is no charge in the complaint that the sales were made in fraud of the agreement or for less than $100 per acre — only that defendant had sold and collected thereon to the amount of the $10,000, and asking for an accounting- — so that all plaintiff can claim now is an accounting for the proceeds of sales actually made. Messrs. Carson & Brown wrote to plaintiff on the 20th day of June, 1911, calling attention to the fact that the land could not be sold at the price advertised, as the market had gone down, and asking plaintiff for suggestions, or to furnish a buyer who would pay a better price than was available to defendant. The evidence shows that the tracts could not be sold at the prices placed on them because there was no demand therefor. Plaintiff did not reply to the above-mentioned letter. The condition of the account is as follows : Amount received as the proceeds from sales of the tracts, $8,862, which includes deferred payments on sales and contracts made to J. B. Kennedy. From this must be deducted under the contract Ackley’s commissions, $886. The amount due J. B. Kennedy by the contract is $7,530. In this statement J. B. Kennedy is given credit for the amount of the mortgage upon the Hunt Brothers’ land, which he assumed, although about $1,500 thereof has not yet been paid, being included in the $7,530 credited to J. B. Kennedy. Thus J. B. Kennedy has on hand, over and above what is due him and Ackley, $446 and 13 acres of the tract yet unsold.

Therefore the decree of the trial court will be modified, and a decree entered here requiring plaintiff, within 30 days, to cancel and release the mortgage on the land in Tillamook County, executed by J. N. Kennedy and wife to the plaintiff on the 25th day of September, 1907, covering the south half of the northeast quarter of section 8, township 3 north, range 10 west, Willamette meridian; and, in case plaintiff neglects so to do within the said 30 days, the decree in this case shall operate as and stand for a release and satisfaction of said mortgage; that plaintiff have judgment against the defendant J. B. Kennedy in the sum of $446, now due on this accounting, without prejudice to such suit or action as may hereafter he found necessary in this transaction. Neither party shall recover costs. Modified.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.