Mattson v. Dresser

Oregon Supreme Court
Mattson v. Dresser, 80 Or. 47 (Or. 1916)
155 P. 1186; 1916 Ore. LEXIS 17
Bean, Burnett, Harris, Moore

Mattson v. Dresser

Opinion of the Court

Mr. Justice Harris

delivered the opinion of the court.

1. It is conceded by the litigants that no interest became due on any installment until the maturity of such installment. The complaint, in effect, states that the purchase price was $7,000; that $2,000 was paid when the contract was signed; that the balance was payable on or before definite dates in four installments; that the first two installments had been paid, but that the third was due and unpaid, although interest on this as well as on the last installment had been paid up to February 9, 1913; and the plaintiffs claim that they are entitled to a foreclosure of the contract because the third installment, amounting to $300, and maturing on November 1, 1913, was due and unpaid. The answer, in substance, denies that any installment is overdue. The defendants aver that only the first three installments, amounting, principal and interest, to the sum of $695, have matured under the terms of the contract, and that the plaintiffs have been paid $1,065.50. The reply says that after the making of the contract the plaintiffs received $1,006.64, which was applied, as directed by the persons making the payments, on: (1) *52■The first installment; (2) the second installment.; and (.3) interest on the third and fourth installments. The complaint avers that the third installment is unpaid. The answer says that the first three installments amount, principal and interest, to $695; that plaintiffs have received $1,065.50; and that therefore the third installment has been paid. The reply confesses that more than $695 has been paid, but avoids the conclusion of the answer by claiming that $1,006.64 was paid and applied by the plaintiffs at the request of the defendants on the first two installments, and then in payment of interest on the third and fourth installments, with the result that the principal of the third installment has not been paid. The complaint says that the third installment is unpaid; the answer avers payment ; the reply denies payment and reiterates the allegation of nonpayment; and therefore the pleadings present an issue for the court to try. Whether a default has occurred can only be ascertained after hearing the evidence.

2. If it is determined that the plaintiffs are entitled to a foreclosure, the court will have a right to fix a reasonable time for the payment of the balance of the purchase price, and, no doubt, the circumstance that plaintiffs have received more than defendants were obliged to pay will, as it should, exercise a persuasive influence in deciding what is a reasonable time for payment within the principle announced in Flanagan Estate v. Great Cent. Land Co., 45 Or. 335 (77 Pac. 485). The decree and judgment are reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Burnett concur.

Reference

Full Case Name
MATTSON v. DRESSER
Status
Published