U.S. Nat. Bank of Oregon v. Miller

• Decision Date: 17 July 1985
• Citation: 74 Or.App. 405,703 P.2d 246
• Parties: UNITED STATES NATIONAL BANK OF OREGON, A National Banking Association, as Personal Representative of the Estate of Hazel P. Lipe, Deceased, Appellant, v. Michael H. MILLER and Mary C. Miller, Respondents. A8209-05854; CA A31717.
• Court: Oregon Court of Appeals

Page 246

703 P.2d 246

74 Or.App. 405

UNITED STATES NATIONAL BANK OF OREGON, A National Banking Association, as Personal Representative of the Estate of Hazel P. Lipe, Deceased, Appellant, v. Michael H. MILLER and Mary C. Miller, Respondents.

A8209-05854; CA A31717.

Court of Appeals of Oregon.

Argued and Submitted Feb. 25, 1985.

Decided July 17, 1985.

Brad Littlefield, Portland, argued the cause for appellant. With him on briefs was Goldsmith, Siegel, Engel & Littlefield, Portland.

John Folawn, Portland, argued the cause for respondents. With him on brief was Holmes, DeFrancq & Schulte, P.C., Portland.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Plaintiff, the personal representative of the estate of Hazel Lipe, brought an action for money had and received against defendants who, are husband and wife. The trial court granted defendants' motion for summary judgment. We reverse and remand.

We draw the facts from the affidavits and depositions in the record. Mrs. Lipe died in December, 1981, at the age of 94. Mrs. Miller had met her in February, 1975. At that time, Mrs. Miller worked for a travel company, and it was recommended that she contact Mrs. Lipe, because she might know of many people in her apartment building who would be interested in the company's services. The two women became close friends. Mrs. Miller regularly attended social gatherings at Mrs. Lipe's apartment building on behalf of the travel company. She often assisted Mrs. Lipe with her grocery shopping. Mrs. Lipe also visited the Miller home on a few occasions. They once took a Hawaiian vacation together, and they periodically exchanged gifts.

Mrs. Lipe and her daughter, Mrs. Burpee, each owned a one-half interest in a piece of property in Beaverton, which they decided to sell. Mrs. Burpee was interested in buying a new home, and she intended to apply her share of the proceeds toward that purchase. A sale of the property to a potential buyer for $94,000 failed, so Mrs. Lipe and Mrs. Burpee listed the property for sale for $100,000.

In January, 1980, Mrs. Lipe contacted the Millers and inquired whether they were interested in buying the property. They eventually agreed to buy it for $94,000. Mr. Miller prepared an earnest money agreement, setting a closing date of February 29, 1980, and it was signed by the Millers, Mrs. Lipe, and Mrs. Burpee. The Millers paid $1,000 as earnest money. At some point, Mrs. Burpee and Mrs. Lipe entered into an agreement whereby Mrs. Burpee would convey her interest in the property to Mrs. Lipe, who would then convey the property to the Millers.

When Mr. Miller signed the earnest money agreement, he believed the property was worth $94,000. He changed that opinion, however, when a realtor told him that it was worth only approximately $50,000. The Millers then met with Mrs. Lipe at her apartment and told her that, in the light of that information, they could not go through with the purchase. According to the Millers, Mrs. Lipe said that she was interested only in raising enough money to allow Mrs. Burpee to purchase her new home and that she would sell the property to the Millers for that amount. They agreed on a sale price of $47,000. Mr. Miller claims that Mrs. Lipe told the Millers not to tell Mrs Burpee about their new agreement. The Millers do not recall the exact date of that meeting, but Mr. Miller thought it took place in approximately the second week in February.

Mrs. Burpee's husband asserted that on February 13, Mr. Miller told him that they would not be able to meet the February 29 closing date specified in the earnest money agreement and that Mrs. Lipe would pay Mrs. Burpee $47,000 for her interest and would then collect from the Millers on an installment contract as soon as the Millers had arranged the financing. It is not clear whether this discussion occurred before or after the meeting between Mrs. Lipe and the Millers.

Mr. Miller, at some point, destroyed all the copies of the original earnest money agreement. Before February 22, 1980, Mrs. Burpee conveyed her interest in the property to Mrs. Lipe. On or about February 22, 1980, Mrs. Lipe conveyed the property to the Millers, for $47,000. A title company prepared the deed and closing documents.

On April 13, 1981, the Millers transferred the property to a third party for $26,911.50, plus other real property. Approximately five months later, that third party resold the property for $97,500. The Millers later sold the property that they had received from the third party for $120,000.

Plaintiff's complaint alleges that on or about February 21, 1980, defendants became indebted to Mrs. Lipe in the sum of $47,000 "for money had and received by the defendants for the use and benefit of Hazel P. Lipe." The prayer for relief seeks a judgment against defendants in that amount, plus interest. Plaintiff's theory is set forth in its brief:

"Plaintiff's underlying theory on the claim for money had and received is two-fold:

"A. Defendants acquired the * * * property through their confidential relationship with Mrs. Lipe and paid only one-half of the value of it.

"B. Defendants had a written earnest money agreement with Mrs. Lipe and Mrs. Burpee that the Millers repudiated and paid only one-half the agreed purchase price."

The trial court found that there were no genuine issues of material fact, that plaintiff could not pursue its breach of contract theory because that theory was not pleaded, and that "if the parol evidence rule means anything, it's got to mean something here." It granted defendants' motion for summary judgment, and plaintiff appeals from the resulting judgment.

Our scope of review was set forth in Hodecker v. Butler, 64 Or.App. 167, 170, 667 P.2d 540 (1983):

"Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47C; Seeborg v. General Motors Corporation, 284 Or. 695, 588 P.2d 1100 (1978). We review the record and draw all inferences from the pleadings, affidavits and other supporting material in the light most favorable to the party opposing the motion. Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978). This is also true as to those issues on which the opposing party would have the burden of proof at trial. Seeborg v. General Motors Corporation, supra, 284 Or. at 699 ."

The fact issues that plaintiff asserts are raised in this case are not raised by the pleadings. Plaintiff did not plead any facts concerning either a confidential relationship between the Millers and Mrs. Lipe or a repudiation of the original earnest money agreement by the Millers. However, on a motion for summary judgment, the affidavits may raise issues that go beyond the pleadings if an amendment of a pleading to raise those issues would be warranted. Hussey v. Huntsinger, 72 Or.App. 565, 696 P.2d 580 (1985). The trial court in its discretion, properly could have permitted plaintiff to amend its complaint to raise those issues had plaintiff moved to amend. See ORCP 23. Therefore, it is proper to consider those matters that go beyond the scope of the pleadings in this case. The parol evidence rule does not bar consideration of the evidence, because it is "evidence of the circumstances under which the agreement was made." See ORS 41.740. We hold that there exist genuine issues of material fact which preclude summary judgment.

The Supreme Court described the action for money had and received in Smith v. Rubel, 140 Or. 422, 426, 13 P.2d 1078 (1932):

"An action for money had and received, although an action at law, is governed by equitable principles. * * * The action is liberal in form and greatly favored by the courts. * * * The generally accepted test which...