Alexander v. Hughes

• Jurisdiction: Oregon
• Parties: David ALEXANDER, Appellant, v. Flossie L. HUGHES, Respondent.
• Citation: 256 Or. 249,472 P.2d 818
• Court: Oregon Supreme Court
• Decision Date: 29 July 1970

Page 818

472 P.2d 818

256 Or. 249

David ALEXANDER, Appellant, v.Flossie L. HUGHES, Respondent.

Supreme Court of Oregon.

Argued and Submitted May 6, 1970.

Decided July 29, 1970.

Carlton W. Hodges and William E. Hurley, Portland, argued the cause for appellant.With William E. Hurley, Portland, on the briefs were Bernard & Hurley, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent.With him on the brief were Margy J. Lampkin, Oregon City, and Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before McALLISTER, and SLOAN, O'CONNELL, DENECKE, HOLMAN and HOWELL, JJ.

SLOAN, Justice.

Although this proceeding was initiated for a declaratory judgment, in reality it is a suit for the specific performance of an earnest money agreement in which plaintiff was the proposed purchaser and the defendant the proposed seller.The trial court, in a written opinion, found that the plaintiff's agent had engaged in misleading conduct inducing the defendant to sign the document and refused to enforce it.Plaintiff appeals.

The evidence that is not disputed discloses that the document in question was signed on November 8, 1967.The property involved is described as being 'within a diamond interchange of the freeway' which was being constructed.Originally, the property owned by defendant Mrs. Hughes consisted of 10 acres of land.At the time of the questioned transaction the Highway Commission was in the process of acquiring about one-half of Mrs. Hughes' property for the construction of the freeway.The remaining 5 acres retained by Mrs. Hughes is the property that plaintiff desired to acquire.

Plaintiff testified that he had previously purchased various properties along the highways that had been and were being constructed in Oregon.In doing so, he had frequently utilized the services of a licensed real estate agent by the name of Holden.Sometime prior to the date mentioned, plaintiff became aware of the existence and location of Mrs. Hughes' property and employed Mr. Holden as his agent to endeavor to acquire the same.He authorized Mr. Holden to pay as much as $30,000 for the property owned by Mrs. Hughes.

Mr. Holden had had a prior, very limited acquaintance with Mrs. Hughes but he was well acquainted with members of Mrs. Hughes' family.Mr. Holden paid several visits to Mrs. Hughes in her home on the property.On November 8, in Mrs. Hughes' home, he prepared the earnest money receipt in question, which she then signed.

The disputed testimony is the conflicting recitals of Mrs. Hughes and the agent Holden as to the conversation which led to the signing of the paper.Mrs. Hughes testified that she at all times told Holden she did not want to sell and wished to remain in her home for the rest of her life.She was then 76 years old.She stated that Holden approached her as a friend of the family, that she had no idea of the value of her property, that she had no intention of making a contract and that at all times she told Holden she would not consider any proposal until she had an opportunity to present it to her attorney.Mr. Holden testified that his visits with Mrs. Hughes were not social in character, but were for the purposes of bargaining with her.He claimed that his first offer of $25,000 for the property did not interest her but when he raised the offer to $30,000 that she did become interested.The pertinent conflict, however, is the differing testimony of what took place when the actual document was signed.

Mrs. Hughes testified that on this occasion,...