Anaheim Co. v. Holcombe

JurisdictionOregon
PartiesANAHEIM COMPANY, a Nebraska corporation, Appellant, v. Willard C. HOLCOMBE, dba House and Home Realty, Claude E. Mariner, dba Oregon Farms & Ranches, and Alvin C. Jelen and Lorraine H. Jelen, husband and wife, Respondents.
Citation426 P.2d 743,246 Or. 541
CourtOregon Supreme Court
Decision Date19 April 1967

Michael F. McClain, Corvallis, argued the cause for appellant. On the brief were Ringo, Walton & McClain, Corvallis.

LaVerne M. Johnson, Corvallis, argued the cause for respondents Holcombe and Mariner. On the brief were Thomas & Johnson, Corvallis.

Richard T. Kropp, Albany, argued the cause for respondents Jelen. On the brief were Willis, Kyle, Emmons & Kropp, Albany.

Before PERRY, C.J., and GOODWIN, DENECKE and REDDING, JJ.

REDDING, Justice (pro tempore).

The plaintiff appeals from a judgment dismissing its complaint with prejudice. The action was tried to the court without a jury.

The plaintiff in its complaint alleges two separate counts. In the first count plaintiff seeks to recover the sum of $5,000 paid on account of the purchase price of real property under an earnest money agreement. In the second count recovery of the sum of $5,000 is sought based upon the common count of money had and received.

The defendants Holcombe and Mariner were real estate brokers, each engaged in his separate business in Corvallis, Oregon. The defendants Jelen were the owners of six and one-half acres of land located in Benton county, Oregon, improved with a residence and outbuildings.

Gerald Strausheim was the managing agent for the plaintiff, a Nebraska corporation having as its stockholders the mother, brother and wife of Gerald Strausheim. The stockholders were also the officers of the corporation and constituted its board of directors.

The directors of the corporation planned to move a part of the corporation's operations to Oregon. Gerald Strausheim, its managing agent, came to Oregon on August 5, 1964, to purchase in the name of the corporation, a private residence for himself and his family. He was purchasing this in the name of the corporation because a claim of several hundred thousand dollars growing out of an oilfield accident was pending against him personally. Based on an advertisement in a local newspaper, Mr. Strausheim called Mr. Holcombe and inquired about the Jelen property. Defendant Holcombe testified that at the time of this telephone call he inquired as to the proposed means of financing the purchase and Mr. Strausheim advised him that this would be a cash deal. Mr. Strausheim testified that on the way to look at the property of the defendants Jelen, he advised Mr. Holcombe that he wanted a loan on the property by means of a deed and mortgage in the approximate amount of $25,000. This was contradicted by Holcombe, who testified that no mention was made of the necessity of financing any part of the purchase price until they returned to Holcombe's office that afternoon for the purpose of writing up the earnest money agreement. Holcombe testified that until that time he had considered this to be a cash deal. Using a printed form, they made out an earnest money receipt which Mr. Strausheim signed. A check for $5,000 as earnest money deposit on the purchase price was also delivered to Mr. Holcombe. Mr. and Mrs. Jelen, the owners, subsequently accepted the offer and signed the earnest money agreement. The earnest money agreement in its material parts read as follows:

'Received from ANAHEIM COMPANY (a Nebraska Corp.) * * * (hereinafter called 'purchaser') the sum of Five Thousand and no/100ths Dollars ($5,000.00) * * * as earnest money and in part payment for the purchase of the following described real estate * * * which we have this day sold to said purchaser for the sum of Forty Thousand and no/100ths Dollars ($40,000.00) on the following terms, to-wit: The sum, hereinabove receipted for, of Five Thousand Dollars ($5,000.00) * * * Upon acceptance of title andDPdelivery of a* (deed

(contract

the sum of Ten Thousand Dollars ($10,000.00), Balance of Twenty Five Thousand Dollars ($25,000.00) payable as follows: as arranged by lender, and borrower. This offer is contingent on obtaining a loan of $25,000 * * *.

'* * *

'Possession of said premises is to be delivered to purchaser on or before 30 days * * *.'

After executing the earnest money receipt, Strausheim accompanied Holcombe to the Corvallis office of Equitable Savings & Loan Association where they talked with the manager of said association about the possibility of obtaining a $25,000 loan on the property of Mr. and Mrs. Jelen. Concerning his discussions with the manager of Equitable Savings & Loan Association, Strausheim testified:

'* * * He asked me if--at that time I thought that the corporation officers would sign the mortgage as individuals along with the corporation. I told him that I thought that probably they would.

I didn't know why they wouldn't * * *.'

Gerald Strausheim returned to Nebraska that evening. The manager of the Equitable Savings & Loan Association mailed to Strausheim in Nebraska a financial statement form for execution by the corporation. This was filed out on behalf of the corporation and returned. The financial statement disclosed that the corporation had been organized for only a few months under the laws of Nebraska; had not secured authorization to do business in Oregon and had total net assets of only slightly more than $20,000. Although upon inspection the security was determined to be ample, Equitable Savings & Loan Association, because of the information disclosed by the financial statement, refused to make the requested loan without the signatures of the officers of the corporation in their personal capacity. The officers of the corporation refused to sign.

Mr. Strausheim in his testimony stated that, after learning that Equitable Savings & Loan Association would not make the loan, he personally made no further effort to secure financing in Oregon, but that he did talk to certain persons in Nebraska about a loan. No other application was actually made. Mr. Strausheim then demanded a return of the earnest money on deposit with Holcombe. Holcombe then contacted the defendants Jelen concerning their willingness to finance the sale by means of a land sales contract,...

To continue reading

Request your trial
16 cases
  • Phillips v. Johnson
    • United States
    • Oregon Supreme Court
    • September 27, 1973
    ...has enforced earnest money agreements, where sufficiently definite in their terms, in a number of cases. See Anaheim Co. v. Holcomb, 246 Or. 541, 547, 426 P.2d 743 (1967); Sternes v. Tucker, 239 Or. 105, 112--113, 395 P.2d 881 (1964); Aldrich v. Forbes, 237 Or. 559, 569, 385 P.2d 618, 391 P......
  • Shipler Logging Co. v. Ponderosa Inv. Co.
    • United States
    • Oregon Court of Appeals
    • March 17, 1980
    ...has enforced earnest money agreements, where sufficiently definite in their terms, in a number of cases. See Anaheim Co. v. Holcombe, 246 Or. 541, 547, 426 P.2d 743 (1967); Sternes v. Tucker, 239 Or. 105, 112-113, 395 P.2d 881 (1964); Aldrich v. Forbes, 237 Or. 559, 569, 385 P.2d 618, 391 P......
  • Kitchin v. Mori
    • United States
    • Nevada Supreme Court
    • March 4, 1968
    ...486 (1961); Honey v. Henry's Franchise Leasing Corp. of America, 64 Cal.2d 801, 52 Cal.Rptr. 18, 415 P.2d 833 (1966); Anaheim Company v. Holcombe, 426 P.2d 743 (Or.1967); Malmberg v. Baugh, 62 Utah 331, 218 P. 975 (1923); Schwartz v. Syver, 264 Wis. 526, 59 N.W.2d 489 (1953); Corbin on Cont......
  • Western Hills, Oregon, Ltd. v. Pfau
    • United States
    • Oregon Supreme Court
    • April 2, 1973
    ...because the expense of providing an alternative sewer system made the development financially unattractive. In Anaheim Co. v. Holcombe, 246 Or. 541, 426 P.2d 743 (1967) we considered an earnest money agreement which contained a provision making the purchaser's offer 'contingent on obtaining......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT