Annand v. Austin

• Decision Date: 27 November 1917
• Citation: 168 P. 725,86 Or. 403
• Parties: ANNAND v. AUSTIN.
• Court: Oregon Supreme Court

168 P. 725

86 Or. 403

ANNAND v. AUSTIN.

Supreme Court of Oregon

November 27, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 167 P. 1017.

W. Y. Masters, of Portland, for appellant. Charles J Schnabel, of Portland (J. B. Ofner, of Portland, on the brief), for respondent.

BURNETT J.

An opinion written by Mr. Justice Benson reversed a judgment of the circuit court in favor of the defendant, and she has filed a petition for rehearing, which has had our attention.

We recall that the complaint was in the ordinary form to recover for money had and received to the use of the plaintiff. The substance of the answer was that the defendant received the money as an initial payment on a contract whereby she agreed to convey to plaintiff some real property and furnish with it an abstract showing clear title in the vendor. She pleads that she supplied such an abstract, and now tenders performance of the remainder of the agreement upon corresponding compliance on the part of the plaintiff. Issue having been joined on the answer, the defendant offered only oral testimony to prove the alleged covenant to sell land. The abstract put in evidence did not show clear title to the land vested in Mrs Austin. The findings were to the effect, however, that while the abstract disclosed certain defects they were not in fact serious, and that the plaintiff did not question the extraneous explanations which were made of them on behalf of the defendant during the negotiations about the proposed sale. The plaintiff attacked these findings, and moved that others determining the issues in her favor be substituted but her motion was denied. Under these conditions, the defendant now urges that the only thing to be considered is whether the findings will support the judgment. Let us view the case from that angle.

As she had a right to do, the defendant stated the contract under which she received the plaintiff's money, including the stipulation to furnish an abstract of the kind mentioned, and alleged that she has thus far performed her covenant. Her averments having been challenged by the reply, it was incumbent upon her to prove them as laid, for it is hornbook law that the allegations and proofs must agree. It is equally axiomatic that the verdict must be responsive to the issue. In this instance the condition portrayed in both the evidence and the findings is that the abstract indeed failed to show perfect title in the defendant, but that she otherwise made explanation of the...