Banfield v. Banfield

• Decision Date: 13 November 1893
• Parties: BANFIELD v. BANFIELD.
• Court: Oregon Supreme Court

34 P. 659

24 Or. 571

BANFIELD v. BANFIELD.

Supreme Court of Oregon

November 13, 1893

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Action by M.C. Banfield against Jacob Banfield. There was judgment for defendant, and plaintiff appeals. Affirmed.

G.G Gammans, for appellant.

Dell Stuart, for respondent.

PER CURIAM.

This is a suit to restrain an action at law, and compel the reformation of the note upon which the action is founded. Briefly the facts are that in September, 1890, the plaintiff purchased of his brother, the defendant, a certain tract of land in Portland, for which defendant held a bond for a deed upon which some 27 monthly installments of $10, and interest had been paid, and duly indorsed thereon, and, as consideration for the purchase, paid $600 in money, and assumed and agreed to pay the balance of the purchase price which defendant was to pay for the property, and, some three or four weeks later, gave the note in suit for $600. At the time of the sale the bond was in the possession of the defendant, and he represented or stated to the plaintiff that there was $600, "may be a little more or a little less," due thereon, he supposing and believing such to be the case, and without having or pretending to have any actual knowledge on the subject. In fact, it is admitted that he did not pretend to have made any definite calculation as to the amount unpaid, nor was he content to do so. Soon after the purchase the bond was assigned to plaintiff, and at the time of executing the note, and for some three or four weeks prior thereto, was in his possession; but without making any attempt to ascertain the actual amount unpaid thereon, although the data for so doing appeared on the face of the bond, he executed and delivered the note in suit for $600. More than a year afterwards, and after he had paid 15 or 16 installments of the purchase price, and after he had been sued on the note, he discovered for the first time, as he claims, that, instead of $600 being unpaid on the bond, there was in fact $660 unpaid on the principal, and $154 accumulated interest; whereupon he commenced this suit to have the note reformed by reducing the amount thereof to $341.40, instead of $600, the amount for which it was originally given, claiming that he was induced to execute the note by the misrepresentation of the defendant as to the amount unpaid on the bond.

While we concur with couns...