Bloech v. Hyland Homes Co.

• Decision Date: 06 July 1926
• Citation: 247 P. 761,119 Or. 297
• Parties: BLOECH v. HYLAND HOMES CO. ET AL.
• Court: Oregon Supreme Court

247 P. 761

119 Or. 297

BLOECH v. HYLAND HOMES CO. ET AL.

Supreme Court of Oregon

July 6, 1926

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by Victor Bloech against the Hyland Homes Company and others. From decree sustaining demurrer, plaintiff appeals. Reversed and remanded.

This is a suit for the specific performance of a contract between the plaintiff and the defendant Hyland Homes Company, by which it is alleged that the defendant agreed to sell, and the plaintiff agreed to purchase for an agreed consideration, a certain lot. A second amended complaint was filed. The defendants demurred to the pleading upon the grounds that the same did not state facts sufficient to constitute a cause of suit. The demurrer was sustained by the trial court, the plaintiffs failed to plead further, and the court dismissed the suit. The plaintiff appeals to this court assigning error in sustaining the demurrer to the amended complaint and dismissing the suit.

The contract, which is the basis of this suit, which is attached to the amended complaint as an exhibit, as far as material to this suit, is as follows:

"This agreement made and entered into the first day of August in the year 1916 by and between the parties hereto witnesseth That the Hyland Homes Company a corporation (by its president, George M. Hyland) hereafter known as the party of the first part and Victor Bloech hereafter known as the party of the second part, agreed and contracted as follows:

"That for and in consideration of a warranty deed to lot 8 (eight) block 41 (forty-one) Taylors Astoria according to the recorded plat thereof and the sum of one hundred and fifty (150) dollars in hand paid, receipt of which is hereby acknowledged by the party of the second part.

"The said second party agrees to do all painting and tinting (according to specifications hereto attached) of three houses one on each of the following lots: Lot 3 block 35 lot 4 block 42; lot 14 block 41; and designated by plans as houses number 1; 3; and 5 in a workmanlike manner and to the satisfaction of the party of the first part; and further agrees to do such additional work as the said party of the first part may designate in the sum of one hundred and fifty (150) dollars. Should such additional work not be ordered or arranged for by the time of the completion of the three houses above described, then said party of the second part shall repay to said party of the first part the said sum of one hundred and fifty dollars at which time the aforementioned warranty deed together with a receipt in full for the payment of all street improvements shall be issued by the said party of the first part to the party of the second part. * * *

"In witness whereof the parties hereto have hereunto set their hands and seals this 11th day of January in the year 1917. [ Signed] Hyland Homes Co., Geo. M. Hyland, Pres., Party of the First Part. Victor Bloech, Party of the Second Part. Witnesses: E. W. Karry. H. T. Prail."

The specifications are headed thus:

"Specifications for the painting of house No. one on lot 14, block 41, house No. 3 lot 3 block 35; and house No. 5 on lot 4 block 42 Taylors Astoria. E. N. Larry, Architect. Astoria Oregon."

The plaintiff alleges in substance that the contract was for the sale and purchase of all of lot 8 in block 41 in Taylors Astoria, an addition within the corporate limits of the city of Astoria, Clatsop county, state of Oregon, as said addition was laid out and recorded. Plaintiff avers:

"That at and before the making and execution and signing of said agreement shown by the copy thereof hereto attached, marked 'Plaintiff's Exhibit A' and made a part of this second amended complaint, plaintiff and defendant Hyland Homes Company intended that said written instrument should describe and provide for the sale to plaintiff by defendant Hyland Homes Company of the real property described and referred to in paragraph IV of this second amended complaint, as follows:

"All of lot 8 in block 41 in Taylors Astoria, an addition within the corporate limits of the city of Astoria, Clatsop county, Or., as the said addition was laid out and recorded by the Peninsular Land & Trust Company and the Hammond Lumber Company.

"That through a mutual mistake of the plaintiff and defendant Hyland Homes Company, the said written contract which is shown by a copy thereof hereto attached, marked 'Plaintiff's Exhibit A,' and made a part of this second amended complaint, did not, and does not fully set out and describe the real property intended by plaintiff and defendant Hyland Homes Company, and which said defendant agreed to sell to plaintiff, and which defendant agreed to purchase from and accept in payment for the painting of said three houses, and which real property is described as follows:

"All of lot 8 in block 41 in Taylors Astoria, an addition within the corporate limits of the city of Astoria, Clatsop county, state of Oregon, as said addition was laid out and recorded by the Peninsular Land & Trust Company and the Hammond Lumber Company, but was described as set out and shown by the copy of said contract which is hereto attached, marked 'Plaintiff's Exhibit A,' and made a part of this second amended complaint."

Plaintiff also avers that he tendered to defendant Hyland Homes Company payment of $150, and brings that sum into court, and the further sum of $4 covering an assessment on the lot paid by defendants.

The trial court sustained a demurrer to the first amended complaint, upon the specific ground that the alleged writing was insufficient under the statute of frauds.

Plaintiff avers that he performed all the terms of said contract and painted the three houses; that the additional work referred to in the contract was not ordered; that when plaintiff completed the painting he tendered payment of $150 to defendant Hyland Homes Company and demanded a deed to the real estate, and that defendant refused to accept said sum and put plaintiff off with promises of the execution and delivery of the deed of the real property to plaintiff and the acceptance of the money from time to time until March 1920, when said defendant refused to convey said real property to plaintiff or perform the terms of the agreement that about March 3, 1920, said defendant, in violation of its agreement, executed and delivered to defendants Edward E. Gray and Edna Ida Gray a deed of conveyance of said real property, which deed was thereafter recorded in the record of deeds of Clatsop county, Ore.; that the legal title to the lot was taken by defendant Gray in trust for plaintiff under some plan or arrangement with Hyland Homes Company, subject to the terms of the agreement of the contract between plaintiff and Hyland Homes Company; that plaintiff has demanded of the Grays that they convey the property to him, but that each of defendants have refused so to do.

J. B. Finnigan, of Portland (Lewis, Lewis & Finnigan, of Portland, and James W. Mott, of Astoria, on the brief), for appellant.

Edward E. Gray, of Astoria (Norblad & Hesse, of Astoria, on the brief), for respondents.

BEAN, J. (after stating the facts as above).

The main question presented in the case is based upon the contention of defendants that the written contract "is void under the statute of frauds" for the reason the description of the realty is insufficient. The description of the lot in the contract is "That for, and in consideration of a warranty deed to lot 8 (eight) block 41 (forty-one) Taylors Astoria according to the recorded plat thereof."

Astoria is an important city in Clatsop county, Or., with a national history. It is well known that "Taylors Astoria" is a part of Astoria. If any one lacks such knowledge, it can be obtained by a reference to the official charter of the city of Astoria filed pursuant to statute, in the library of this court. See Charter of Astoria, p. 2. Any description of real estate in a deed, or any other writing in relation to real estate, by which the property can be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient.

Undoubtedly, a surveyor, or any business man well acquainted in Astoria, could locate "Taylors Astoria." When this is done, in the instant case, we have the numbers of the lot and block, which any surveyor could easily locate and describe the boundaries. House v. Jackson, 24 Or. 89. 97, 32 P. 1027; McMaster v. Ruby, 80 Or. 476, 485, 157 P. 782; Hoffman v. Dorris, 83 Or. 625, 163 P. 972; Hardy v. Cal. Trojan Co., 109 Or. 76, 81, 219 P. 197; Talbot v. Joseph, 79 Or. 308, 313, 155 P. 184.

In Bogard v. Barhan, 52 Or. 121, 96 P. 673, 132 Am. St. Rep. 676, it was held sufficient in a deed, or other instrument affecting real property, when the descriptions were "my 15-acre farm located one mile north of Wood-burn. Marion county, Or.," and "his five-acre residence property lying west of the Catholic Church." The description in the contract under consideration, in the case at bar, is definite enough to show clearly what the purchaser was contracting to buy and what the vendor intended to sell. The description may be partly contained in a separate document, which, if referred to in the other portions of the written contract so as to connect them, becomes a constituent part thereof. A description of the subject-matter in such a contract is sufficient when it complies with the maxim, "Id certum est certum reddi potest." Pomeroy, Spec. Performance, §§ 152-153.

If a tract of land has acquired a name to distinguish it, and by which it is known, and there is no other tract of the same name in that locality, it may be conveyed by such name. How...