Burgdorfer v. Thielemann

• Decision Date: 17 March 1936
• Citation: Burgdorfer v. Thielemann, 153 Or. 354, 55 P.2d 1122 (Or. 1936)
• Parties: BURGDORFER v. THIELEMANN. [*]
• Court: Oregon Supreme Court

55 P.2d 1122

153 Or. 354

BURGDORFER v. THIELEMANN. ^[*]

Supreme Court of Oregon

March 17, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action on the case for deceit by Charles Burgdorfer against Carl Thielemann. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

ROSSMAN J., dissenting in part.

Robert J. Creamer, of Portland, for appellant.

Harold W. Peterson, of Portland, for respondent.

KELLY Justice.

Plaintiff charges that by false representations and a false promise defendant fraudulently induced him to exchange a note in the principal sum of $2,000, and the mortgage securing it, together with two unsecured notes in the respective principal sums of $150 and $173, for lots 3 and 10, block 25, Collins View tract in Multnomah county, Or upon which there was a mortgage of $500. The mortgage securing the $2,000 note was upon approximately 64 acres of real property in Clackamas county, Or.

The representations, said by plaintiff to have been made by defendant, were that the Collins View lots had a present fair value of $2,400; that the tenant occupying the same had made the defendant a recent offer of $2,200; and the promise, alleged by plaintiff to have been made by defendant, was that defendant would assume and pay the $500 mortgage on the Collins View lots and save plaintiff harmless therefrom. It is also alleged in the second amended complaint, upon which issue is joined, that defendant represented to plaintiff that the party holding said last-mentioned mortgage, whose name defendant refused to divulge, was away from the city of Portland and could not be contacted.

Plaintiff further alleges that upon the opening of negotiations for the exchange aforesaid, and at all times during said negotiations, plaintiff stated to defendant that he had had very little experience in dealing in real estate and no experience in dealing in property in the Collins View district; that he knew nothing of the value of such property; that he had heard that the defendant had dealt with real estate and real estate mortgages extensively; that he was going to act in reliance on the defendant's superior knowledge of the values of the Collins View tract; that the defendant assured the plaintiff that he might rely on his statements concerning the value and condition of the said property; that he need make no further investigation; and that plaintiff did rely on the defendant's representations and statements as set out in said second amended complaint.

It is further alleged in plaintiff's second amended complaint:

"That the representations made to the plaintiff by the defendant hereinabove set out were false and fraudulent; that the defendant had no intention at the time of making the said promise, or at any time at all, of performing the promise to plaintiff hereinabove set out; that the defendant knew that the said representations and promise were false and fraudulent and that he made them in full knowledge of their falsity and with the design and intent that the plaintiff should believe the said representations and promise and should act in reliance thereon; that the plaintiff did believe and rely on the said representations and promise of the defendant and did act thereon to his great damage; that on or about the 5th day of December, 1933, the plaintiff, in reliance on the defendant's representations and promise, transferred and assigned to the defendant his mortgage and notes described and referred to in Paragraph I and III supra and received in exchange a deed executed by the defendant of the property described and referred to in said Paragraph IV supra; that, had the plaintiff not believed and relied on the said representations and promise of the defendant, he would not have made the said exchange.

"That in the latter part of January, 1934, the plaintiff learned for the first time that the defendant had made the promise to assume and pay the mortgage referred to in Paragraph IV supra with no intent to perform, and that the defendant did not intend to pay off said mortgage at all; that at the time of filing this complaint the balance unpaid on the said mortgage against the property the plaintiff received in the exchange hereinabove referred to, totalled $450.00; that in the month of January, 1934, the plaintiff learned for the first time that the property referred to in Paragraph IV had a fair value, free from all encumbrances, in December, 1933, of a sum not to exceed $1200.00, that the tenant occupying the said property had made no offer of $2200.00 or of any sum even approaching that figure for the said property at any tiime and that the plaintiff had exchanged a note and mortgage of $2000.00 plus accrued interest, secured by property worth at least $3000.00, the said note being reasonably worth its face value, and two other notes in the principal sum of $323.00 plus accrued interest, the said notes being reasonably worth their face value, for property which, free and clear, had a fair value of not to exceed $1200.00.

"That at the time of filing this action the plaintiff has been damaged by his reliance on the defendant's fraudulent misrepresentations, conduct and promise as set out in Paragraphs VI, VII, VIII, and IX herein in the sum of $466.60, this amount being $450.00 plus interest thereon at the rate of seven per cent. per annum from December 9, 1933, to June 19, 1935, and in the further sum of $1123.00."

An appropriate allegation in support of punitive damages is also made in said amended complaint.

Testimony was given tending to support the allegations of plaintiff's said second amended complaint. Defendant's testimony contradicted plaintiff's at all points tending to show fraudulent conduct on defendant's part.

Defendant's first assignment of error imputes error upon the part of the court in allowing plaintiff to testify as to appellant's alleged promise to pay off the mortgage on the Collins View property.

The precise objection which defendant makes is that the alleged promise could not have been performed within one year and, therefore, to be enforceable it must have been reduced to writing and signed by the party sought to be charged.

In support of this assignment, defendant cites: Hall v. Puente Oil Co., 47 Cal.App. 611, 191 P. 39; Springer v. Campbell Co., 174 Ill.App. 278; Saunders v. Kastenbine's Executor, 6 B.Mon. (Ky.) 17; Statute of Frauds, section 9-909, Oregon Code 1930, and 27 C.J. 185.

Hall v. Puente Oil Co., supra, is a case wherein a driver of an automobile, in operating the same, injured plaintiff. The court held that a contract, not in writing, to pay plaintiff $15 per month for 100 months was within the statute of frauds and inadmissible. It is not an action for deceit.

Springer v. Campbell Co., supra, is an action for rent. The court held that no contract had been executed and the alleged contract covering a term of five years would have to be in writing. It is not an action for deceit.

Saunders v. Kastenbine's Executor, supra, is a suit in equity to restrain defendant from interfering with plaintiff's possession of a slave. The court held that plaintiff could not prove by parol testimony an agreement to purchase the slave by paying $400 for her at the rate of not less than four nor more than $8 per month for the reason that, according to the manifest intention of the parties, the agreement was not to be performed within a year from the making thereof. It is not an action for deceit.

As stated, defendant cites 27 C.J. subject Statute of Frauds, 185. In section 109, which appears to be the only question on the page cited at all relevant to the issues herein, it is said: "A promise to pay, or to become obligated for the payment of money which is not to be or cannot be fully performed within one year from the making thereof is within the statute as much as a promise or agreement to do any other act." This text is supported by citation to Wilson v. Ray, 13 Ind. 1; Kelley v. Thompson, 175 Mass. 427, 56 N.E. 713; Cabot v. Haskins, 3 Pick. (Mass.) 83, and Cantwell v. Johnson, 236 Mo. 575, 139 S.W. 365.

Wilson v. Ray, supra, is an action upon oral contract. The only question therein affected by alleged fraud is whether a fraudulent refusal to reduce the contract to writing has the effect of taking the case out of the statute of frauds and giving the oral agreement the validity of a written one. No such question is involved in the case at bar.

Kelley v. Thompson, supra, involved a set-off based upon an oral agreement not to be performed within one year, and the same was held to be unenforceable because not in writing as required by the statute of frauds. No fraud is alleged

Cantwell v. Johnson, supra, involves no question of alleged fraudulent representations that defendant would indorse the original and renewal notes, which was the agreement held therein to be within the statute of frauds. If it had been alleged that defendant promised to make such indorsements and when he so promised defendant had no intention of keeping that promise, but made the same under circumstances which render a false representation the basis of constructive fraud, then that case would be in point here; but no such allegations were made.

The question presented by defendant is based upon the first subdivision of section 9-909, Oregon Code 1930, which we quote:

"9-909. Agreement not in writing, when void-Statute of frauds.-In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence therefore, of the agreement shall not be received other than the writing, or...