Cooper v. Hillsboro Garden Tracts

• Decision Date: 09 November 1915
• Citation: 78 Or. 74,152 P. 488
• Parties: COOPER v. HILLSBORO GARDEN TRACTS.
• Court: Oregon Supreme Court

152 P. 488

78 Or. 74

COOPER v. HILLSBORO GARDEN TRACTS.

Supreme Court of Oregon

November 9, 1915

Department 2.

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

Action by McLain Cooper against the Hillsboro Garden Tracts, a private corporation. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.

McLain Cooper seeks to cancel 10 land contracts, only one of which was made with him, while the others were signed by different persons. The Hillsboro Garden Tracts, a private corporation paid $85,000 for 473 acres of land, known as the Connell farm, and then platted and subdivided most of the property. Fifty or 60 acres of the tract are located within the city limits of Hillsboro and close to the courthouse; and the remainder lies just beyond the municipal boundaries. The contracts were all signed by the defendant, but the execution of them was brought about through the agency of either the Ada Land Company or the Smith-Willoughby Company, real estate brokers, with whom the land had been listed.

On February 12, 1912, defendant agreed to sell, and the plaintiff agreed to purchase, lots 39 and 40 in block 18 Garden Tract addition to Hillsboro, and tracts 7 and 8 in block 4 of Hillsboro Garden Tracts for $3,256.50 of which $825 was paid at the time of entering into the agreement entitling the plaintiff to take possession of the land, and the balance of the purchase price was to be paid in specified installments. Contracts which were identical in terms with the one signed by the plaintiff, except as to the description of the land and the price to be paid, were made by the defendant on April 1, 1912, with Fred E. Koch; on April 15 1912, with Fred E. Koch; on March 28, 1912, with Wm. Rose; on April 23, 1912, with J. E. Rose; on July 5, 1912, with J. B Wirz and S. R. Wirz; on March 1, 1912, with J. A. Johnson; on March 1, 1912, with Edward L. Johnson and Ray Pierson; on March 16, 1912, with E. Seidel and on July 30, 1912, with Frank A. Smith. Payments were made on the several agreements, and improvements were placed upon each tract of land except the properties described in the writings signed by J. E. Rose and Frank A. Smith and the one executed by Fred E. Koch on April 15, 1912. On April 28, 1913, Fred E. Koch transferred both of his contracts to the plaintiff by executing assignments, one of which reads:

"I, Fred E. Koch, the party of the second part in the within contract, for and in consideration of one dollar and other valuable consideration to me in hand paid, the receipt whereof is hereby acknowledged, do hereby sell, assign and convey unto McLain Cooper of Hillsboro, Oregon, all my right, title and interest in, to and under the said within contract, including all rights of action or otherwise, to me accrued or hereafter to accrue thereunder, together with all other rights of whatever nature or kind under said contract, in connection therewith or in the making thereof."

Similar assignments were made by Wm. Rose and E. Seidel on April 28th; by Edward L. Johnson and Ray Pierson on April 30; by J. A. Johnson on May 2; by J. E. Rose on May 3; and by the Wirzs and Frank A. Smith on May 5.

On May 19, 1913, the plaintiff tendered to the defendant his individual contract, as well as the nine agreements which had been assigned to him, together with a quitclaim deed to the land embraced within the 10 writings, and demanded that the defendant return to him all the payments made on the several contracts, and that the Hillsboro Garden Tracts make reimbursement for the improvements placed upon the properties. The defendant refused to comply with the demand, and thereafter the plaintiff commenced this suit for the purpose of rescinding the written agreements and recovering the installments paid and the value of the improvements made by the contracting purchasers.

The complaint contains 10 causes of suit, the first of which is based upon the contract made between the plaintiff and defendant. It is alleged that for the purpose of inducing the plaintiff to enter into the agreement, the defendant falsely represented to him that, if he would enter into the contract, the defendant would furnish employment to him during the summer, fall, and winter of 1912 in making improvements upon the streets and roads on and adjacent to the property owned by defendant; that the defendant would immediately begin the grading and clearing of streets in and about its property; that it would lay cement sidewalks; that it would erect 17 houses, would build three bridges over McKay street, would erect a sawmill, and would give plaintiff employment upon all these improvements; that plaintiff could have the privilege of cutting cordwood from the timber; that the defendant would furnish to plaintiff all the work he could do at the rate of $2.50 per day and at the rate of $6 per day for a man and team--all of which would enable the plaintiff to earn a large part of the purchase price to be paid by him. It is further alleged that the defendant represented that the lots and tracts were beaver dam lands and very fertile; that the defendant would furnish and operate daily and in season a vegetable car between Hillsboro and Portland; that the World's Keep Fresh Company consisted largely of the stockholders of the defendant; and that it was establishing a preserving plant in the city of Hillsboro for the preserving of vegetables and fruits. The complaint also charges that one Summerland, who was in the employ of defendant, was introduced to plaintiff under the name of Thompson, and that in the presence of Cooper and for the purpose of baiting him, Summerland pretended to pay defendant $500 as part payment of certain lots near the ones which plaintiff afterwards agreed to purchase.

It is alleged in the second and third causes of suit that the defendant represented to Fred E. Koch that it intended to and would immediately grade Jackson street through its property, and would at once lay cement sidewalks along that street; that it intended to and would immediately grade Division street and put Beaver road in first-class shape; that Fred E. Koch should have work in making these and other improvements on adjacent properties at the rate of $2.50 per day and that he would be enabled to earn money to make the payments provided for in his agreements; that the defendant was erecting 17 houses; that it would immediately construct a sawmill for the manufacture of timber on 60 acres of land belonging to it, and that Fred E. Koch should have employment in any of the work; that the defendant would run daily a vegetable car from Hillsboro to Portland, and would carry vegetables and berries at low rates; that the land was very fertile and, in the previous year, had yielded 75 bushels of wheat per acre; and that it was new land, having been cultivated two or three years.

The agreement with Wm. Rose furnishes the subject for the fourth cause of suit, and it is alleged that the defendant represented to him that Division street would immediately be graded and cement sidewalks laid; that all the streets would be immediately grubbed out, graded up, and good roads made; that the defendant had contracted for and would have built 17 houses and 3 bridges; that when Wm. Rose stated that he must have work if he bought any of the lots, the defendant represented that he could have all the work that he might desire, and that the defendant would put in one or two sawmills to cut the timber belonging to the Hillsboro Garden Tracts; that all the work would be done as rapidly as men could be procured to do the same; and that the defendant agreed that Wm. Rose should have work as long as he wanted it from the defendant at $2.50 per day.

The fifth cause of suit is based upon the contract with J. E. Rose, and it is alleged that the defendant represented to him that it would, and intended immediately, to grade Jackson street, and that all the streets would be graded as rapidly as men could be procured to do the work; that 3 bridges and 17 houses would be erected on its property, and that J. E. Rose should have all the work he desired at the rate of $2.50 per day in making the improvements mentioned and in working in the sawmill of defendant, which it said it would erect immediately.

The sixth cause of suit has to do with the contract made with J. B. Wirz and S. R. Wirz. The complaint avers that the defendant represented that it was having and would have a large amount of work done upon the streets and roads in its properties, and that the Wirzs would have employment from the defendant as long as they desired to work, at good wages.

The seventh cause of suit relates to the contract with J. A. Johnson, to whom it is claimed defendant represented that it was having and immediately would have built 3 bridges and several houses on its properties, and that the streets were to be graded and cement walks put down as far as the acre tracts; that the defendant had a large amount of stock in the World's Keep Fresh Company of Hillsboro, Or., which company would purchase all the vegetables and berries Johnson could produce; that the defendant would operate a vegetable car every day from Hillsboro to Portland and thus furnish a good market for such vegetables as Johnson might raise; that defendant told Johnson he could have work as long as he might desire it in making the improvements mentioned; that the land agreed to be purchased by Johnson was all cleared and ready for the plow, although stumps and trees formerly on the land had been nearly burned down level with the ground and covered with earth.

The eighth cause of suit involves the contract made with Edward L. Johnson and Ray Pierson, to whom it is averred the defendant represented that it was having...