Cunningham v. Friendly

• Decision Date: 21 April 1914
• Citation: 70 Or. 222,140 P. 989
• Parties: CUNNINGHAM v. FRIENDLY.
• Court: Oregon Supreme Court

140 P. 989

70 Or. 222

CUNNINGHAM v. FRIENDLY.

Supreme Court of Oregon

April 21, 1914

On petition for rehearing. Denied.

For former opinion, see 139 P. 928.

EAKIN, J.

It is not a matter of importance who introduced defendant's Exhibit 1. It was here for the consideration of what it contained, regardless of who offered it. Jennings v Trummer, 52 Or. 149, 96 P. 874, 23 L. R. A. (N. S.) 164 132 Am. St. Rep. 680, and cases there cited; Patton v Women of Woodcraft, 65 Or. 33, 131 P. 521. It is objected that the law does not make the court the searcher of the record as to the abstract of title. That may be true, but the law does make the court the judge of whether the abstract is sufficient; and there is no question here as to the sufficiency of the title.

If there be defects in the title, they must be made specific issues and tried by the court; and if plaintiff objects to the abstract as suspicious or defective, he must allege what is defective and in what respects. He cannot call an expert to decide the matter for the court, and custom or practice of attorneys or abstractors will not determine the title, nor the rule of evidence in relation thereto. A complete abstract of title does not mean the complete evidence of the title, but a synopsis of the data as to the title.

The plaintiff was not employed to find a purchaser for the lots and to bring the purchaser and seller together, but "to make sale of the real property * * * for the price of $25,000 * * * and to execute a binding contract of sale on our behalf. In case the above property is sold or disposed of, * * * you shall have * * * $675 commission on the above price." This case does not come within the rule announced in Henry v. Harker, 61 Or. 276, 118 P 205, 122 P. 298. No specific objections are made in the pleadings or in the evidence to the title to the property and the whole controversy therein is as to the sufficiency of the abstract. Plaintiff relies upon the fact that he brought Rocky and Friendly together, but that does not bring plaintiff within his contract to sell; neither does Rocky by his letter (Plaintiff's Exhibit E) agree to buy.

A deposit on the price does not bind the purchaser to buy. There must be a contract in writing or such part performance as takes the case out of the statute. A part payment binds a contract of sale of personal property, but not of real estate. See Cooper v. Thomason, 30 Or. 161, 45 P. 295.

...