David M. Scott Const. Corp. v. Roush

• Decision Date: 26 December 1975
• Citation: 273 Or. 877,544 P.2d 162
• Parties: DAVID M. SCOTT CONSTRUCTION CORP., an Oregon Corporation, Respondent, v. James L. ROUSH, Appellant.
• Court: Oregon Supreme Court

Page 162

544 P.2d 162

273 Or. 877

DAVID M. SCOTT CONSTRUCTION CORP., an Oregon Corporation, Respondent, v. James L. ROUSH, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 8, 1975.

Decided Dec. 26, 1975.

Frank V. Langfitt III, Portland, argued the cause for appellant. With him on the brief were Howard R. Hedrick, and Hedrick, Fellows, McCarthy & Zikes, P.C., Portland.

Robert D. Herndon of Ringle & Herndon, Gladstone, argued the cause and filed a brief for respondent.

BRYSON, Justice.

Plaintiff brought this action on a written earnest money agreement to recover an overpayment on the purchase price for certain land. The trial court found in favor of plaintiff and entered judgment accordingly. Defendant appeals.

The parties executed an earnest money agreement and addendum wherein plaintiff agreed to purchase 8.392 acres in Washington County to subdivide for residential purposes. Both parties are licensed real estate brokers and at the time of signing the agreement they knew that the City of Beaverton was widening S. W. Murray Road, which adjoins the east boundary of the property involved. For this reason the agreement provided:

'(1) $6,950.00 per net acre to be exclusive of present and future rights of way requirements on Murray Road.

'* * *.' (Hereinafter Item (1).)

Before closing the transaction, plaintiff determined that the City of Beaverton would, as a condition of approving the land for subdividing, require the dedication of a 13-foot strip of land along Murray Road and within the 8.392 acres for public road purposes, without compensation. Based on the total purchase price, this 13-foot strip, containing .175 of an acre, had a value of $1,216.25. Plaintiff tendered the total purchase price less any sum for the .175 of an acre. Defendant demanded payment for the full 8.392 acres. Plaintiff then tendered the additional $1,216.25 'under protest' and defendant conveyed the property to plaintiff by deed. Plaintiff's complaint seeks recovery of the $1,216.25.

Prior to trial, the parties stipulated:

'1. That if a surveyor were called to testify to the acreage in the tract described in plaintiff's complaint that he would testify that the entire tract contains 8.392 acres and that the surveyor would further testify that less the disputed 13 foot strip the tract contains 8.217 acres for a difference of .175 acres.

'2. That utilizing the acreage of 8.217 acres the purchase price was $57,108.15 and utilizing the acreage of 8.392 acres the purchase price was $58,324.40. That the difference of .175 acres amounts to a difference in the purchase price of $1,216.25.

'3. That plaintiff did tender the disputed $1,216.25 for the deed under protest.

'* * *.'

The trial court found that defendant was 'aware that plaintiff was purchasing on a net acreage basis' subject to Item (1) in the contract; 'that defendant knew or should have known at the time of entering into the contract that the City of Beaverton plans called for the taking of an additional 13 feet for the widening of Murray Road and that the city would require the dedication of such 13 foot strip as a condition of filing a subdivision plat' and '(t)o simply determine the net acreage on the boundaries then in existence (sic) would in effect ignore the condition above quoted.'

Defendant contends that the trial court erred in finding that the purchase price of the parcel was to be computed on the basis of 8.217 'net' acres. The case was tried without a jury. The sole issue on appeal is whether there is any substantial evidence to support the trial court's findings. Jorritsma v. Farmers' Feed & Supply, 75 Or.Adv.Sh. 2525, 2525--26, 538 P.2d 61 (1975). Further, since Item (1) of the earnest money agreement and addendum is ambiguous, its meaning is a matter decided by the trier of the facts when, as here, extrinsic evidence is received. Hekker v. Sabre Construction Co., 265 Or. 552, 555, 510 P.2d 347 (1973); Rolfe v. N.W. Cattle & Resources, Inc., 260 Or. 590, 600--01, 491 P.2d 195 (1971); May v. Chicago Insurance Co., 260 Or. 285, 292--94, 490 P.2d 150 (1971).

The record shows that defendant read the earnest money agreement and addendum and was aware of its terms. The record also shows that defendant was familiar with the difficulties confronted by developers in obtaining approval of proposed subdivision plans.

On cross-examination, defendant testified:

'Q. Well, the net acre to be exclusive of present and future rights of way requirements on Murray Road, what did that particular clause mean to you?

'A. However wide that road was, that is what it would...