Fluhrer v. Bramel

Decision Date29 March 1938
Citation77 P.2d 824,158 Or. 694
PartiesFLUHRER v. BRAMEL et al. [*]
CourtOregon Supreme Court

Department No. 2.

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

Suit by F. W. Fluhrer against W. E. Bramel and others to rescind a contract whereby plaintiff was to purchase a building. From a decree in favor of plaintiff, and enjoining defendants from paying over the purchase money or delivering plaintiff's note to the named defendant, the named defendant appeals.

Affirmed.

O. G. Larson, of Portland, for appellant.

S. J Bischoff, of Portland (Bischoff & Bischoff, of Portland, on the brief), for respondent F. W. Fluhrer.

B. G Skulason, of Portland (Skulason & Skulason, of Portland, on the brief), for respondent Ray W. Wenger.

RAND Justice.

This is a suit for the rescission of a contract for the purchase and sale of a building occupied as a service station and lunch room and of the fixtures and stock of goods therein. The contract was entered into between the plaintiff and the defendant W. E. Bramel on or about June 1, 1936, and, in and by its terms, the plaintiff agreed to buy and the defendant to sell said property for the sum of $5,500. The building stands on premises belonging to one Joseph Weber, and these premises are located on Macadam road just north of the west end of the Sellwood bridge in Multnomah county, Or.

On May 10, 1928, Weber demised these premises to one Conway for a term of ten years for an agreed rental during the time involved in this controversy of $15 per month. Shortly after the making of said lease, Conway, with Weber's consent assigned the lease for the remainder of the term to the defendant Bramel, and he erected said building on the premises and, at the time this controversy arose, was occupying the same as a filling station and lunch room and claimed to be the owner of the building by virtue of some undisclosed agreement with the landlord.

Desiring to sell the property, Bramel, in May, 1936, employed the defendant Wenger, who was doing business as a broker under the trade-name of Fidelity Brokerage Company, and authorized him to contract for the sale of said property for the sum of $5,500 and, upon his finding a purchaser ready and willing to pay said sum, Bramel agreed to pay Wenger the sum of $500 as commission therefor. Under his said employment, Wenger advertised the property for sale and the plaintiff, who resides in Columbia county, went to Wenger's office in Portland and consulted with him in regard to the property. He then visited the property and talked with Bramel and, at that time, was informed by Bramel that he was holding under a lease which then had but 22 months to run. The plaintiff informed Bramel that he was looking for a location for his son, who was then out of employment, to engage in business, and that a lease on the premises for 22 months only would not justify the expenditure of so large a sum for the purchase of the property. Whereupon Bramel informed the plaintiff that, if he would purchase the property for $5,500 and pay $3,000 thereof in cash and execute a promissory note for $2,500, bearing interest at 7 per cent per annum, payable in monthly installments of $50 each plus accrued interest, he could and would procure from Weber an extension of the lease for an additional 3 years upon the same terms as were provided in the original lease. Plaintiff then returned to Wenger's office and entered into an agreement with Wenger that he would pay Wenger $250 in cash and the additional sum of $2,750 upon Bramel's obtaining from Weber an extension of the lease for a period of 3 years, and it was agreed between them at that time that Wenger would retain all moneys paid him until Bramel secured the extension and, if he failed to do so would return the money to the plaintiff. With said understanding, the plaintiff paid Wenger said sum of $250.

On June 9, 1936, Wenger wrote...

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4 cases
  • Kelly v. Tracy
    • United States
    • Oregon Supreme Court
    • December 19, 1956
    ...156 P. 260; Duniway v. Cellars-Murton Co., 92 Or. 113, 170 P. 298, 179 P. 561; Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47, 73 P.2d 265, 77 P.2d 824; Lewis v. Shook, 182 Or. 483, 188 P.2d 148; 4 C.J.S., Appeal and Error, § 212, p. 396. In this case, however, the defendant deposited the stock......
  • Morrison v. Kandler
    • United States
    • Oregon Supreme Court
    • December 10, 1958
    ...extended far beyond its mere protection.' To the same effect is the case of Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47, 73 P.2d 265, 77 P.2d 824. In this case a suit was commenced to rescind a contract involving the purchase and sale of a service station. The trial court granted rescission ......
  • Miller v. Barker
    • United States
    • Oregon Supreme Court
    • December 31, 1962
    ...the early strict rule of Kellogg and Lange is recognized in the later cases of Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47, 73 P.2d 265, 77 P.2d 824 (1938); and Lewis v. Shook, 182 Or. 483, 188 P.2d 148 Fluhrer was an action for rescission of a contract for the sale of a service station. The......
  • Pacific General Contractors v. Slate Const. Co.
    • United States
    • Oregon Supreme Court
    • December 3, 1952
    ...of the judgment appealed from see, Lange v. Devlin, 80 Or. 238, 156 P. 260, and Fluhrer v. Bramel, 158 Or. 694, 72 P.2d 47, 73 P.2d 265, 77 P.2d 824. We do not have here a judgment with several provisions. Whether the rule applicable to such a judgment can ever be invoked, where the evidenc......

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