Hodecker v. Butler

• Decision Date: 03 August 1983
• Docket Number: No. 30360,30360
• Citation: 667 P.2d 540,64 Or.App. 167
• Parties: Willetta E. HODECKER, Appellant, v. Robert C. BUTLER and Hub Real Estate, Inc., Respondents. ; A26371.
• Court: Oregon Court of Appeals

Page 540

667 P.2d 540

64 Or.App. 167

Willetta E. HODECKER, Appellant, v. Robert C. BUTLER and Hub Real Estate, Inc., Respondents.

No. 30360; A26371.

Court of Appeals of Oregon.

Argued May 20, 1983.

Decided Aug. 3, 1983.

Edward P. Fitch, Redmond, argued the cause and filed the brief for appellant.

Stanley E. Clark, Redmond, argued the cause for respondents. With him on the brief was Clark & Clark, Redmond.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

NEWMAN, Judge.

Plaintiff appeals from a summary judgment for defendants. We reverse in part and affirm in part.

Plaintiff's first claim alleged that she signed an earnest money agreement with defendant Butler and his wife, that Butler promised to pay plaintiff $5,000 as earnest money and gave her a note for the earnest money, that the sale of the house was to close on or before April 1, 1981, that the title of the property was marketable, but that Butler refused to close, and that the earnest money of $5,000 should be forfeited to plaintiff.

As a third claim plaintiff alleged that the earnest money was in the form of a $5,000 promissory note executed by Butler that was due but not paid.

As a second claim plaintiff alleged alternatively that defendant Hub Real Estate, Inc., (Hub) acted as agent for plaintiff in the preparation of the earnest money agreement, that due to a mutual mistake the earnest money agreement contained an erroneous description, that Hub had a duty to exercise reasonable care to accomplish the object of its employment and breached that duty in the preparation of the earnest money agreement and that, if defendant Butler is not obligated to pay the earnest money, then plaintiff has suffered damages in that amount as a result of Hub's negligence.

The earnest money agreement provided that plaintiff would sell Butler lots 7, 8 and 9 in block 6 and that:

"If the title of the said premises is not marketable, or cannot be made so within 30 days after notice containing a written statement of defects is delivered to the seller, having approved said sale fails to consummate the same, the earnest money herein receipted for shall be refunded * * *. If the said sale is approved by the seller and title to said premises is marketable, and the purchaser neglects or refuses to comply with any conditions of sale within ten (10) days from the furnishing of a preliminary title report, or make payments promptly as set forth on the reverse side hereof, then the earnest money and additional earnest money receipted for on the reverse side hereof shall be forfeited * * *."

Defendant Butler decided before the closing date not to close the purchase. He was moving to another city and did not want the house. When he told plaintiff, she brought this action.

Butler learned after plaintiff's action was filed that plaintiff owned Lots 7 and 8, but only a portion of Lot 9, and could not acquire the balance of Lot 9 before closing. Plaintiff, he argues, could not therefore deliver marketable title to the property. Plaintiff, in response, claims that defendants knew that she owned Lots 7 and 8 and only a portion of lot 9 and that the description in the earnest money receipt was inaccurate due to a mutual mistake. She argues that the transaction was only to sell and buy what she owned.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Seeborg v. General Motors Corporation, 284 Or. 695, 588 P.2d 1100 (1978). We review the record and draw all inferences from the pleadings, affidavits and other supporting material in the light most favorable to the party opposing the motion. Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978). This is also true as to those issues on which the opposing party would have the burden of proof at trial. Seeborg v. General Motors Corporation, supra, 284 Or. at 699, 588 P.2d 1100.

Plaintiff contends that the court erred in granting summary judgment on the first and third causes of action, because there are genuine issues of material fact. We agree. In Liddycoat v. Ulbricht, 276 Or. 723, 556 P.2d 99 (1976), the buyers sued the sellers for damages for breach of the covenant of title in a warranty deed. The deed covered lot 5 and also part of lot 6 described by metes and bounds. Both parties thought that the northern boundary of that part of lot 6 was along a line of rose bushes. In fact, the rose bushes were south of the boundary line described in the deed. After the purchase the plaintiffs measured the property, found that the rose bushes were several feet short of the boundary line described in the deed and claimed the property beyond the rose bushes. The plaintiffs' neighbor claimed that he owned the strip north of the rose bushes by adverse possession and sued successfully for damages for trespass. The plaintiffs then sued the defendants, their sellers. The court found that the plaintiffs and defendants were laboring under a mutual mistake and did not know that the property covered by the deed was greater than that...