Jackson v. Stearns

• Decision Date: 07 February 1911
• Citation: 113 P. 30,58 Or. 57
• Parties: JACKSON v. STEARNS.
• Court: Oregon Supreme Court

113 P. 30

58 Or. 57

JACKSON v. STEARNS.

Supreme Court of Oregon

February 7, 1911

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by C.S. Jackson against A.W. Stearns. From a judgment for the defendant, plaintiff appeals. Affirmed.

This is an action by C.S. Jackson against A.W. Stearns to recover damages resulting from the breach of an agreement. The facts are that plaintiff, an attorney, prepared duplicate copies of a contract wherein it was stipulated that if he could secure a decree quieting the defendant's title to 320 acres of land, describing the premises, and would advance the court expenses, if so required, the defendant, in consideration thereof, would execute to him a good and sufficient deed to one-half of the real property so obtained. The plaintiff subscribed his name to the writings and sent them by mail to the defendant, and thereupon began in the proper court a suit in which Stearns was plaintiff and the parties asserting title to such lands were defendants, alleging in the complaint that the deed executed to them by Stearns was intended as security for the payment of a debt and praying that the mortgage be canceled. Issue having been joined plaintiff wrote defendant that the cause had been referred in order to take the testimony. Upon the receipt of such information, the following letter was written "Canyonville, Ore., Oct. 26, '04. C.S. Jackson. Dear Sir:--I received your letter and agreement, and you did not state whether your would stand good for Ira B. Riddle taking the evidence. If you will pay him I will sign the agreement and send it down. Please let me know as soon as possible. Yours respectfully, A.W. Stearns." In reply Jackson wrote, inter alia, as follows: "Yes; I will advance Mr Riddle his costs, and please insert it in the contract and return my copy to me." Stearns did not sign either copy of the contract, but upon the receipt of $300 from the adverse parties, he, without plaintiff's consent dismissed the suit. Thereafter this action was commenced, the complaint stating in substance the facts as hereinbefore detailed, and averring that by reason of dismissing such suit plaintiff had been damaged in the sum of $4,500; that he had performed all the conditions of the contract required of him and would have recovered the lands, but was prevented from doing so by the wrongful acts of the defendant; that plaintiff was at all times ready, able, and willing to prosecute such suit to final termination and to recover the lands, the reasonable worth of all of which is $9,000, and the value of the part agreed to be conveyed to plaintiff for his services is $4,500; and "that by reason of defendant's wrongful acts he has unjustly enriched himself and the plaintiff has suffered great damage and loss in the sum aforesaid, which plaintiff alleges to be reasonable compensation for said services." Judgment is demanded for the sum of $4,500.

The answer admits that plaintiff is an attorney; that defendant retained him to perform the services specified; and that pursuant to such employment plaintiff instituted in the proper court the suit referred to, which defendant caused to be dismissed. All the other averments of the complaint are denied, and for a further defense it is alleged that plaintiff and defendant entered into negotiations with a view of making a contract whereby plaintiff was to receive a deed for the east half of the particular 160 acres described in the complaint; and that no writing or memorandum was ever signed by defendant or by any person on his behalf, respecting such negotiations, in consequence of which the verbal understanding referred to in the complaint as a contract is void. A reply having put in issue the allegations of new matter in the answer the cause was tried, but the jury, failing to agree, were discharged. The parties hereto thereupon stipulated that the testimony taken at that trial, supplemented by the depositions of certain witnesses, should be submitted to the court, which, considering the evidence, found the facts in effect as stated hereinbefore and as a conclusion of law based thereon found, inter alia, as follows: "The contract sued upon is for the conveyance of real property, and in order to be valid it must be shown to have been in writing and signed by the defendant. The evidence failing to show that defendant signed the alleged contract the plaintiff cannot recover in his action"--and from a judgment rendered in accordance therewith the plaintiff appeals.

C.S. Jackson, for appellant.

A.N. Orcutt, for respondent.

MOORE J. (after stating the facts as above).

The question to be considered is whether or not the conclusion of law quoted is deducible from the facts as found. As a matter preliminary to a determination of the inquiry attention will be called to certain clauses of our statute: "No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law." L.O.L. § 804. "In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: *** 6. An agreement *** for the sale of real property, or of any interest therein." Id. § 808.

It will be remembered that Jackson signed duplicate copies of the contract which he mailed to Stearns, but the defendant never subscribed his name to the writing, and no memorandum was executed by him unless it can be said that his letter of October 26, 1904, when read in connection with other correspondence is sufficient to answer the requirements of the statute of frauds. In the communication referred to Stearns promised to sign the agreement if Jackson would pay the referee's fees. The plaintiff's answer pre-supposes an insertion in the contract of his consent to advance such fees, a provision which, in substance, was originally included therein. It will thus be seen that both parties intended some affirmative acts should be performed by Stearns before the contracts would become effective.

Separate writings exchanged by parties and relating to the same subject-matter cannot constitute a contract between them unless it was then their intention that an agreement should be consummated by their correspondence. Bishop, Cont. (2d Enl. Ed.) § 165. The writings stipulated that Jackson should receive from Stearns a deed conveying one-half of all the lands for which a decree quieting the title could be secured. The complaint avers that the land thus agreed to be granted to plaintiff for his services is a particular 160 acres, which is a variance, while the answer alleges that the part promised by defendant was only the east half of such quarter section. As the contract did not specify the particular land which plaintiff was to receive and as an issue was joined in respect to the tract which he asserts was to have been conveyed to him, and that which the defendant claims was promised, oral evidence was necessary to substantiate the truth of the matter, and in such cases the writings cannot be read together so as to constitute a contract between them. 12 Enc.Ev. 16; 2 Page, Cont. § 688; Longfellow v. Huffman, 112 P. 8. We conclude, therefore, that no written contract was effectuated by the parties.

It is maintained by plaintiff that the services which he agreed to perform were to have been compensated by a conveyance of land, and such being the case the value of the premises is the measure of the damages which he sustained in consequence of the defendant's conduct. Some of the cases relied upon to support the legal principle asserted will be examined. In Jack v. McKee, 9 Pa. 235, the declaration alleged that a parol agreement was entered into whereby defendant's testator, in consideration that plaintiff would continue to live at and take care of his house until he died, he would give her a certain piece of land; that pursuant thereto she performed the service, but the testator did not keep his part of the agreement, and devised the premises to others. In a suit to recover the value of the services on a breach of the contract it...