Jenkins v. Jenkins

• Decision Date: 03 June 1913
• Parties: JENKINS v. JENKINS.
• Court: Oregon Supreme Court

132 P. 542

66 Or. 12

JENKINS v. JENKINS.

Supreme Court of Oregon

June 3, 1913

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Action by Jay Jenkins against Samuel F. Jenkins. From the decree defendant appeals. Affirmed.

Plaintiff brings this suit for an accounting and dissolution of a copartnership between plaintiff and defendant. Defendant denies the partnership, and alleges that plaintiff and defendant are brothers, that on the 29th day of June, 1911 without any consideration therefor, defendant executed and delivered to plaintiff a deed of conveyance of an undivided one-half interest in his farm consisting of one quarter section in Harney county, Or., and a bill of sale of an undivided one-half interest in certain personal property on the farm; each instrument reciting the consideration of $1. The circuit court rendered a decree for an accounting and dissolution of the partnership, and defendant appeals.

The facts necessary for a determination of this case are as follows: In 1889 defendant, Samuel F. Jenkins, settled upon the quarter section of land on Calamity creek, in Harney county, Or., as a homestead and obtained title therefor from the government of the United States. He has since resided upon the land and is of the age of 64 years. Plaintiff, J Jenkins, had been engaged as foreman in a coffee house in Chicago for about 30 years, and at the time he changed his residence was receiving a salary and commission amounting to some over $100 per month. About September, 1910 plaintiff's wife came from Chicago on a visit to defendant at his ranch, and it was planned that she and her husband should come to Oregon to reside with defendant partly on account of their health. She had the asthma, and it was thought that outdoor life would be conducive to plaintiff's health. Defendant returned to Chicago with Mrs. Jenkins to visit his brother, Jay Jenkins, and the matter of their moving to Oregon was thoroughly discussed. Plaintiff asked for what sum he would sell a one-half interest in his farm, stock, machinery, tools, etc. Defendant answered that he would not sell an interest therein, but that he would give his brother an undivided one-half interest in the land, stock, etc., if his brother and wife would come to Oregon and live with him for at least five years, and improve and cultivate the ranch during that time. Plaintiff asserts that the conveyance of the land and the transfer of the personal property were made as an absolute gift, in contemplation of a partnership entered into between them for the purpose of farming. While in Chicago they purchased a portable sawmill and tools for $235, to be used on the farm; plaintiff paying for the same. In November, 1910, plaintiff and wife returned to Oregon with defendant, bringing their household goods, and the machinery and tools, and moved to the farm in question. Both parties proceeded to work upon the land, repair the buildings, set up the sawmill, and run the same. All went smoothly between the brothers for a time until August, 1911, when the mill failed to saw the lumber of uniform thickness, and perplexities arose which resulted in a quarrel.

Jay Jenkins, plaintiff, testifies that it was the intention to run the ranch together and to pay defendant's indebtedness and expenses from the produce of the farm; that the question of "profit and loss was not brought up."

On April 12, 1911, before the time of the quarrel, plaintiff requested defendant to execute some contract, in order that he and his wife might not be ejected from the place in case of the death of the defendant. Plaintiff prepared, and they both signed, the following contract: "Oregon, Van., Apr 12-11. To Whom It May Concern: This is to certify that I, Samuel F. Jenkins, being of sound mind & memory, I enter into and agreement whereby I give to my brother J. Jenkins one-half interest in my ranch, farming implements, stock and all buildings. Thereon at the time of this agreement my ranch is known as west half of the south west quarter of section thirty-four in township eighteen south and the lots number three and four of section three in township nineteen south of range thirty-three and one-half east of Willamette meridian in Oregon containing one hundred and sixty-one and eighty hundredths of an acre I made this agreement of my own free will and accord. Proper & legal documents will be recorded as soon as we can go to Burns the county seat. The following outstanding debts which I owe at this date to be payed by what is produced on the farm or ranch: Chas. Johnson $100.00. Burns Bank $400.00. [ Signed] S.F. Jenkins. Jay Jenkins." At the time of the execution of the bill of sale and deed mentioned, plaintiff had written to an attorney for advice. Both parties went to Burns, where plaintiff informed the attorney in substance as indicated in the preliminary agreement, and the bill of sale and deed were prepared and executed. Plaintiff testifies that, at the time the matter was stated to the attorney, the latter said "that we would have a warranty deed drawn up, and went to work and drawn up the warranty deed, and he wanted to know what the consideration was, and I asked him if we had to have all the agreement stated in the warranty deed, and he said no, he said as soon as we had a consideration why it was all that was necessary." Plaintiff claims that the only consideration for the conveyance of the property was that he and his wife should move to defendant's ranch. He says, "I came to Oregon positively on the proposition that my brother made to me, that he would give me a one-half interest in his ranch if I would move out," and asserts that that was the only consideration moving from plaintiff at that time. Defendant testifies that the arrangement was that plaintiff and his wife should stay at the ranch and help cultivate and improve the same for at least five years, after which time, if they so desired, they would sell everything and divide equally; that he signed the preliminary agreement to keep peace in the family; that he had never executed a deed before the one in question; that he supposed he was signing a bill of sale. The land is alleged to be of the value of $4,000, and the personal...