Kern v. Feller

• Decision Date: 14 April 1914
• Citation: 70 Or. 140,140 P. 735
• Parties: KERN v. FELLER.
• Court: Oregon Supreme Court

140 P. 735

70 Or. 140

KERN v. FELLER.

Supreme Court of Oregon

April 14, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; F. M. Calkins, Judge.

Action by Albert E. Kern against Francis Feller for the sum of $3,400.From an involuntary judgment of nonsuit, plaintiff appeals.Affirmed.

Thos. O'Day and J. M. Haddock, both of Portland, for appellant.J. H. McNary, of Salem, and H. J. Bigger, of Portland, for respondent.

RAMSEY J.

On June 21, 1912, the defendant was the owner of a tract of 200 acres of land in Marion county, which is described in the complaint.On said 21st day of June, 1912, the defendant entered into a written contract with the United Securities Company, a partnership, consisting of B. N. Garrett and H. H Hoffman.The second and third paragraphs of said contract are as follows:

"Second.That for and in consideration of one dollar ($1.00) cash in hand paid by the agent, receipt of which is acknowledged and confessed by the owner, the owner hereby appoints constitutes and empowers the agent as his sole and exclusive agent to plat or divide, or subdivide said lands in a town site, with streets and alleys, etc., at the option of the agent, and to offer for sale, and to sell the town lots therein to any one whomsoever, and upon any terms that the agent may see fit; provided, that no lot in said town site shall be sold for less than fifty dollars ($50.00).The owner agrees that upon the payment of fifty dollars (50.00) in cash that he will execute a good and lawful title to the lot purchased to the purchaser thereof.

"Third.It is agreed and warranted by the agent that the owner shall receive the sum of two hundred and twenty-five dollars ($225.00) per acre for said land, and that the owner shall receive from the sale of said lands, or otherwise, a sum not less than one thousand dollars ($1,000.00) within ninety days from the date of this contract, and an additional sum of one thousand dollars ($1,000.00) within five months, and an additional sum of one thousand dollars ($1,000.00) within six months, an additional sum of three thousand dollars ($3,000.00) within twelve months, an additional sum of three thousand dollars ($3,000.00) within eighteen months, an additional sum of three thousand dollars ($3,000.00) within twenty-four months an additional sum of three thousand dollars ($3,000.00) within thirty months, and the entire balance of the purchase price within three years from the date of this contract, and that when the agent has paid, or caused to be paid, to the owner said sum, the owner will then and thereupon deed to the agent, or to the agent's clients, at the option of the agent, all lands remaining in the said tract not already deeded under the terms of this contract.All deferred payments to bear interest at the rate of six (6) per centum per annum.Said interest payable annually."

After alleging the execution of said contract, the plaintiff alleges that said securities company caused a plat of said lands into lots and blocks to be made, and presented the same to the defendant for dedication on July 10, 1912, and that the defendant and his wife duly executed a dedication for said land, and dedicated to the public use the streets, etc., marked on said plat, and that said proposed town was designated on said plat as Armstrong, Marion county, Or.The complaint alleges, also, that said securities company, on September 11, 1912, assigned said contract to the Armstrong Townsite Company, a corporation.The complaint further alleges that said assignment was made with the knowledge and acquiescence of the defendant, and that the defendant accepted said Armstrong Townsite Company as his agent, under the terms of the contract previously made by the defendant with the securities company, as stated supra.The complaint alleges, also, that said Armstrong Townsite Company, as agent of the defendant, on August 24, 1912, sold to the plaintiff lots 13 and 14 in block 34, of said Armstrong for the sum of $1,100, which the plaintiff paid to said company, agent of the defendant, and said agent, designating itself as seller, agreed to cause to be executed to the buyer a good and sufficient warranty deed together with a complete abstract of title to said property; that the deed to said lots was to be furnished as soon as necessary details were completed.The complaint alleges, also, that on September 17, 1912, said Armstrong Townsite Company sold to the plaintiff lots 24, 25, 26, and 27, in block 36 in Armstrong for $2,300, which the plaintiff paid to said agent, and that, in the said contract of sale, it was agreed that a deed was to be issued to the plaintiff, not later than 30 days from the date of said contract of sale.The complaint alleges, also, that the plaintiff, relying upon said contract and upon the fact that a deed would be issued to him, conveying a good and sufficient title, clear of incumbrances, purchased said lots and paid the purchase price therefor, as stated supra.The complaint alleges, also, the facts to be that the plaintiff demanded a deed to said lots, to wit, at the time the deed was to be issued to him in accordance with said contract; but that the defendant herein has refused and does still refuse to issue a deed to the plaintiff for said lots, or either of them.The complaint alleges, also, that the defendant refused to permit said plat of said proposed town of Armstrong to be filed for record in the office of the county clerk of Marion county; that there is, by reason of the defendant's refusal to permit said plat to be filed in the office of the county clerk of Marion county, no public record in Marion county, or at all, of the lots, blocks, or either of them mentioned in said plat; and that the defendant, or his agent, is unable to show an abstract, designating said property, or any of the lots and blocks in said Armstrong; and that without said plat being filed for record in the office of the county clerk of Marion county, Or., no good and sufficient title to said property can be conveyed to this plaintiff; and that, upon the failure of said defendant to make and execute a deed for the property hereinbefore mentioned, the plaintiff elected to rescind his contract of purchase of said lots and demanded of the defendant the return of the purchase price of said property, to wit, the sum of $3,400, which the defendant has refused, neglected, and still refuses to pay; that, by reason of the facts herein alleged, there is due from the defendant to the plaintiff the sum of $3,400, and interest thereon from October 20, 1912.The complaint demands judgment against the defendant for said sum and interest.

The answer of the defendant denies most of the allegations of the complaint and sets up affirmative matter, which was denied by the reply.When the evidence in behalf of the plaintiff was in, on motion of the defendant, the trial court rendered against the plaintiff a judgment of nonsuit, on the ground that the plaintiff's evidence failed to make out a prima facie case for the plaintiff.

The evidence shows that on August 24, 1912, the Armstrong Townsite Company, for the alleged consideration of $1,100, entered into a written agreement with the plaintiff, whereby said company agreed to sell and convey, and the plaintiff agreed to purchase, lots 13 and 14 of block 34, of said town of Armstrong.This agreement recited that the plaintiff had paid said $1,100, and that said contract was executed in lieu of a deed, and that a deed was to be issued as soon as necessary details should be completed, but it does not state what those "details" were.This contract was executed by said company, and the plaintiff, and it does not refer to the defendant in any manner.It was executed under the seal of said company, and it does not purport to have been executed by an agent.It was executed before the execution of the assignment by the securities company to the Armstrong Townsite Company, referred to infra.

The Armstrong Townsite Company and the defendant on the 17th day of September, 1912, entered into another written contract of the same form as the one described supra, by which said company agreed to sell and convey, and the plaintiff agreed to purchase, for the consideration of $2,300, lots 24, 25, 26, and 27 in block 36 of Armstrong.This contract recites that the plaintiff had paid said consideration, and that said contract was given in lieu of a deed, but that a deed was to be issued not later than 30 days from the date of said contract.This contract neither mentions nor refers to the defendant, and it does not purport to have been executed by an agent.Both of said contracts provide that the seller shall cause a good warranty deed to be executed to the buyer for said lots, and also furnish a complete abstract of title, when the buyer has fulfilled all of the conditions of said contracts.

On September 11, 1912, the United Securities Company executed to the Armstrong Townsite Company a written assignment of which the following is a copy (omitting the date and signatures and names of the witnesses): "For and in consideration of one ($1.00) dollar and other valuable considerations, to us in hand paid this day (September 11 1912) by the Armstrong Townsite Company, receipt of which is hereby acknowledged, we, the undersigned B. N. Garrett and H. H. Hoffman, doing business under the firm name and style of United Securities Company, do hereby sell, assign and set over to said Armstrong Townsite Company, an Oregon corporation, all our right, title and interest in and to that certain option and contract of purchase to a certain two hundred (200) acre tract of land from one Francis Feller of Woodburn, Oregon, dated June 21, 1912, and hereby relinquish to said corporation any claim,...