King v. Holbrook

• Decision Date: 21 January 1901
• Citation: 38 Or. 452,63 P. 651
• Parties: KING v. HOLBROOK.
• Court: Oregon Supreme Court

63 P. 651

38 Or. 452

KING v. HOLBROOK.

Supreme Court of Oregon

January 21, 1901

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Bill by A.N. King against C.A. Holbrook. From a decree in favor of defendant, plaintiff appeals. Affirmed.

Benton Killin and C.A. Cogswell, for appellant.

G.H Durham and Thos. O'Day, for respondent.

WOLVERTON J.

Plaintiff seeks to reform an agreement entered into between himself and the defendant, June 23, 1898, which contains a stipulation that it shall be treated as a part of a deed of the same date from him to the defendant. The complaint proceeds upon the theory that there has been a mutual mistake as respects one of the conditions of the agreement, which requires that North Twenty-First street shall be opened to travel along the east line of the granted premises, it being alleged that it was the true understanding and agreement of the parties that the land lying east of the tract conveyed should remain open only from the north side thereof to a point 108 feet from West Salmon street, and that, when said street shall be extended by the city authorities over the tract so agreed to be used as a way, it should be without expense to the defendant. Holbrook purchased the tract of land referred to for T.B. Wilcox, which is bounded on the south by West Salmon street, and on the east by North Twenty-First street of the city of Portland, if extended southerly to an intersection with said West Salmon street. The principal factors in the negotiations leading to the purchase were I.W Baird, acting for the defendant, and E.A. King, a son of the plaintiff, acting for him. Among the details of the transaction was an understanding that the defendant should remove from the premises a stock barn, and the plaintiff a house which stood partly upon the premises and partly within North Twenty-First street, if extended, and the matter of opening up said street, in part, at least, so as to give access to the property, was discussed. A writing was drawn up and executed by the parties, they signing by their respective agents, and it is upon this writing that the alleged mutual mistake is predicated. It recites that "whereas, Amos N King and wife have this day sold and conveyed to C.A Holbrook a certain tract of land in the city of Portland, Oregon, at the corner of King and Salmon streets, and particularly described in our deed therefor, to which reference is made: Now, in consideration of the premises, it is mutually understood and agreed by and between the said parties that the said grantee shall, with all convenient dispatch, remove from the said granted premises the old stock barn now standing thereon, to the end that the said King may dismiss his suit against the city of Portland relating to said barn with safety to himself; that the said King shall, with like convenient dispatch, remove from said premises, and the lot adjoining the same immediately on the east, the old dwelling house occupied by a family named Smith as a residence; and that North Twenty-First street shall be opened to travel so far as the same bounds the granted premises on the east, so that the grantee in said deed may have access to that side of the granted lands, and that, when such street is extended and dedicated, it shall be done without charge to the said grantee above named. This instrument shall not be recorded, but, as between the parties, shall be treated as part of the said deed." The testimony is conflicting, the principal witnesses being the factors or agents of the respective parties who conducted the negotiations in the main. Mr. E.A. King testified, in effect, that he was agent for his father for the sale, disposition, and management of the property; that he dealt with Baird, and knew no one else in the transaction; that the negotiations were in progress a month or such matter; that all the talk was that the 108 feet northerly from Salmon street should be a lot, and that the street in front of the property should be opened up to that point, and no further; that after they had come to an understanding a survey was made; that during the negotiations he gave Mr. Baird a map, which shows, by a white line across North Twenty-First street, if extended 108 feet northerly from West Salmon street, that the space thereby set off was intended to be a lot, not to be opened as a part of the street, and Baird so understood it; that during the negotiations they went upon the lot, and he was shown around it to within a few feet of the corner; that the locality was discussed as being a sightly one for Holbrook to build upon, and there was never any direct talk of extending the street over the lot; that a stock barn stood upon the land deeded to Holbrook, and a house partly upon it and partly upon the lot in dispute; that the west half of the lot belongs to his father, and the east half to himself and brother; that they came to an agreement a day or so before June 23d, and the terms as finally concluded were that King was to sell to Holbrook the property as designated upon the map, Holbrook to remove the barn and King the house, and the street was to be opened to within 108 feet of West Salmon street, the consideration being $15,000; that subsequently Baird presented to him the written instrument, which he examined, and refused to sign; that witness then showed it to Judge Moreland, who told him it would do no harm to sign it, and that he had it in his possession a very short time prior thereto; that, after the agreement was executed and the transaction closed, Baird wanted an option to sell the lot in dispute, stating that he thought he could dispose of it to Holbrook, and, after some discussion, witness gave him a verbal option of 30 days to sell it for $4,000, he to make his commission above that figure; that he afterwards came into the office, said he was working upon a sale, and thought he would make it go. The area of the lot is 60 by 108 feet. Witness further stated that he never agreed to open up the street to West Salmon street, and never would have signed the paper if he had known or understood that it was so stipulated; that during the negotiations Baird wanted half the street clear to Salmon street included in the deed, but the witness would not accede to it. On cross-examination he testified that he was to pay Baird a commission on the sale; that he insisted all the time that he would not open the street any further than to within 108 feet of West Salmon street, and Baird was insisting that it should be opened through; that he wanted a deed to half the street, as he termed it, and witness would not accede to that proposition; that Baird presented the written agreement to him after the trade was consummated, and thinks, but is not sure, it was after all the money had been paid; that it was not handed to him the day before the deed was finally passed over to Baird; that he refused to sign it, because he did not think it needed any written agreement for the purpose of removing the barn and house and the...