"(1)
On the 17th of April, 1889, the plaintiff and defendants
made an agreement that, if the plaintiff, who was a
real-estate agent, would sell for the defendants a certain
tract of land containing two hundred and fifty acres, owned
by them, they would pay him two hundred and fifty dollars
for his services in making such sale. There was no time
stated in this agreement wherein this sale was to be made.
"(2)
On the 17th of April, 1889, the plaintiff began
negotiations with one E.C. Kane for the sale of said land
to him, and as the result of said negotiations Kane orally
agreed to purchase the land at the price, and, upon the
terms, as set out in the written agreement, which is
incorporated in the third finding of facts herein. It was
admitted upon the trial that Kane was able to purchase this
land.
"(3)
Plaintiff prepared a written agreement containing the terms
of the proposed sale, which the defendant signed. Kane did
not sign this agreement, though he was willing to do so
afterwards thought he had signed it, and it was through an
oversight, and for no other reason, that he did not sign it.
The agreement is as follows: 'Articles of Agreement for
Warranty Deed. Articles of agreement made this 17th day of
April in the year of our Lord eighteen hundred and
eighty-nine, (1889,) between Chas. G. Rippey and Frank Amy
both of Central Point, Jackson county, Oregon, parties of the
first part, and E. C. Kane, of Ashland, Jackson county
Oregon, party of the second part, witnesseth: That the said
parties of the first part hereby covenant and agree that, if
the party of the second part shall first make the payments
and perform the covenants hereinafter mentioned on his part
to be made and performed, the said parties of the first part
will convey and assure the party of the second part in
fee-simple, clear of all incumbrances whatsoever by a good
and sufficient warranty deed and abstract of title, the
following lot, piece, or parcel of ground, viz.: The west two
hundred and fifty (250) acres of what is known as the
"Watson Place," and situate about one mile north of
Central Point, Oregon, and further described as the two
hundred and fifty acres lying adjacent to the railroad track.
And the said party of the second part hereby covenants and
agrees to pay to the said parties of the first part the sum
of forty dollars ($40) per acre, and is to take two hundred
and fifty acres, more or less, according to the following
provisions, viz.: If there be, when surveyed, two hundred and
fifty acres on the west or north-west side of Bear creek, or
further described as the portion adjacent to the railroad
track, then the party of the second part agrees to take two
hundred and fifty acres of land; but if it should appear from
the survey, in getting together two hundred and fifty acres
of land, that five acres, or less than five acres, should
come on the east or north-eastside of said stream, the
parties of the first part agree to keep that amount out of
the two hundred and fifty acres; and the party of the second
part also agrees that if more than five acres should by a
survey be shown to come on the east or north-east side of
said stream, and being a part and parcel necessary to make
the said two hundred and fifty acres, then the party of the
second part agrees to accept of said land on the east or
north-east side of said stream. Payments to be made in the
following manner, viz.: Five hundred dollars in hand paid
the receipt whereof is hereby acknowledged, and the balance
in two payments, as follows, viz.: Three thousand dollars at
the time of the delivery of a good and sufficient warranty
deed and abstract of title to said land; six thousand five
hundred dollars on or before three years from date of last
above payment, interest to be paid at the rate of eight
percent, per annum on deferred payments, payable annually
all in U.S. gold coin of the United States; the latter
amount, six thousand five hundred dollars, to be secured by a
note and mortgage on said land; and it is understood that
said mortgage shall be released on part or all of said land
at any time that the party of the second part may pay the
amount due; and, in case of any failure of the party of the
second part to make any of the payments or perform any of the
covenants on his part hereby made and entered into, this
contract shall, at the option of the parties of the first
part, be forfeited and determined, and the party of the
second part shall forfeit all claims made by him on this
contract, and such payments shall be retained by said parties
of the first part in full satisfaction and liquidation of all
damages by them sustained, and they shall have the right to
re-enter and take possession of the premises aforesaid, with
all the improvements and appurtenances thereunto belonging.
It is also mutually agreed that all the covenants and
agreements herein contained shall extend to and be obligatory
upon the heirs, administrators, and assigns of the respective
parties. In evidence whereof the parties of these presents
have hereunto set their hands and seals the day and year
first above written. [ Seal] CHAS. G. RIPPEY. [ Seal] FRANK
AMY. Done in the presence of C.W. AYERS, FRANK LENNART, A.T
KYLE, Jr.'
"(4)
As soon as the contract set out in the third finding of fact
was signed by the defendants, Kane paid them five hundred
dollars under said contract, which they accepted.
"(5)
Within a short time after the execution of the agreement as
set out in the third finding of fact, and the payment of the
five hundred dollars thereunder as set out in the fourth
finding of fact, the defendants furnished to Kane an abstract
of title of the land mentioned in said agreement, prepared by
an abstractor mutually agreed upon by Kane and the
defendants. Kane submitted this abstract to his attorney, who
advised him that the title of the defendants to said land was
defective.
"(6)
Within a short time after said abstract mentioned in the
fifth finding of fact had been furnished, the defendants
executed their warranty deed for said land to said Kane, and
tendered the same to him, and they were willing and ready to
complete the sale of said land to him.
"(7)
Kane refused to accept the deed so tendered to him as found
in the sixth finding of fact, and refused to accept the land
under said deed, and refused to complete the purchase of said
land, and to pay therefor, as provided in the agreement
alleging as a reason for such refusal that the title of said
defendants was not...
