Lanham v. Reimann

• Decision Date: 29 June 1945
• Citation: Lanham v. Reimann, 177 Or. 193, 160 P.2d 318 (Or. 1945)
• Parties: LANHAM ET AL. <I>v.</I> REIMANN
• Court: Oregon Supreme Court

177 Or. 193

160 P.2d 318

LANHAM ET AL.

v. REIMANN

Supreme Court of Oregon.

Argued May 8, 1945.

Affirmed June 29, 1945.

Rehearing denied September 11, 1945.

Frauds, statute of

1. A purchaser under agreement for sale of land which does not satisfy statute of frauds cannot recover payment on purchase price if vendor is ready, able, and willing to perform his part of contract, and this rule applies to oral contracts.

Money received

2. Plaintiff in action for money had and received must prove that defendant has received money which in equity and good conscience belongs to plaintiff.

Vendor and purchaser

3. Where prospective purchasers of realty made counter offer and paid $25 as earnest money to broker's salesman, who gave a receipt calling for additional $275 and providing that if purchasers defaulted earnest money should be forfeited to extent of commission, with residue to vendors as liquidated damages, and purchasers later paid salesman additional $275 after orally agreeing to vendors' price, and vendors were ready and able to perform but purchasers changed their minds, purchasers were not entitled to recover the $300 or any part thereof from broker, whether broker was entitled to a commission or not.

Damages

4. A stipulation in executory land contract that payments shall be forfeited to vendor as liquidated damages if purchaser refuses to carry out his part of contract is not against public policy.

  See 49 Am. Jur. 870
                  37 C.J.S., Frauds, Statute of, § 256
                

Before BELT, Chief Justice, and KELLY, BAILEY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

Action by Cora L. Lanham and husband against Rich L. Reimann for money had and received. Judgment for defendant, and plaintiffs appeal.

AFFIRMED. REHEARING DENIED.

Otto K. Paulus, of Salem, for appellants.

George A. Rhoten, of Salem (Rhoten & Rhoten and Sam F. Speerstra, all of Salem, on the brief), for respondent.

BAILEY, J.

This is an action for money had and received. The complaint, after setting forth that defendant at all the times therein mentioned "was and is a duly authorized, practicing real estate broker, authorized to act as such by virtue of the laws of the State of Oregon", alleges that between the 27th day of April, 1943, and the 13th day of May of the same year the defendant became indebted to the plaintiffs in the sum of $300 "for money had and received by said defendant for the use and benefit of the plaintiffs herein." In his answer defendant denies all of the allegations of the complaint except the averment relating to his authorization to act as a real estate broker. There was a jury trial resulting in a verdict in favor of the defendant. From the judgment entered thereon, plaintiffs have appealed.

The facts in the case are not in dispute. N.L. Jennings and Ethel E. Jennings, his wife, were owners as tenants by the entirety of residential property in West Salem. Mr. Jennings, with the knowledge and consent of his wife, listed this property for sale with the defendant at the price of $2,800. M.C. Bristol, a real estate salesman, was working for the defendant. He contacted the plaintiffs who made a counter-offer to purchase the property for $2,700, and, on April 28, 1943, paid to Bristol $25 as earnest money. The receipt which Bristol signed as agent, and delivered to them, acknowledged payment of this $25 on the purchase price of $2,700, stipulated for an additional payment of $275 within ten days, and provided that the purchasers were "to finance balance at $25 per month" and pay the cost of the loan. This receipt further provided, among other things, as follows:

"It is agreed that if the owner does not approve the above sale, or if the title to the said premises is not marketable, or cannot be made so within thirty days after notice, with a written statement of defects, is delivered to owner, the earnest money herein receipted for shall be refunded. But if the above sale is approved by the owner and the title to the said premises is marketable, and the purchaser neglects or refuses to comply with any of the conditions of this sale and to make payments promptly, as hereinabove set forth, then the earnest money herein receipted for shall be forfeited to the undersigned agent, to the extent of the agreed upon commission, and the residue to the owner as liquidated damages, and this contract shall thereupon be of no further binding effect."

Below the receipt is the following statement signed by Mrs. Lanham: "I hereby agree to purchase the above property and to pay the price of Two Thousand Seven hundred ($2700.00) Dollars as specified above."

This offer by the plaintiffs was communicated by Bristol to Mr. and Mrs. Jennings. They, however, refused to sell the property for less than $2,800. Thereafter an oral agreement was entered into by and between the parties whereby Mr. and Mrs. Lanham agreed to purchase, and Mr. and Mrs. Jennings agreed to sell, this property for the sum of $2,800, on the terms and conditions, except as to amount of the purchase price, set forth in the earnest money receipt. Pursuant to such understanding between the parties, the plaintiffs, on May 12, 1943, paid to Bristol an additional sum of $275. The receipt which he gave them stated that this was the balance on the down payment. The oral agreement between the parties was not reduced to writing.

Bristol, in order to consummate the transaction, procured the promise of a $2,500 loan on the property and communicated this fact to the plaintiffs. They made no objections to it. Thereupon Bristol prepared the necessary documents to effectuate the loan and took them to the plaintiffs for execution. They then advised him for the first time that they had decided not to go through with the transaction, stating that they had changed their minds. No other reason was given for their refusal. Mr. and Mrs. Jennings were at all times ready, able, and willing to perform their part of the agreement.

When the plaintiffs paid the $25 to Bristol he stated to them that, prior to acceptance of their offer by Mr. and Mrs. Jennings, the money would be repaid at any time upon demand. They had this right without any promise by Bristol. However, before any request for the return of this money was made by the plaintiffs, they accepted Mr. and Mrs. Jennings' offer and agreed to pay $2,800 for the property. This $25, together with an additional $275, was applied on the purchase price of the property.

1. According to the great weight of authority, a vendee, under an agreement for the sale of land which does not satisfy the statute of frauds, can not recover payment upon the purchase price if the vendor is ready, able, and willing to perform his part of the contract. This rule applies...