Loeb v. Merges

• Decision Date: 04 December 1923
• Parties: LOEB v. MERGES.
• Court: Oregon Supreme Court

220 P. 572

110 Or. 174

LOEB v. MERGES.

Supreme Court of Oregon

December 4, 1923

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by Max Loeb against E. E. Merges. Judgment for plaintiff, and defendant appeals. Modified, and affirmed.

This was a suit for an accounting for the profits of an alleged sale of a certain house and lot in the city of Portland. On September 21, 1920, E. E. Merges and Max Loeb secured from Mr. Abe Meier an option to sell or purchase the property therein described for the sum of $10,000, to be paid as therein set forth. The option is as follows:

"September 21, 1920.

"Messrs E. E. Merges and Max Loeb, Portland, Oregon--Gentlemen: You are hereby given exclusive right and option to purchase or sell my lot at the southwest corner of Eleventh and Mill streets, in the city of Portland, Oregon, for the sum of $10,000 net, payments to be $5,000 on or before three years, with interest at the rate of 7 per cent. per annum payable annually, and to be secured by first mortgage on the premises.

"Unless purchase or sale is made within 30 days of this, the 21st day of September, 1920, this option is void.

"Hoping this is satisfactory to you, I am,

"Very respectfully yours,

"[Signed.] A. Meier."

Afterwards having proceeded under this option until nearly the expiration thereof, and having made several attempts to sell the property, from one of which they received a forfeit from an intending purchaser of $500, they applied to Mr. Meier to extend the option, and on October 20 he gave an extension in the following language:

"Oct 20, 1920.

"In consideration of the sum of $500, this option is extended to the 1st day of December, 1920. In case option exercised price of property to be $9,500.

[Signed.] A. Meier."

Both parties seem to have worked diligently to procure a sale of the property, but, failing to do so, along about the expiration of the option they again applied to Mr. Meier and received a further extension, which is in the following words:

"For a valuable consideration, I hereby extend the above option for the period of thirty days from and after December 1, 1920.

"[Signed.] A. Meier."

The testimony of both parties is to the effect that, as between themselves, there was no intention of buying the property but that their agreement was to sell it for whatever they could get over and above the price named in the option and divide the proceeds equally. Up to the latter part of December, not earlier than the 24th, neither party had succeeded in obtaining a purchaser, nor does the evidence indicate to our minds any greater probability that one could have been found within the life of the option, other than the arrangement herein detailed. Along about the 28th or 29th of December Merges succeeded in making an arrangement by which he induced a Mr. Ferris to agree to take one-third of the property for $3,000 cash, and a Mr. Rogers to take a third in exchange for an automobile which was valued at $2,000, and proposed to plaintiff (Loeb) that he and Loeb should put up the remainder of the money required, which was $500, and take the other third themselves. He did not disclose to Loeb who the other parties were, and Loeb hesitated to go into such an arrangement, whereupon, on the 31st, being told by Mr. Meier that the option would not be further extended, Merges paid $500 of his own money, taking a deed to himself and giving a mortgage for $6,000, the remainder of the purchase price; and thereafter he deeded to Ferris a one-third interest for $3,000,...