Malzer v. Schisler

• Decision Date: 11 November 1913
• Citation: 136 P. 14,67 Or. 356
• Parties: MALZER v. SCHISLER.
• Court: Oregon Supreme Court

136 P. 14

67 Or. 356

MALZER v. SCHISLER.

Supreme Court of Oregon

November 11, 1913

In Banc.

Appeal from Circuit Court, Wallowa County; J.W. Knowles, Judge.

Action by Charles H. Malzer against Henry Schisler. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover a balance due on the purchase price of land. Plaintiff sold a certain tract of land to defendant for the consideration of $1,700, and by defendant's direction conveyed the tract directly to Denny. Defendant paid $700 cash at the time of the contract, and assumed and agreed to pay a mortgage then existing on the land in the sum of $800. This left a balance of $200, which defendant agreed to pay within a few days. The complaint alleges that he has not paid the $200, and neglects and refuses so to do. After a demurrer to the complaint was overruled, defendant answered, denying the allegations of the complaint, and as an affirmative defense pleaded the statute of frauds, to which a demurrer was sustained. Defendant then filed an amended answer, which is a specific denial of every allegation of the complaint except that he has not paid the $200. Upon the trial the defendant objected to the proof offered by the plaintiff to establish the agreement of sale and promise to pay, for the reason that it is an attempt to prove by parol an agreement for the sale of real estate, which objection was overruled. Upon trial verdict was rendered for the plaintiff. Defendant appeals.

Thomas M. Dill, of Enterprise, for appellant.

J.A Burleigh, of Enterprise, for respondent.

EAKIN J. (after stating the facts as above).

Defendant makes but one point upon the appeal, namely, that the agreement of sale was in parol, and therefore that a promise by defendant to pay the $200 cannot be established. We understand the rule in such a case to be that where there is an oral agreement for the sale of land, and the property has been conveyed to the vendee, the agreement is so far executed that it is thereby taken out of the statute of frauds. In an action to recover the balance of the purchase price the agreement to pay may be shown by parol, including the consideration for the promise to pay. In 39 Cyc. 1918, it is stated: "As a general rule the statute of frauds is a good defense to an action by a vendor on an oral contract of sale of land to recover the purchase price, unless the deed has been executed and delivered to or accepted by the purchaser. A purchaser in possession under a contract for the title cannot resist payment of the purchase price on the ground that he did not sign the contract." See,...