McGowan v. Willamette Valley Irrigated Land Co.

• Citation: 155 P. 705,79 Or. 454
• Parties: MCGOWAN ET AL. v. WILLAMETTE VALLEY IRRIGATED LAND CO.
• Decision Date: 07 March 1916
• Court: Oregon Supreme Court

155 P. 705

79 Or. 454

MCGOWAN ET AL. v. WILLAMETTE VALLEY IRRIGATED LAND CO.

Supreme Court of Oregon

March 7, 1916

Department 1.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Suit by H. S. McGowan and another against the Willamette Valley Irrigated Land Company. From decree for defendant, plaintiffs appeal. Reversed.

The admitted facts in this case are that the plaintiffs, husband and wife, contracted to buy from the defendant and the latter agreed to sell to them a tract of about 30 acres of land in Marion county, near West Stayton, upon which they paid $3,000, May 13, 1913, and $84 as interest thereon a year later. The written contract is admitted by both parties. When the agreement was made the land had been set to young apple trees. The plaintiffs assert that for the purpose of getting them to stipulate as they did, and knowing it to be untrue the defendant by its agents represented to them that the tract was set to three varieties of apples, 60 per cent. Rome Beauties, 20 per cent. Ganos, and 20 per cent. Thompkins Kings, being the varieties most desired by the plaintiffs when in fact the trees were of equal proportions of Spitzenbergs and Jonathans, the latter of which the plaintiffs contend were not adapted to the soil in that vicinity, and would not be so valuable as those which had been represented to them. For the sake of condensation we will designate as Rome Beauties what plaintiffs say were represented to them, and as Spitzenbergs what were actually on the ground. We will also refer to the plaintiffs either in the singular or as McGowan, meaning the husband, because he transacted all the business on their part. This matter is denied by the answer and, in turn, the defendant contends that it had two parcels of land equivalent in character, one of which was set to Rome Beauties, and the other to Spitzenbergs; that the plaintiffs examined both tracts, were fully informed of the varieties of trees planted on each and had the option of taking either, and knowing all this selected the one mentioned in the written stipulation. This in turn was traversed by the reply. From a decree for the defendant, the plaintiffs appeal.

Ernest R. Ringo, of Salem (Alfred Todd, of Lamar, Colo., on the brief), for appellants. Robert Tucker, of Portland, and John A. Carson, of Salem, for respondent.

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

This being a suit to rescind on the ground that the plaintiffs did not obtain that for which they contracted, the relative values of the two kinds of orchards are of no moment. If the plaintiffs had chosen to bring an action for damages instead of rescinding the agreement, and it could have been shown that an orchard of Spitzenbergs was worth as much or more than one of Rome Beauties, the defendant would necessarily prevail. It is a platitude of law to say that when a person contracts to purchase a certain thing he is entitled to that specified article. In a suit to rescind, therefore, it does not lie in the mouth of the defendant to say to the plaintiffs:

"True enough, you did not obtain that for which you sought, yet we have given you something just as good and you have no right to rescind." Pennington v Roberge, 122 Minn. 295, 142 N.W. 710; Mather v Barnes (C. C.) 146 F. 1000.

The pivotal question in this case, therefore, is one of fact requiring an analysis of the testimony. It seems that the husband was a merchant at Springfield and wished to buy a prune orchard. Accordingly, having seen the advertisement of the defendant offering one for sale, he went to West Stayton to buy it. After inspecting it he went with the local agent to the principal office of the company in Portland and found it had been sold that very day. Some of the attachés of the office then directed his attention to other land at West Stayton which had been set to apple trees. Thus far all agree. He says that Mr. Hartog, the principal manager of the defendant, told him at Portland and afterwards at Springfield, where he went to adjust some details of the transaction, that the tract was set to Rome Beauties, and that nothing whatever was said about Spitzenbergs. The plaintiffs went into possession of the land after the agreement had been executed, and some time in May, 1914, discovered that it was not planted to Rome Beauties as they desired, of which fact they immediately complained to the defendant. Under date of May 26, 1914, Mr. Hartog wrote to the plaintiff a letter reading thus:

"Answering your letter of May 25th, we can only say that we are surprised at your allegation that the orchard was not planted as represented. We went to considerable expense in handling this deal, and it was with the greatest of care. Every 5 acres was set with 60 per cent. Rome Beauties, 20 per cent. King of Thompkins Co., and 20 per cent. Gano, as told you at the time. This was done carefully and in good faith, no matter what experts might say now, so there is nothing to adjust except the payment, and as written you, they are forcing me to foreclose. It will be to your interest to see me at once. You have been notified by the bank twice and since then by me twice, and unless you give this matter your immediate attention you will have yourself to blame if the people from whom you bought the place force foreclosure proceedings."

About this communication it is proper to say that after Hartog had examined the records of the defendant he discovered that he was mistaken and so wrote to the plaintiffs claiming that he had written hastily and without proper examination of the office files. On the other hand, it will be noted that the letter asserts that the land was set with...