Mossie v. Cyrus

• Decision Date: 19 December 1911
• Citation: 119 P. 485,61 Or. 17
• Parties: MOSSIE v. CYRUS. [d]
• Court: Oregon Supreme Court

119 P. 485

61 Or. 17

MOSSIE v. CYRUS. ^[d]

Supreme Court of Oregon

December 19, 1911

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

Suit by Eber D. Mossie against Mary Cyrus. From a decree for defendant, plaintiff appeals. Affirmed.

Wm. P. Lord and W.C. Winslow, for appellant.

A.O Condit and Geo. G. Bingham, for respondent.

EAKIN C.J.

This is a suit for specific performance of an agreement for the sale of land. The memorandum of the agreement is as follows:

"Sisters Oregon, June 29, 1908. Witnesseth, that I, Mary Cyrus, do hereby covenant and agree to sell to Osburn Edwards and Eber D. Mossie, or either of them, the following described real property, to wit: Thirty lots, now belonging to me situated in Brooklyn addition, in the city of Salem, county of Marion, state of Oregon, for the consideration of seven hundred dollars ($700) the receipt of forty-five dollars ($45) of which is hereby acknowledged. I also agree to give abstract of title and warranty deed to said lands. Witness my hand and seal. Mary Cyrus. [ Seal.]

"Witnesses M.R. Nerll. J.B. Adams."

It is alleged in the complaint that on August 23, 1908, defendant attempted to withdraw from and annul the contract, and duly notified plaintiff of such withdrawal; that on May 8, 1909, plaintiff duly tendered the purchase price to defendant, and demanded a conveyance of the property to him. Defendant admits the signing of the writing, and that she refused to convey the property to plaintiff, but denies the other allegations of the complaint.

Although the complaint alleges that the defendant entered into an agreement, whereby plaintiff agreed to buy and defendant to sell the lots, of which the writing is the evidence, the writing is not such a memorandum of an agreement as will answer the requirements of the statute of frauds. Such a memorandum must contain all the essential terms of the contract. It must be definite in respect to the intention of the parties; who they are, and their relation one to the other; who is the seller, and who is the buyer. See note to Ruzicka v. Hotovy, 72 Neb. 589, ^[d] in 9 Am. & Eng.Ann.Cas. 1060-1064. We need but to read the memorandum to see that it is not a memorandum of an agreement of sale. The defendant agrees to sell to Edwards and Mossie, or either of them, thus indicating that there is no purchaser, but the offer was open to both or either. The most that can be claimed for the memorandum is that it was an offer by defendant to sell at a certain price.

There being no time fixed in which the offer might be accepted, it would remain open a reasonable time, or until withdrawn. If considered as an option, the effect is the same, unless there was a consideration for the option, and the evidence discloses that there was none. If the offer had been accepted within a reasonable time, and before withdrawn, the price of the lots ($700) would have constituted the consideration, and have completed the contract. The $45 mentioned in the offer was received as part of the price only, and not as consideration for the option. See Friendly v. Elwert, 57 Or. 599, 112 P. 1085. The seal affixed to the signature is only prima facie evidence of consideration. Olston v. Oregon Water Power & Ry. Co., 52 Or. 343, at page 349, 96 P. 1095, 97 P. 538, 20 L.R.A. (N.S.) 915.

On the other hand, conceding that the writing is an option given upon a consideration, no time for acceptance is provided; therefore it must have been accepted within a reasonable time. 9 Cyc. 291, 611; 29 A. & E.Enc. 600; Stone v. Harmon, 31 Minn. 512, 19 N.W. 88. And if the acceptance is not made within a reasonable time, the option is terminated, and without notice to the vendee of a withdrawal. 29 A. & E.E. 600; Bowen v. McCarthy, 85 Mich. 26, 48 N.W. 155.

In Larmon v. Jordan, 56 Ill. 208, it is said: "So if no time be limited, the offer, in the absence of evidence to the contrary, will be presumed to have been renewed every moment during a reasonable time, and...