Phillips v. Johnson

• Jurisdiction: Oregon
• Parties: Stanley PHILLIPS and Maxine Phillips, husband and wife, Respondents, v. Arthur R. JOHNSON and Beverly Jean Johnson, husband and wife, Appellants.
• Citation: 266 Or. 544,514 P.2d 1337
• Court: Oregon Supreme Court
• Decision Date: 27 September 1973

Page 1337

514 P.2d 1337

266 Or. 544

Stanley PHILLIPS and Maxine Phillips, husband and wife, Respondents, v. Arthur R. JOHNSON and Beverly Jean Johnson, husband and wife, Appellants.

Supreme Court of Oregon.

Argued and Submitted June 1, 1973.

Decided Sept. 27, 1973.

Robert C. Anderson, Astoria, argued the cause for appellants. With him on the brief were Anderson, Fulton, Lavis & Van Thiel, Astoria.

Jeanyse R. Snow, Astoria, argued the cause for respondents. With her on the brief were Macdonald, Dean, McCallister & Snow and Robert C. Macdonald, Astoria.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, ^* TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

This is a suit for specific performance of an 'earnest money receipt' for the sale of land near Astoria. Defendants appeal from a decree by which the trial judge ordered the parties to 'perform pursuant to a land sale contract as contemplated by the earnest money receipt,' the terms of such 'contract' being attached to that decree.

Defendants contend that: (1) the trial court erred in denying defendants' motion for a jury trial; (2) the legal description of the land was insufficient; (3) the trial court ignored testimony to the effect that the property was to be surveyed and 'legal documents' prepared; (4) the terms of the earnest money receipt were indefinite and uncertain, and (5) the award of $1,950 as attorney fees was unreasonable and improper.

After some preliminary discussions with defendants, and after consulting their attorney, plaintiffs made a visit to defendants for the purpose of making an offer to purchase a portion of defendants' land. Plaintiffs had previously visited the Clatsop County Courthouse and had secured a samll map of the area, including the two tracts involved. They also had obtained from their attorney a printed Stevens-Ness 'Earnest Money Receipt,' which had been partly filled out by him. The attorney had attached an incomplete description of the two tracts and advised plaintiffs to also attach to it the map and to outline on the map in red and blue pencil the boundaries of the two tracts to be purchased when the boundaries of such tracts were agreed upon with defendants.

Mr. Phillips and Mr. Johnson walked along the county road which ran north and south between the two tracts and discussed what portion of defendants' land on the west side of the road should be included in the transaction as the second tract to be sold and where the north boundary line of that tract should run. The first tract, lying east of that road, presented no problem.

They then returned to Mr. Johnson's house, where Mr. Phillips proceeded to mark on the map in red and blue pencil the outline of the boundaries of the two tracts. The price of $2,500 and terms of payment were also agreed upon at that time and inserted in the 'Earnest Money Receipt.' By those terms $100 was to be paid as earnest money and $900 as an additional down payment, with the balance of $1,500 payable as follows: '$750.00 plus in. at 6% To be paid on or before July 30--1972 and $750.00 plus interest at 6% To be paid on or before July 30--1973 which will be final payment.' There was also discussion about having a serveyor survey the two tracts and prepare a 'legal description' and about having an attorney prepare the 'final papers.' There is a conflict in the testimony, however, as to some of the matters discussed by the parties at that time.

All the parties then signed the 'Earnest Money Receipt' and also signed the attached map, on which the boundaries of the two tracts had been marked, as well as the attached description of the two tracts, the second of which being still incomplete. Plaintiffs delivered to defendants a check for $100 at that time and later delivered another check for $900. Both checks were then returned by defendants, who refused to complete the transaction. Plaintiffs then filed this lawsuit.

1. The trial court did not err in denying defendants' request for a jury trial.

Defendants contend that they were entitled to a jury trial on the issue whether 'certain conditions precedent' were to be met before the signed documents became effective and cite Smith v. Cain, 69 Or. 479, 139 P. 566 (1914), for the proposition that when title to real property is involved the parties are entitled to a trial by jury of such a question. Defendants also contend that even if the trial judge had discretion in this case whether or not to direct that such a question be submitted to a jury for decision, there was an abuse of any such discretion.

It is well established, however, that suits in equity, including suits for specific performance of contracts, are ordinarily to be tried to a court without a jury and that the constitutional right to trial by jury does not apply to suits in equity. See Sugarman v. Olsen, 254 Or. 385, 388, 459 P.2d 545 (1969), and Katchen v. Landy, 382 U.S. 323, 337, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966).

ORS 17.040 provides that an issue of fact in a suit in equity may be submitted to a jury. In such a case, however, this is a matter within the sound judicial discretion of the trial judge. Upon examining the record in this case we find nothing to show that the trial judge abused such discretion in this case.

2. The description of the land to be conveyed was sufficient.

It would serve no useful purpose to recite the conflicting testimony relating to conversations between the parties about the north boundary line of the second tract of land. For the purposes of this case it is sufficient to say that according to Mr. Phillips, he and Mr. Johnson discussed and agreed that the north line of that tract should terminate at the intersection of an existing county road and an abandoned county road and that this was the agreed terminus of the line for that boundary, as drawn by him on the map attached to the 'Earnest Money Receipt.' Mr. Johnson, however, denied that the intersection of the two roads was agreed upon as the terminus of that line, but testified that it was agreed that it terminate at a certain cedar tree some distance farther to the south on the county road. He also contended that the drawing on the map did not clearly show that this line terminated at the point of intersection of the two roads, considering a curve in the existing county road, a question relating to the true location of the abandoned county road, and the small scale of that map.

Plaintiffs offered the testimony of a surveyor and a title insurance company employee to the effect that based upon the drawing of the lines on the map, together with county records showing the location of the existing county road and the abandoned county road, they could prepare a description for both tracts of land sufficiently definite to convey good title to such tracts. Defendants offered the testimony of the county surveyor to the contrary. ¹

It is well established in Oregon that a description of land is sufficiently definite and certain if it is possible for a surveyor to ascertain from the description, 'aided by extrinsic evidence,' what property was intended to be conveyed. See O'Hara v. Brace, 258 Or. 416, 422, 482 P.2d 726 (1971), and cases cited therein. See also Western Hills, Oregon, Ltd. v. Pfau, 96 Or.Adv.Sh. 1461, 508 P.2d 201, 206 (1973); Gubser v. Town and Stoutenburg, 202 Or. 55, 73--75, 273 P.2d 430 (1954), and Gamet et al. v. Coop et ux., 182 Or. 78, 86, 91, 185 P.2d 670 (1947).

Although the problem presented by the description in this case is a difficult one, after reviewing the testimony, including that of plaintiffs' surveyor, we agree with the finding by the trial judge that the description was sufficiently definite and complete so as to satisfy the requirements of the foregoing rule.

Whether the making of a survey, as well as the preparation of formal legal documents, was intended to be conditions precedent to a binding legal obligation, presents a further question.

3. The trial judge properly found that when the parties signed the earnest money agreement they intended to enter into an enforceable and integrated contract.

Testimony was offered that when the 'Earnest Money Receipt' was signed there was discussion of engaging a surveyor to prepare a legal description of the two tracts and of having an attorney then prepare the formal legal documents. Defendants contend that, as a result, the parties intended that these occurrences were to be conditions precedent to any legally binding contract. Defendants also testified to the understanding that the document signed by them was no more than a 'receipt' for the $100 earnest money. Plaintiffs testified to a contrary understanding.

Under this conflicting testimony a close question is presented. This is particularly true when, as in this case, the document involved is entitled 'Earnest Money Receipt,' instead of 'Earnest Money Agreement,' or 'Earnest Money Receipt and Agreement,' as such a document might more appropriately be entitled.

In Caldwell v. Wells, 228 Or. 389, at 396, 365 P.2d 505, at 508 (1961), also involving a Stevens-Ness 'Earnest Money Receipt,' we recognized that:

'It is common knowledge that such a writing purports only to seal the bargain in a rough form and that the parties do not normally include all of the refinements of the transaction in an earnest money agreement.'

Nevertheless, this court has enforced earnest money agreements, where sufficiently definite in their terms, in a number of cases. See Anaheim Co. v. Holcomb, 246 Or. 541, 547, 426 P.2d 743 (1967); Sternes v. Tucker, 239 Or. 105, 112--113, 395 P.2d 881 (1964); Aldrich v. Forbes, 237 Or. 559, 569, 385 P.2d 618, 391 P.2d 748 (1964); Davis et al. v. Dunigan et al., 186 Or. 147, 154, 205 P.2d 839 (1949), and Alphi Phi of Sigma Kappa v. Kincaid, 180 Or. 568, 178 P.2d 156 (1947). See also Higgins v. Insurance Co. of N. America, 256 Or. 151, 156, 469 P.2d 766 (1970), and Highway Commission v. Clark, 238 Or 505, 395 P.2d 146 (1964). Cf. Meadowlark...