Scott v. Merrill's Estate

• Citation: 146 P. 99,74 Or. 568
• Parties: SCOTT v. MERRILL'S ESTATE. BROWN v. MERRILL'S ESTATE.
• Decision Date: 09 February 1915
• Court: Supreme Court of Oregon

146 P. 99

74 Or. 568

SCOTT v. MERRILL'S ESTATE. BROWN v. MERRILL'S ESTATE.

Supreme Court of Oregon

February 9, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge.

Claims by Charles N. Scott and Emma M. Brown against the Estate of Sarah A. Merrill, deceased. Both claims having been dismissed, each claimant prosecutes a separate appeal. Affirmed.

Two appeals were taken by claimants from judgments of the circuit court disallowing two separate claims against the estate of Sarah A. Merrill, deceased. Both demands grew out of the following transaction: In May, 1909, Emma M. Brown paid to Sarah A. Merrill, now deceased, $1,000 as earnest money on the purchase price of two lots in block 209, in the city of Portland. In the negotiations Charles N. Scott acted as agent for Mrs. Merrill, who was represented to some extent by her husband, E. S. Merrill. Mr. Merrill died in November, 1912 and his wife in January of the following year. On January 7 1913, Mr. Scott filed his claim against the estate in the sum of $1,480, and in April of that year Mrs. Brown filed her claim for $1,000, both of which were rejected by the administratrix. The causes were tried together.

C. M Idleman, of Portland (L. P. Hewitt, of Portland, on the brief), for appellants. A. E. Clark, of Portland (J. H Middleton, of Portland, on the brief), for respondent.

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

It appears that Scott and his associates interested Mrs. Brown in the Merrill property, and, at the time the earnest money was paid, a receipt therefor was given in which the realty was described. It was also stated therein, in effect, that the money was received as earnest of her intention to purchase the land in question from Sarah A. Merrill at the agreed price of $56,000, the balance to be paid, $24,000, by July 1, 1909, and the remainder in two years. It was agreed that in case of failure of title, or for any other cause, the land was not conveyed free of incumbrances to E. M. Brown by a good and sufficient deed, the money should be returned to her; that, the "purchaser failing to make the payments above specified, the deposit money will be forfeited as stipulated damages." The receipt was signed Sarah A. Merrill, by Charles N. Scott, agent, and afterwards ratified in writing by Sarah A. Merrill and E. S. Merrill. There appears on the receipt or contract a notation, as follows: "Subject to regular com 5% on first 2000 and 2 1/2 on balance."

Some time after the negotiations were ended, Mr. Scott caused a copy of the contract to be recorded in the miscellaneous records of Multnomah county. Mrs. Brown did not execute any binding agreement with Mrs. Merrill for the purchase of the property. She had the option of purchasing the same or forfeiting the $1,000 deposit. No sale was ever made to Mrs. Brown, and she now claims a return of the deposit. Mr. Scott also seeks to obtain commission for his services.

Mr. F W. Newell, who was associated with Mr. Scott and assisted in the negotiations, testified to the effect that, when Mrs. Brown declined to go on with the sale, he considered it a closed incident; but that she never gave him any reason therefor. It appears from the evidence that Mrs. Merrill was willing to complete the transaction; that her husband acted for her and was insistent upon Mrs. Brown closing the deal until the latter told him that she did not wish to see him any more; that, after the deposit was made, Mrs. Brown visited the premises a second time, and went into one of the houses on the land for the first time, where she was informed by one of the tenants that the rent paid for the property was $90 instead of $100 per month, as represented to her by Mrs. Merrill. The evidence shows, however, the latter amount to be correct. It appears that one of the houses upon the land was not owned by Mrs. Merrill; that the tenant paid ground rent of $20 per month; and that Mrs. Brown was somewhat dissatisfied with this. It is not shown that Mrs. Merrill was not perfectly able and willing to convey complete...