Sharp v. Kilborn

• Decision Date: 18 March 1913
• Citation: 64 Or. 371,130 P. 735
• Parties: SHARP v. KILBORN.
• Court: Oregon Supreme Court

130 P. 735

64 Or. 371

SHARP v. KILBORN.

Supreme Court of Oregon

March 18, 1913

Appeal from Circuit Court, Multnomah County; J.P. Kavanaugh, Judge.

Action by W.L. Sharp against Warren Kilborn. Judgment for defendant and plaintiff appeals. Reversed, and decree entered for plaintiff.

This is a suit to cancel a deed alleged to have been delivered by a third party out of escrow, contrary to the conditions of the deposit, to wit, without payment of the purchase price of the realty described in the conveyance. The answer admits the lodgment of the deed with the third party, to be delivered on the proviso named, but alleges affirmatively that the defendant paid to the depositary the purchase price of the property, as required by the conditions of the escrow, and so received the deed as regularly delivered. The payment pleaded in the answer is denied by the reply. At the hearing, when the plaintiff had introduced testimony and rested, the defendant moved the court for an order dismissing the suit because the complaint does not state facts sufficient to constitute a cause of suit, and further that the plaintiff had failed to produce sufficient testimony to sustain a judgment or decree against the defendant. The court allowed this motion, and dismissed the suit at the cost of the plaintiff, who appeals.

Arthur Clarke, of Corvallis (McFadden & Clarke and George W. Denman all of Corvallis, on the brief), for appellant.

W.S Hufford, of Portland, for respondent.

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

Only a question of law is involved in this suit, for the defendant by his motion admits the truth of the testimony, but says that it is not sufficient to sustain any decree against the defendant. The record discloses that about February 20, 1911 the plaintiff, a resident of Klamath Falls, was the owner of the real property in question, which is situated in Multnomah county. Some real estate agency in Portland Or., had procured a purchaser for the premises, and so notified the plaintiff, who on the date last above mentioned addressed a letter to the Mt. Scott Bank at Lents, Or., as follows: "Gentlemen: Inclosed herewith I hand you warranty deed of myself and wife to Warren Kilborn, also a certain deed from O.R. Additon and wife to me for the same property described in the deed first mentioned. I send you the deeds mentioned pursuant to instructions received by me from Bright Realty Co., Portland, Oregon, the agent who negotiated this sale. You will observe that the consideration stated in the deed made by myself and wife is ten dollars. That however is not the true consideration herein. The true consideration is $625 which sum must be paid to you before the deed is delivered and you are hereby instructed not to deliver the deed I send you herewith or either of them until the consideration amounting to $625 is paid you for my use. When you receive that sum then deliver the deeds I send you. The Bright Realty Co. of Portland, Oregon, who negotiated this sale, is to receive a commission of five per cent. out of the consideration of $625. You may pay such commission out of the consideration and send the balance of $625 to the First Trust and Savings Bank of Klamath Falls, Oregon, to be placed by such bank to my credit. Kindly attend to this matter according to instructions given you as soon as possible and oblige. Yours truly, W.L. Sharp." Prior to February 27, 1911, the defendant had deposited in the Mt. Scott Bank money in excess of $625, which had not been repaid to him. Having received notice of the arrival of the deed, he went on that date to the bank and gave to the officer in charge of the institution his check in words and figures as follows: "Lents, Oregon, Feb. 27, 1911, No. ------. Mount Scott Bank. Pay to the order of Mount Scott Bank $593.75 five hundred ninety three 75/100 dollars. Warren Kilborn." The amount of the check, it will be noticed, was $625, less 5 per cent. presumably deducted for the real estate agent's fee. The bank took the check, and delivered the deed to the defendant, who placed it on record. The check was never charged to Kilborn's account, nor sent to the plaintiff, and no money whatever was paid by any one to plaintiff on...