T.B. Potter Realty Co. v. Breitling

• Decision Date: 15 February 1916
• Citation: 155 P. 179,79 Or. 293
• Parties: T. B. POTTER REALTY CO. v. BREITLING.
• Court: Oregon Supreme Court

155 P. 179

79 Or. 293

T. B. POTTER REALTY CO. v. BREITLING.

Supreme Court of Oregon

February 15, 1916

Department 2.

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

Action by the T. B. Potter Realty Company against George S Breitling. From a judgment for defendant, plaintiff appeals. Reversed, and action dismissed as to both parties.

This action was commenced December 2, 1913, to recover the then matured installments of the purchase price of real property. The complaint substantially charges that the plaintiff is a corporation, and on June 17, 1909, it entered into a written agreement with the defendant, whereby it undertook to sell to him lot 10 in block 89 in Bayocean Park, Tillamook county Or., for $750, with interest from that date at 6 per cent per annum, of which sum he then paid $10, and engaged to make a like payment each month thereafter until the entire consideration was liquidated, the interest to be payable at the maturity of the last installment; that between June 17 1909, and December 5, 1912, the defendant, pursuant to the terms of the contract, paid the plaintiff on account thereof $390, setting forth the respective dates and the sums of money so received; that no other payment has been made than as stated, and there then remained due and owing from the defendant to the plaintiff under the agreement the sum of $150.

For a second cause of action the material averments of the first cause are repeated, the complaint, alleging a contract was consummated August 5, 1909, whereby the plaintiff engaged to sell to the defendant lot 19 in block 80 in Bayocean Park for $750, upon the same terms and considerations as stated in the preceding cause of action; and that between August 5, 1909, and July 8, 1912, he had paid only $370, setting forth the items and dates, thereby leaving due and owing the plaintiff $150.

For a third cause of action, the material allegations of the first cause are reiterated, the complaint, averring another contract, was concluded February 9, 1910, by the terms of which the plaintiff stipulated to sell to the defendant lot 20, in block 70, in Bayocean Park for $700, upon the same terms and conditions as first stated; and that between February 9, 1910, and July 8, 1912, he had paid only $310, giving the dates of such payments and the amounts thereof, thus leaving due and owing the plaintiff $150.

For a fourth cause of action, the complaint recapitulates the essential averments of the first cause, and alleges that a contract was entered into August 5, 1909, whereby the plaintiff engaged to sell to the defendant lot 18 in block 80 in Bayocean Park for $750, upon the same terms and conditions as alleged in the first cause of action; and that between August 5, 1909, and July 8, 1912, he had paid only $370, specifying the times and particulars thereof, whereby there remained due and owing the plaintiff $150. Judgment was demanded for these several sums amounting to $600.

The answer to the first cause of action admits the averments of the complaint as to the plaintiff being a corporation, the making of the contract for the sale of lot 10 in block 89 in Bayocean Park for the sum of $750, the payment of $390 on account thereof, but denies that $150, or any other sum, is due or owing from the defendant to the plaintiff on account of such agreement, or at all. For a further defense, and by way of counterclaim to the first cause of action, the answer avers, in effect, that at all the times stated therein the plaintiff was the owner of lot 10, in block 89, of Bayocean Park, as appears by the plat thereof, on file and of record in the office of the county clerk of Tillamook county, Or.; that prior to the making of the written agreement by the parties for the sale of that lot, the plaintiff, by its officers and agents, represented to the defendant: (1) That all the land delineated on such plat, and particularly the lot last described, was sightly. (2) That the value of that lot was about $1,500, but in order to start a sale of the tract, the plaintiff would convey the lot to the defendant for $750. (3) That if the defendant purchased the lot, the plaintiff would forthwith improve it by laying water pipes either in front, in the rear, or through such lot. (4) That the corporation would grade and pave the street in front thereof. (5) That it would clear the brush, trees, and rubbish from the lot and level it. (6) That on either side thereof, the plaintiff would lay paved sidewalk. (7) That in the vicinity of such lot the corporation would lay out and improve about six acres of land, erect thereon a first-class hotel, and various other popular attractions, in order to induce the public to purchase lots in Bayocean Park and locate thereon, and generally to improve all the streets in the tract by grading and paving such highways, laying sidewalks, clearing timber, and brush from the tract and improving all thereof. (8) That without any additional cost to the defendant, the plaintiff would install at Bayocean Park, on the west side of Tillamook Bay, at least three docks, and operate therefrom a ferryboat to some suitable railroad station on the east side of that bay. (9) That in preference to all other real property in Bayocean, the corporation would improve lot 10, in block 89 thereof, and the streets and avenues joining thereon in the manner here alleged. (10) That in addition to such representations the plaintiff and its agents delivered to the defendant pictures, showing improvements already completed at Bayocean Park, and also gave him books and pamphlets representing other improvements that were forthwith to be made on the tract, requesting him to preserve such literature and examine such pictures in order to ascertain the kind of betterments to be made, assuring him that in consequence thereof, if he purchased the lot, the value thereof would enhance within a year or two to double or treble its then value. That at the time the contract to purchase such lot was concluded, the defendant had not seen the land so platted, and was without any knowledge of the character thereof, and believed the representations so made and the statements contained in the books and pamphlets and the portrayal delineated in the pictures so given to him, and, relying thereon, he was induced to purchase the lot for the price and upon the terms stated in the complaint. That in the latter part of the year 1912, the defendant was informed that the representations so made were false, whereupon he ceased making further payments on account of the purchase of the lot. That in July, 1913, he personally inspected the land so platted, and for the first time discovered such representations were false in that: (1) The plaintiff had not laid water pipes either in front, in the rear, or across such lot; (2) the corporation had not cleared the brush, trees, and rubbish from the lot nor leveled it; (3) the plaintiff had failed to grade or improve the street abutting such lot; (4) it had neglected to lay sidewalks on either side thereof; (5) it had not carried into effect or completed any of the undertakings which it represented would be made to improve the tract so platted, in that it did not grade and pave the streets and avenues, clear and level the tract and lots thereof, lay sewer and water pipes, put down sidewalks, build docks, operate a ferryboat, and generally improve such lot and tract; (6) the worth of the lot at the time the defendant agreed to purchase it was not $750, nor has its value enhanced since that time. That such representations were false, and so known to be by the plaintiff when they were uttered, and were made by it and its agents with the intent and for the purpose of inducing the defendant to buy the lot. That, relying upon such representations to be true, he was induced to purchase the premises--

"and was thereby defrauded out of the amount of money paid to the plaintiff on said lot, to wit, in the sum of $390."

That prior to the commencement of this action, the defendant notified the plaintiff of such fraud and deceit, and thereupon demanded of it the repayment of the money which it had so received from him on the purchase of such lot. That the corporation then agreed to compensate him for the losses which he sustained by reason of the transaction. That notwithstanding such promise the plaintiff failed and refused to return the sum of $390, the money so paid, or to compensate him for the losses which he had suffered. The separate defenses as to the other causes of action alleged in the complaint are substantially the same as the averments of the answer hereinbefore set forth, except as to the descriptions of the several lots agreed to be purchased, the times of making contracts therefor, and the payments of sums of money thereon, amounting to $1,440, for which judgment was demanded. The reply put in issue all the allegations of new matter in the answer, and, the cause having been tried, resulted in a verdict and judgment for the defendant for the sum so demanded, and the plaintiff appeals.

J. C. Veazie, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for appellant. G. G. Schmitt, of Portland (Schmitt & Schmitt, of Portland, on the brief), for respondent.

MOORE, C.J. (after stating the facts as above).

There was received in evidence at the trial in support of the first cause of action set forth in the complaint a contract entered into June 17, 1909, between the Potter-Chapin Realty Company, a corporation, and Emma Whitney for the sale of lot 10 in block 89 of Bayocean Park for $750. She on December 30, 1910, for the expressed consideration of $1 assigned all her right, title, and interest in the contract to the defendant. The second cause was manifested by a contract...