Biddle State Bank v. Link

153 P. 1192, 78 Or. 498, 1915 Ore. LEXIS 68

• Court: Oregon Supreme Court
• Decided: December 28, 1915
• Status: Published

Opinion

Mr. Justice Benson

delivered the opinion of the court.

The first three assignments of error are so intimately connected that we shall consider them together. They are to the effect that the court erred in admitting parol evidence of the alleged promise of defendants to pay the note, since it was a promise to answer for the debt of another and therefore in violation of the statute of frauds; that the court erred in admitting in evidence the written agreement of purchase and sale between Ross and Link as the agreement of Wilson and Hutchinson because it was an attempt to vary by parol the terms of a written instrument; that the court erred in denying defendants’ motion for a nonsuit upon the ground that there was no competent evidence to show any agreement upon their part to pay the debt of Ross and Dunbar; that the evidence disclosed affirmatively that the title of property never passed to Wilson and Hutchinson; that there was no evidence to show that Link had any authority to bind them in the manner of assuming payment of the note at the bank; and that there was no evidence of any partnership existing between Link and the answering defendants.

1. The parol evidence tending to show that the written contract executed by Link was in fact the contract of all three, was properly admitted. In the case of Flegel v. Dowling, 54 Or. 40 (135 Am. St. Rep. 812, 19 Ann. Cas. 1159, 102 Pac. 178), it was held that the statute of frauds does not exclude parol evidence to show that a written contract made between A, the seller, and B, the buyer, was on B’s part made by him only as agent for C. It is said that such evidence does not contradict the writing, but explains the transaction.

2. As to the admissibility of the written contract signed by Ross and Link, it is enough to say that if the parol testimony above referred to satisfied the jury that the contract was, in fact, the act of Hutchinson and Wilson, then it was properly admitted.

3. We come next to a consideration of the written document itself. It is a contract for the purchase of the sawmill property and certain standing timber, and is, in form, written evidence of a conditional sale. Under such an agreement the delivery of possession by the seller was all that remained for him to do until such time as the final installment of the purchase price should be paid, at which time he would be required to deliver written evidence of title in the purchaser, and nothing remained for the buyer to perform other than the payment of the purchase price. There is therefore no merit in the contention that there was no evidence of a purchase. It is immaterial as to whether there •was evidence of a partnership in the strict sense of the term for there is evidence tending to show that Link, Hutchinson and Wilson were jointly interested in the purchase.

4. The credibility and effect of such evidence was for the jury to determine.

If the promise by Hutchinson and Wilson to pay the note was, as alleged in the complaint, a part of the purchase price, it would be susceptible of proof by parol evidence. As is said in Feldman v. McGuire, 34 Or. 309 (55 Pac. 872):

“It was not a mere promise by the defendant to be responsible for the debts of Corlett to those parties, and to pay those debts, but a promise by him to pay his own debt in that particular way. ’ ’

The instruction of which complaint is made does not undertake to determine any question of fact, but is a proper statement of the law to the effect that taking possession of the personal property under a written contract, like the one in evidence, is sufficient to-make the transaction a sale. Finding no error in the record, the judgment is affirmed.

Affirmed.

Me. Chief Justice Mooee, Me. Justice Bean and Me. Justice Haréis concur.