Chapler v. Allen

179 P. 484, 91 Or. 556, 1919 Ore. LEXIS 66

• Court: Oregon Supreme Court
• Decided: March 25, 1919
• Status: Published

Opinion

BENSON, J.

Defendant insists that the complaint does not allege any facts entitling the plaintiff to any relief whatever, and we are compelled to agree with this contention. When shorn of its formality of statement, the pleading in effect says:

“I entered into a contract with defendant’s grantor, whereby I agreed to purchase, and he agreed to sell to me, a certain tract of land, containing .86 acres. The tract does not contain .86 acres, or more than .50 acres, and therefore, I want the purchase price rebated in proportion to the deficiency of the area.”

It is conceded by the plaintiff that a simple mathematical computation of the area as described in the complaint discloses an area of .86 of an acre. This being true, the pleading, in itself, negatives the only ground upon which any right to relief is founded.

The evidence introduced by plaintiff upon the trial tends to prove that the tract of land involved herein, consists of a triangle, having its apex at the north end, where two public roads converge; that before he entered into the contract, the boundaries were pointed out to him by Brasher’s agent, and as so indicated, they did not include any portion of the converging highways, but that the description in the contract includes the land to the center of each of such roads. There is nothing in the pleadings which would mate evidence of this character admissible or relevant. The plaintiff may have a good cause of suit, but he has not pleaded it, and therefore it is not before us upon the record.

We conclude that the decree must be reversed, and the cause will be remanded with permission to the plaintiff to apply to the lower court for leave to amend his complaint, and for further proceedings not inconsistent with this opinion.

Reversed and Remanded.

McBride, C. J., and Burnett and Harris, JJ., concur.