Helgeson v. Northwestern Trust Co.

203 P. 586, 103 Or. 1, 1922 Ore. LEXIS 135

• Court: Oregon Supreme Court
• Decided: January 24, 1922
• Status: Published

Opinion

McBEIDE, J.

1. The plaintiff, to judge by his testimony, is rather an ignorant and credulous man and no doubt gave too much credit to the somewhat extravagant “puffing” indulged in by defendants’ agent. But he visited the land and so far as physical conditions were concerned had an opportunity to judge of the qualities and productivity of the tract he was negotiating for, as well as its nearness to market, highway and railroads. These matters may therefore be put aside as not in themselves furnishing any ground for rescission or for a recovery of the money paid by plaintiff.

2, 3. It is well settled that courts will not reform a contract for the sale of land where the description is too indefinite to comply with the statute of frauds. So we have here the case of a payment of money upon a contract which is enforceable neither in law nor in equity. Conceding for the purposes of this decision that there is any contract at all, it is a purely oral agreement and as. such void under the statute of frauds. But where the vendor in such an oral contract has performed his part or is ready and willing to perform his part of it, the vendee cannot recover the money he has paid: Clark on Contracts, Chap. 12, p. 642, and cases there cited.

4. In this case the oral contract was to pay $1,000 for forty acres of land to which a road was to be completed within two months. The agreement • to build the road within the time specified was just as much a part of the contract as the agreement to convey the land. For the purpose for which plaintiff intended to use the property, it was practically valueless without a road by which he could get to it. Nobody would have bought the land and taken upon himself the building of so expensive a road as will be required here. By the oral contract, then, defendants bound themselves to do two things: First, to build a.road to the premises within two months; and second, to convey the land to plaintiff upon the payment of the la,st installment of the purchase price, on January 1, 1921.

Before the payment of the second installment, which was due January 1, 1920, defendants defaulted by failing to build the road, and the plaintiff rescinded and demanded a return of the $500 he had already paid. This is stating the alleged oral contract quite as strongly in favor of defendants as the testimony warrants. The statement that a road was to be built within two months, was no more a mere promise to do something in the future, than the promise, if there was one, that defendants would convey the land when the purchase price had been paid. The plaintiff was buying and paying not only for the land but for land which the defendants agreed should be accommodated with a road within two months, a valuable appurtenance to an otherwise comparatively worthless tract of brush and stumps. Up to June, 1920, when this case was tried, defendants had not built a road, and to compel plaintiff to lose the money he has already paid, or' to require him to pay the other installments and await the pleasure of defendants as to building the road they agreed to build within two months from April 29, 1919, would be grossly unjust.

5. An objection is urged that equity has no jurisdiction in this case and that plaintiff’s remedy should have been an action for money had and received. No demurrer or other objection of this character was raised in the Circuit Court, where the defendants answered and asked for equitable relief for themselves. The objection comes too late.

Owing to the conclusion here reached as to the result of the default of defendants, in failing to construct a road to the premises, we omit a discussion of other points raised both upon the pleadings and in the testimony.

The decree of the Circuit Court is affirmed.

Affirmed.