Henrickson v. Hillsboro Garden Tracts

152 P. 495, 78 Or. 96, 1915 Ore. LEXIS 24

• Court: Oregon Supreme Court
• Decided: November 9, 1915
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

1. The only evidence relating to the allegation of promised employment is found in the testimony of plaintiff, who said, when referring to the improvement of Division Street, that:

“I was told that they were going to commence it in the fall, and that everybody out there was going to get work on the road. ”

The allegation that the defendant represented to Martha Henrickson that improved streets and roads would immediately be provided is not referred to by the testimony of any witness except the plaintiff, who said:

“He showed me also the road [Division Street] where the company was going to build, where it was going to be.”

When speaking of the value of potatoes, the plaintiff also testified that the selling agent told her that potatoes were worth $1.25 per sack; and there is no other evidence in the record concerning the averment about potatoes, except the evidence of plaintiff to the effect that the crop raised by her was worth only 25 cents per sack. The record is silent upon the remaining allegations appearing in the complaint, unless it be claimed that the printed circulars contained representations which relate to the vegetable ear, the preserving plant, the value of improved lands around Hillsboro, and the building of cement walks. The plaintiff testified that advertising literature was handed to her, but there is no evidence to indicate that she either read or relied ,upon any of the printed statements. It clearly appears from the record that the defendant did intend to open and improve Division Street and the corporation actually let a contract for the work; and it is quite apparent from the testimony of plaintiff herself that the statement concerning employment was merely a conclusion or opinion which was predicated upon the contemplated improvement of Division Street. The plaintiff has failed to offer any evidence concerning a portion of the complaint, and the testimony relevant to the remaining allegations only shows mere opinions or predictions, or indicates a promise to do something which the defendant actually intended to do, and therefore the plaintiff is not entitled to relief: Marshall v. Hillsboro Garden Tracts, ante, p. 89 (152 Pac. 493).

2. There is evidence that the defendant made other representations, which are not even mentioned in the complaint, but they cannot be availed of. The plaintiff has not presented a situation, arising out of and confined to the complaint and evidence relevant to the recorded allegations, which will warrant a rescission of the written agreement.

The decree is reversed and the suit is dismissed.

Reversed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur.