ROSSMAN, C. J.
This is an appeal by the plaintiff from a judgment in favor of the defendant which was entered in an action instituted to recover damages in the sum of $1,200 on account of the defendant’s alleged breach of a contract signed by the parties March 26,1946. The
judgment is based upon findings of fact and conclusions of law.
The assignments- of error are:
“The court erred in making finding of fact Number Six.”-
“The court erred in entering judgment for the defendant, for. the findings of fact do ;not support the conclusion of law nor the judgment.”
“The court erred in not entering judgment for plaintiff.”
A copy of the aforementioned contract follows:
“March 26,1946
“RECEIVED OP E. C. Reddick, as purchaser, the sum of $200.00 as earnest money and in part payment of the purchase of the following described property situated in Multnomah County,. Oregon: Portland. 2631 S. E. 43. Has 60 days to Sell. 3956 N. E. Couch, which premises have this day been sold to saidpurchaser for the sum of $6500.00, payable as follows: $200.00 above receipted for and $6300. upon acceptance of title and delivery of good title, balance . . . Subject to acceptance by owner, who shall furnish abstract or title insurance showing good and marketable title. Sale. to be completed on or before..................... If owner does not approve sale, or cannot furnish marketable title within reasonable time, earnest money- herein receipted for shall be refunded, but if owner approves sale and title is marketable and the purchaser fails to complete purchase as above specified, the earnest money herein receipted for shall be forfeited to the undersigned agent to the extent of agreed upon commission, and residue to owner as liquidated, damages. Possession of the above described premises is to be delivered to the purchaser immediately on delivery of the deed or contract above mentioned or on........................, 19........, or as soon thereafter as
existing laws and regulations will permit removal of tenants, if any. Time is the essence of this contract.
................................................Agent
“I hereby agree to purchase above property upon above mentioned terms and conditions.
(Purchaser) /s/ E. C. Reddick
Address 3956 N. E. Couch
Phone YE 3640
“I approve and accept the above sale and agree to above mentioned terms and conditions and agree to pay forthwith to said agent a commission of $................for services rendered in this transaction.
(Owner) /s/ Jack Magel.”
The contract was written by hand upon a printed option form. It will be observed that after the name “Portland”, near the beginning of the instrument, are two street addresses. One is the property which was the subject matter of the contract, and the other is the plaintiff’s address.
The complaint alleges and the answer admits that the parties signed the above-quoted contract. The answer makes no averment or intimation of fraud, deceit, mistake or incompleteness in the writing. The plaintiff alleges and the defendant admits that the former paid $200 earnest money concurrently with the signing of the contract. The complaint says:
“On or about May 21, 1946, plaintiff demanded of the defendant that the defendant furnish an abstract or title insurance showing good and marketable title as provided in said contract, which the defendant then, and at all times since, has failed and refused to do.
“At the time of said demand, and at all times
since, plaintiff has been ready, willing and able to perforin all of the provisions of said agreement on his part to be performed.”
The answer alleges:
“On the 26th day of March, 1946, Plaintiff and Defendant entered into the following written agreement: * * * ”
Then follows by quotation a copy of the agreement of March 26, 1946, which is set forth in a preceding paragraph of this opinion. The fourth paragraph of the answer avers:
“ On or about the 18th day of May, 1946, Plaintiff notified Defendant that he would pay Defendant the balance of the purchase price of said premises' in the sum of Six Thousand Three Hundred Dollars ($6,300.00) upon the delivery of possession thereof but only upon the express condition that possession be delivered within about three days thereafter.
“Defendant under said agreement was. not obligated to deliver possession within about three days * ^ >JSc J >
The first finding of fact recites:
“On March 26, 1946, the plaintiff and defendant executed, signed, and delivered in writing the following memorandum, to-wit: * * *”
Then follows a copy of the agreement of March 26.
The fifth finding states:
“On or about May 18, 1946, plaintiff notified the defendant that he would pay the defendant the balance of the purchase price of said premises in the sum of $6300.00 upon delivery by the defendant to the plaintiff of evidence of marketable title to said premises in the defendant, and without any
other condition whatsoever. The defendant did not at said time nor at any time deliver to the plaintiff evidence of marketable title to said premises in the defendant.”
The sixth finding follows:
“There was no meeting of the minds of the parties as to the terms of the alleged contract of purchase, and, therefore, no agreement between them; that defendant had promised to deliver possession within 30 days after completion of the purchase of said property, but that plaintiff demanded immediate possession upon completion of said purchase and that plaintiff, therefore, failed to accept or perform in accordance with defendant’s offer.”
The conclusion of law is:
“There was no binding agreement between the parties hereto, and that Defendant is entitled to a Judgment herein that Plaintiff take nothing, dismissing Plaintiff’s Complaint, and for his costs and disbursements herein incurred.”
It is seen from the pleadings that the parties are agreed that on March 26, 1946, they entered into the contract which, is the foundation of this action. As we said, there is no contention that the execution of the contract was improperly induced. There is no averment that the contract is incomplete nor that the relationship of the parties was subject to an additional agreement.
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ROSSMAN, C. J.
This is an appeal by the plaintiff from a judgment in favor of the defendant which was entered in an action instituted to recover damages in the sum of $1,200 on account of the defendant’s alleged breach of a contract signed by the parties March 26,1946. The
judgment is based upon findings of fact and conclusions of law.
The assignments- of error are:
“The court erred in making finding of fact Number Six.”-
“The court erred in entering judgment for the defendant, for. the findings of fact do ;not support the conclusion of law nor the judgment.”
“The court erred in not entering judgment for plaintiff.”
A copy of the aforementioned contract follows:
“March 26,1946
“RECEIVED OP E. C. Reddick, as purchaser, the sum of $200.00 as earnest money and in part payment of the purchase of the following described property situated in Multnomah County,. Oregon: Portland. 2631 S. E. 43. Has 60 days to Sell. 3956 N. E. Couch, which premises have this day been sold to saidpurchaser for the sum of $6500.00, payable as follows: $200.00 above receipted for and $6300. upon acceptance of title and delivery of good title, balance . . . Subject to acceptance by owner, who shall furnish abstract or title insurance showing good and marketable title. Sale. to be completed on or before..................... If owner does not approve sale, or cannot furnish marketable title within reasonable time, earnest money- herein receipted for shall be refunded, but if owner approves sale and title is marketable and the purchaser fails to complete purchase as above specified, the earnest money herein receipted for shall be forfeited to the undersigned agent to the extent of agreed upon commission, and residue to owner as liquidated, damages. Possession of the above described premises is to be delivered to the purchaser immediately on delivery of the deed or contract above mentioned or on........................, 19........, or as soon thereafter as
existing laws and regulations will permit removal of tenants, if any. Time is the essence of this contract.
................................................Agent
“I hereby agree to purchase above property upon above mentioned terms and conditions.
(Purchaser) /s/ E. C. Reddick
Address 3956 N. E. Couch
Phone YE 3640
“I approve and accept the above sale and agree to above mentioned terms and conditions and agree to pay forthwith to said agent a commission of $................for services rendered in this transaction.
(Owner) /s/ Jack Magel.”
The contract was written by hand upon a printed option form. It will be observed that after the name “Portland”, near the beginning of the instrument, are two street addresses. One is the property which was the subject matter of the contract, and the other is the plaintiff’s address.
The complaint alleges and the answer admits that the parties signed the above-quoted contract. The answer makes no averment or intimation of fraud, deceit, mistake or incompleteness in the writing. The plaintiff alleges and the defendant admits that the former paid $200 earnest money concurrently with the signing of the contract. The complaint says:
“On or about May 21, 1946, plaintiff demanded of the defendant that the defendant furnish an abstract or title insurance showing good and marketable title as provided in said contract, which the defendant then, and at all times since, has failed and refused to do.
“At the time of said demand, and at all times
since, plaintiff has been ready, willing and able to perforin all of the provisions of said agreement on his part to be performed.”
The answer alleges:
“On the 26th day of March, 1946, Plaintiff and Defendant entered into the following written agreement: * * * ”
Then follows by quotation a copy of the agreement of March 26, 1946, which is set forth in a preceding paragraph of this opinion. The fourth paragraph of the answer avers:
“ On or about the 18th day of May, 1946, Plaintiff notified Defendant that he would pay Defendant the balance of the purchase price of said premises' in the sum of Six Thousand Three Hundred Dollars ($6,300.00) upon the delivery of possession thereof but only upon the express condition that possession be delivered within about three days thereafter.
“Defendant under said agreement was. not obligated to deliver possession within about three days * ^ >JSc J >
The first finding of fact recites:
“On March 26, 1946, the plaintiff and defendant executed, signed, and delivered in writing the following memorandum, to-wit: * * *”
Then follows a copy of the agreement of March 26.
The fifth finding states:
“On or about May 18, 1946, plaintiff notified the defendant that he would pay the defendant the balance of the purchase price of said premises in the sum of $6300.00 upon delivery by the defendant to the plaintiff of evidence of marketable title to said premises in the defendant, and without any
other condition whatsoever. The defendant did not at said time nor at any time deliver to the plaintiff evidence of marketable title to said premises in the defendant.”
The sixth finding follows:
“There was no meeting of the minds of the parties as to the terms of the alleged contract of purchase, and, therefore, no agreement between them; that defendant had promised to deliver possession within 30 days after completion of the purchase of said property, but that plaintiff demanded immediate possession upon completion of said purchase and that plaintiff, therefore, failed to accept or perform in accordance with defendant’s offer.”
The conclusion of law is:
“There was no binding agreement between the parties hereto, and that Defendant is entitled to a Judgment herein that Plaintiff take nothing, dismissing Plaintiff’s Complaint, and for his costs and disbursements herein incurred.”
It is seen from the pleadings that the parties are agreed that on March 26, 1946, they entered into the contract which, is the foundation of this action. As we said, there is no contention that the execution of the contract was improperly induced. There is no averment that the contract is incomplete nor that the relationship of the parties was subject to an additional agreement.
According to evidence presented by the defendant, he and the plaintiff indulged in discussion prior to the signing of the agreement in regard to the amount of time which would be available to the defendant to vacate the premises after the plaintiff had satisfied himself concerning the title and had paid the .balance
of the purchase price, $6,300. That evidence was variable. By reverting to the quoted agreement, it will be seen that it specified the time for delivery of possession. The defendant’s brief, referring to this evidence, says:
‘ ‘ The written contract is more favorable to the defendant than the alleged verbal agreement. * * * The contract then is more favorable to defendant than the verbal agreement testified to by defendant.”
We think that evidence tending to show a contemporaneous oral agreement inharmonious with the written agreement was inadmissible. Our reasons are: (1) The answer alleged as the agreement of the parties identically the same contract which was set forth in the complaint, and mentioned no other agreement; (2) sections 2-214 and 2-909, subd. 6, O. C. L. A., which are, respectively: '
“When the terms of an agreement have been reduced to writing by the parties it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except •***.’.’
“In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribéd by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: * * *
“ (6) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein; * *
As we saw-from'our-quotations from the defend
ant’s brief, the defendant states that the contract which the parties signed May 26, 1946, is more favorable to 'him than the purported oral agreement which would have granted him only thirty days in which to vacate the premises. The written agreement says:
“Possession of the above-described premises is to be delivered * * * as soon thereafter as existing laws and regulations will permit removal of tenants.”
There were introduced in evidence the regulations pertaining to defense-rental areas promulgated by the Office of Price Administration. Under them a tenant has at least three' months to vacate. According to our understanding of the defendant’s position, he does not claim that the effect of the evidence which he presented in contravention of the written instrument was to modify the latter, but to prove that the minds of the .parties never met. As we have said, we think that evidence was inadmissible and that it must be denied effect.
The quotation which we made from the pleadings renders it cleár that the following part at least of the conclusions of law is in error:
‘ ‘ There was no binding agreement between the parties.” The complaint, answer and Finding No. 1 state that on March 26, 1946, the parties executed the agreement which is copied in a preceding paragraph of this opinion. Hence, we start from the premise that the parties were bound by that agreement.
Finding No. I7!, as we have seen, says:
“There was no meeting of the minds of the parties as to the terms of the alleged contract of purchase, and, therefore, no agreement between
them; that defendant had promised to deliver possession within 30 days after completion of the purchase of said property, but that plaintiff demanded immediate possession upon completion of said purchase.”
If the plaintiff’s expressed readiness to complete the purchase by paying the balance of $6,300 was subject to an unwarranted condition, this action can not be •maintained, but Finding No. V, which refers to the plaintiff’s expressed readiness to pay the defendant the balance of $6,300, says that the offer was made “without any other condition whatsoever.” In other words, when the plaintiff told the defendant that he was ready to pay the balance, he made only one demand, and that was that the defendant furnish evidence of marketable title. It is agreed that the contract authorized the plaintiff to make that demand.
Even if the plaintiff expressed readiness to pay the balance of the purchase price had been subject to an improper condition, that circumstance could not have justified the entry of the finding, ‘ ‘ There was no meeting of the minds of the parties as to the terms of the alleged contract,” nor of the conclusion of law, “There was no binding agreement between the parties.”
We are satisfied that the agreement' previously quoted was in effect and governed the rights of the parties. According to 3 Am. Jur., Appeal and Error, page 463, § 898:
“Where findings of fact are so inconsistent that it is impossible to harmonize them, it is the duty of the appellate court to accept those which are most favorable to the appellant.”
We conclude that when the plaintiff, on May 18,
told the defendant that he was ready to pay the balance of the purchase price he exacted only one condition, and that was that the defendant furnish the plaintiff with evidence showing that his title was marketable. Under the contract, the defendant was required to furnish the plaintiff with an abstract of title or title insurance showing marketable title. By adverting to the fifth finding, it will be observed that it says:
“The defendant did not at said time nor at any time deliver to the plaintiff evidence of marketable title to said premises in‘the defendant.”
It is our belief that the plaintiff sought to comply with the contract and demanded of the defendant that he also comply with it. We are satisfied that the defendant, instead of complying with the agreement, breached it. We sustain assignments of error I and II.
The measure of damage is the value of the property less the unpaid portion of the purchase price. The plaintiff swore that the market value of the property at the time of the breach was $7,500. The defendant testified that shortly after May of 1946 he sold the property for $7,000 and that that sum represented its value. The plaintiff’s brief says: “Appellant therefore respectfully submits that judgment should be entered by this court in his favor against the respondent for his damages of $700.00.” We sustain the third assignment of error, and remand the cause to the Circuit Court with instructions to enter judgment in favor of the plaintiff in the sum of $700.00, together with costs and disbursements.