Reid v. Savage

117 P. 306, 59 Or. 301, 1911 Ore. LEXIS 143

• Court: Oregon Supreme Court
• Decided: July 25, 1911
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. In our judgment the evidence in this case fails to show that any title to Savage’s interest in the partnership business ever passed to plaintiffs. The alleged contract, by virtue of which plaintiffs claim that they became owners of the interest, consists of certain alleged promises of Savage, and the written document contained in the foregoing statement. The promises, detailed by plaintiffs in their testimony, are as follows: Reid testied:

“The agreement we had at that time was that Mrs. Reid should come in and keep the books without any compensation; that Mr. Savage at his death, or when he was through with the business, would leave us his half of the business.”

Mrs. Reid testifies:

“My father said, if Mr. Reid and I would come in there and work hard, and let him work when he wanted to, he would just use it as long as he was able to use it; then he would give it to us — the whole business.”

Neither of these statements constitute a present transfer of an interest in the business. They constitute, if anything, an executory contract to do something in the future, and are indefinite in their terms. In Reid’s statement, which differs materially from that of his wife, there is nothing to indicate how long Mrs. Reid was to work without compensation. Was it for a month, a year, or as long as Savage should continue in business? The terms of the alleged contract are silent, and so is the testimony. There is a like hiatus in the terms of the contract as stated by Mrs. Reid. Nothing is stipulated as to the length of time she and her husband were to “work hard.” Old age had incapacitated Savage from doing hard work, and each succeeding year would add to that incapacity, and consequently to the necessity of his having assistance; and yet we find that the plaintiffs sold out and left the business before Savage was ready to quit. It is true he made no remonstrance, and may have thought, under the circumstances, that it was best for Reid to engage in some other and more healthful employment; but there is nothing to indicate that he expected to fulfill his promise to leave them the business, after they chose to cease to assist him, and left the burden of attending to his interest therein entirely upon his own shoulders. Considered in its strongest light, even if plaintiffs had remained with him and labored diligently to the end, the promise conveyed no interest in the property. If he sold out in violation of the promise, plaintiffs might have a cause of action against him for a breach of the contract, but no cause of suit against him as trustee of the proceeds of the sale.

2. The alleged written contract conveyed no interest in the property. On its face it purports to be the contract of both parties, but it is signed by only one of them. It purports to be in duplicate; but neither original is produced. It is unilateral in this: That the parties of the second part, not having signed it, are not bound to perform any of the acts required of them by the terms of the instrument. If Savage had experienced reverses in the feed business, leaving it in such a condition that its assets would not meet the liabilities, neither the creditors nor the personal representatives of the Savage estate could have compelled plaintiffs to discharge these liabilities. They could have pointed to the statute of frauds, and said, “We did not sign this paper, and therefore cannot be compelled to pay Savage’s debts.” Where both parties are not bound, neither is bound. The document is worthless as a substantive contract, and plaintiffs have not declared upon it as such.

3. We are satisfied from the evidence that at the beginning of the partnership there was some intimation or suggestion on the part of Savage that when he was through with the business he would turn it over to plaintiffs ; but it is more than probable that his intention was predicated upon the supposition that plaintiffs would remain in the business as long as he continued to be connected with it, and that when Reid sold his interest and withdrew from the firm it was understood by all parties that the promise had become nugatory. Savage’s conduct in selling his interest in the business indicated that he considered it as his own. Plaintiffs knew that he had sold his interest to Kruse, and made no protest or suggestion that the money derived from the sale was their money. They knew later that he had sold his remaining interest, and they still made no protest or request that the money be secured to them. Their claim is that they were to have the business “when he was through with it,” and he was certainly through with it when he sold it out entirely and withdrew therefrom. Then, if ever, they had a cause of action against him for breach of his contract; then was their time to speak. Instead of this, they chose to remain silent until death had sealed the lips that alone could give his side of the controversy. Had they urged this claim in his lifetime, it would have afforded him an opportunity of making provision for his widow out of other property, in case he failed to establish his and her right to the property in dispute here. That plaintiffs should be permitted, first, to speculate on the chances of a favorable will, and, having received all they could from that source, be permitted now, after years of silence, to urge this claim, to the detriment of his widow, is inequitable and such laches as should not be favored in a court of conscience.

The decree of the circuit court is reversed, and one will be entered here for the defendant. Reversed.