Schreiner v. Banton

Court of Appeals of Oregon

Schreiner v. Banton

595 P.2d 510, 40 Or. App. 413, 1979 Ore. App. LEXIS 2151

CourtCourt of Appeals of Oregon

DecidedMay 29, 1979

DocketNo. 36-282, CA No. 11109

StatusPublished

This text of 595 P.2d 510 (Schreiner v. Banton) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schreiner v. Banton, 595 P.2d 510, 40 Or. App. 413, 1979 Ore. App. LEXIS 2151 (Or. Ct. App. 1979).

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Opinion

LEE, J.

After denial of a claim which was filed against decedent’s estate for approximately 23 years of services performed for decedent commencing in 1952, plaintiff filed a suit for specific performance of an oral contract to make a will. The court found for plaintiff and ordered specific performance.

Defendant contends that (1) there was no clear and convincing evidence to support the finding and (2) that plaintiff failed to produce "some competent, satisfactory evidence” other than his own testimony as required by ORS 115.195.¹ We affirm.

This court reviews suits in equity de novo on the record. ORS 19.125(3). An oral contract to devise or bequeath property must be proved by clear and convincing evidence. Krueger v. Ropp, 282 Or 473, 478, 579 P2d 847 (1978). To be entitled to specific performance of an oral contract, an offer must be so definite in its terms or require such definite terms in the acceptance, that promises and performances to be rendered by each party are reasonably certain. Friesen v. Fuiten, 257 Or 221, 230, 478 P2d 372 (1970); Restatement of Contracts § 32 (1932).

At trial plaintiff testified that decedent, Mrs. Riley, offered to leave him the "estate” when she and her husband were gone if plaintiff would stay and help them take care of the farm and care for them if they became ill. Other witnesses verified different pieces of this story and recalled it with differing degrees of completeness, but no piece of evidence offered by either side contradicted it. Indeed, Mrs. Weston, a friend of Mrs. Riley’s, testified that Mrs. Riley told her that the Rileys had offered plaintiff a place to live, saying that "if he would stay and help them he would get everything when they were gone.”

[416]*416The only ambiguity in the evidence concerning the agreement involves the scope of "the estate” covered by the promise. The estate included a dairy farm and certain other property. Some witnesses testified that plaintiff was to receive "the farm,” others referred to "the property,” "the estate,” or "everything.” In any event, it is clear that plaintiff was to receive at least the farm and that plaintiff performed his part of the bargain. After considering the testimony, the trial court ruled that plaintiff was to have the dairy farm and appurtenances but not the whole estate. We agree.

Assuming, arguendo, that ORS 115.195 applies, the testimony of Mrs. Weston, quoted above, satisfied the requirement of that statute.

Affirmed.

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LEE, J.

After denial of a claim which was filed against decedent’s estate for approximately 23 years of services performed for decedent commencing in 1952, plaintiff filed a suit for specific performance of an oral contract to make a will. The court found for plaintiff and ordered specific performance.

Defendant contends that (1) there was no clear and convincing evidence to support the finding and (2) that plaintiff failed to produce "some competent, satisfactory evidence” other than his own testimony as required by ORS 115.195.¹ We affirm.

This court reviews suits in equity de novo on the record. ORS 19.125(3). An oral contract to devise or bequeath property must be proved by clear and convincing evidence. Krueger v. Ropp, 282 Or 473, 478, 579 P2d 847 (1978). To be entitled to specific performance of an oral contract, an offer must be so definite in its terms or require such definite terms in the acceptance, that promises and performances to be rendered by each party are reasonably certain. Friesen v. Fuiten, 257 Or 221, 230, 478 P2d 372 (1970); Restatement of Contracts § 32 (1932).

At trial plaintiff testified that decedent, Mrs. Riley, offered to leave him the "estate” when she and her husband were gone if plaintiff would stay and help them take care of the farm and care for them if they became ill. Other witnesses verified different pieces of this story and recalled it with differing degrees of completeness, but no piece of evidence offered by either side contradicted it. Indeed, Mrs. Weston, a friend of Mrs. Riley’s, testified that Mrs. Riley told her that the Rileys had offered plaintiff a place to live, saying that "if he would stay and help them he would get everything when they were gone.”

[416]*416The only ambiguity in the evidence concerning the agreement involves the scope of "the estate” covered by the promise. The estate included a dairy farm and certain other property. Some witnesses testified that plaintiff was to receive "the farm,” others referred to "the property,” "the estate,” or "everything.” In any event, it is clear that plaintiff was to receive at least the farm and that plaintiff performed his part of the bargain. After considering the testimony, the trial court ruled that plaintiff was to have the dairy farm and appurtenances but not the whole estate. We agree.

Assuming, arguendo, that ORS 115.195 applies, the testimony of Mrs. Weston, quoted above, satisfied the requirement of that statute.

Affirmed.

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595 P.2d 510, 40 Or. App. 413, 1979 Ore. App. LEXIS 2151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schreiner-v-banton-orctapp-1979.

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