Wilson v. Prettyman

185 P. 587, 94 Or. 275, 1919 Ore. LEXIS 223

• Court: Oregon Supreme Court
• Decided: December 9, 1919
• Status: Published

Opinion

BENSON, J.

1. The substantial issues in this case are to be found in the defendant’s cross-complaint and the reply thereto. The defendant relies entirely upon the terms of the bill of sale for her right to enter upon plaintiff’s lands to cut and remove the standing timber. Plaintiff’s reply admits the execution of this contract by himself and wife, but alleges that it was signed by them, without reading it, relying upon- defendant’s representation that it was framed in accordance with their prior agreement, and that there was no consideration for its execution, and that the instrument was so framed by defendant for the purpose of cheating and defrauding the plaintiff.

The plaintiff and his wife both testify that the bill of sale was read to them by the defendant before its execution, and that they were also furnished with a carbon copy thereof. They also testify that when it ;was read to them, Mrs. "Wilson said to her husband: “Are you going to sign that?” And when he assured her that he was, she reluctantly joined in its execution. Upon his cross-examination, Dr. Wilson testified as follows:

“Q. What did she say?

“A. She read it; she didn’t say anything; she read it. All of the merchantable timber for lumber and Kate’s calf. * *

“Q. That is all it said, isn’t it?

“A. Yes, and Kate’s heifer calf provided it is taken within seven days. Then on the strength of that I signed it.

“Q. That is all it said. What is the difference between what you have just related and what it says in the contract- " -

“A. The contract is all right and what I say is all right; they agree entirely.” x

We must therefore dismiss from our consideration any question of misrepresentation as to the contents of the instrument.

2. This brings us to consider the question as to whether or not there was a consideration. The contract itself recites a nominal consideration of one dollar. It is also to be noted that the agreement is a sealed instrument, and such seal is primary evidence of a consideration: Section 776, L. O. L. The testimony of the defendant is to the effect that the transfer of the property described in the writing was simply part of a larger transaction, wherein she exchanged a house and lot in the City of Portland for 40 acres of land adjoining plaintiff’s farm, and the personal property which is the subject of this litigation. She also says, that in the larger deal, she valued this personal property at about $1,500. Upon the other hand, the plaintiff contends that the first conversation in which the transfer of the timber was mentioned occurred some weeks after every detail of the real estate transaction had been agreed upon, and at a time when that exchange was simply awaiting the preparation of the necessary conveyance. He says that it happened thus: That upon an occasion when the defendant was riding with him and his wife, in their automobile, Miss Prettyman asked him if there was any timber on her land, meaning the 40-acre tract which she had agreed to accept from him, in exchange for her house and lot in Portland. She said that she wished to build a house and barn thereon, to be occupied by her brother-in-law. Dr. Wilson replied:

“I don’t think there is a tree, but I said, if you will do that, if you will build a house, I will give you all the timber that you can use in the building of your house and bam, and, ‘I said, there isn’t anything but punk up there, except eight or nine trees, maybe six or eight trees, I don’t know.”

Mrs. Wilson corroborates her husband in this, saying:

“And then, coming in, in the machine, that day, Miss Prettyman was asking about whether there was any— if there was any timber on her place. Dr. Wilson told her no, but we had a good many — -several good trees on our place, and if she would build a house and bam that she was welcome to go and take -all the saw and merchantable timber to build her house and barn with— she could take off our place. He says: ‘You can take it all as far as I am concerned, but I am quite sure there are between eight and nine, maybe ten good trees that can be used for that purpose. ’ ”

Upon cross-examination, Mrs. Wilson explains further:

‘‘We were giving it to her so she would improve the neighborhood and thought it would increase the value of our place.”

3, 4. Upon this evidence, the trial court made a finding to the effect that the sole consideration for the transfer of the timber agreement upon the part of the defendant was to build a house and bam upon her property adjoining plaintiff’s farm, and this finding meets with our approval. However, the trial court went further, and held that since the defendant has not built any house and barn on the premises, there is a total failure of the consideration. We cannot agree with this conclusion for two reasons: First, there is no allegation in either of plaintiff’s pleadings touching a failure of consideration, or. that the house and barn have not been built, and no doctrine is better settled than that a total failure of consideration, and the facts constituting such failure must be pleaded, or evidence thereof cannot be considered: 13 C. J. 742, and cases' there cited. Second, it is difficult to see how the defendant could be expected to erect the buildings from the timber described in the contract, before it has been severed from the soil and removed to the mill.

5. It must not be overlooked that we have considered testimony of conversations in regard to the timber, which were had prior to the execution of the bill of sale, for the sole purpose of determining .the actual consideration for the transfer of the property, and not for the purpose of varying the terms of a written contract.

It appears from the evidence, that the seven trees already cut by the defendant are all merchantable timber suitable for lumber, and she is entitled to remove them. Whether or not there are additional trees of the same character upon the premises, we are unable to say; but if there are, they belong to tbe defendant, and sbe bas a right to cut and reüiove them, but is not entitled to any other kindi. As regards the cedar timber, it appears that the plaintiff has cut practically all of it, and manufactured it into- fence posts, one fourth of which belong to the defendant, upon payment by her of one fourth of the cost of such manufacture.

The possible failure of the defendant to perform her part of the contract, by building the house and bam upon her 40-acre tract, presents a question which can only be presented in some proper proceeding when such default has been properly established. It is not now before us.

A decree will be entered dismissing the suit without prejudice, neither party to recover costs in either court. Reversed. Suit Dismissed.

McBride, C. J., and Burnett and Bennett, JJ., concur.