Collins v. Keller

124 P. 681 | Or. | 1912

Mr. Justice Burnett

delivered the opinion of the court.

1. The writing quoted is so vague and uncertain in its terms as to be unenforceable within the meaning of Catterlin v. Bush, 39 Or. 496 (65 Pac. 1064). For aught that appeared in the instrument the plaintiff and the defendant may have been brokers, one for the purchaser and the other for the seller; or for that matter both may have been acting as brokers for a purchaser, the plaintiff paying the money to the defendant to be advanced to the owner of the land as earnest money and taking this receipt as a memorandum of the transaction between the two brokers. It is not disclosed who is the buyer or who is the seller in the transaction.

2. Aside from its uncertainty, the memorandum is more decidedly unilateral than that which the court refused to enforce in the case of Friendly v. Elwert, 57 Or. 599 (105 Pac. 404: 112 Pac. 1085).

3. But if we concede, without deciding, that the memorandum is sufficient within the statute of frauds, and that both plaintiff and defendant were equally obligated by its terms, it cannot escape our notice that, while the title was to be furnished within a reasonable time or the deposit returned, there is no time specified within which the purchase price was to be paid. The operation of the law on a contract thus silent is that the part of the buyer must also be performed in a “reasonable time,” which means as soon as it can be done conveniently under all the circumstances.

4. Where the facts are undisputed, it is a question of law for the court to say what is the limit of reasonable time: Johnson v. Arrigoni, 5 Or. 485.

5. The testimony shows beyond dispute that more than two years elapsed before the plaintiff offered to pay, although the defendant had sought to either close the transaction or return the deposit and rescind the bargain. Meanwhile the property had doubled in value. In the light of these facts, we hold that the plaintiff’s long delay amounts to an abandonment of the contract on his part and renders it inequitable within the discretion of a court of equity to specifically enforce an agreement otherwise in good form: Chabot v. Winter Park Co., 34 Fla. 258 (15 South. 756: 43 Am. St. Rep. 192).

Moreover, by reason of the long delay from thé date of the contract to the commencement of the suit on September 24, 1909, the transaction savors so strongly of gambling on the price of real estate wherein the stake of the plaintiff is only $100, as against $6,000 on the part of the defendant, that the contract finds little favor in chancery.

The decree of the court below is reversed, and the suit dismissed, with leave to plaintiff, after he has paid the costs and disbursements of this suit, to take down the $100 tendered and paid into court for him by defendant.

Reversed and Dismissed.