162 P. 254 | Or. | 1917
delivered the opinion of the court.
' It is admitted that all the negotiations about the sale of the land are found in the written correspondence of the parties, and from these letters alone the plaintiff draws the conclusion that a contract sufficient within the provisions of our statute of frauds was made for the breach of which he should recover damages. All the communications passed during the year 1914. On April 10th of that year the plaintiff wrote to the defendant inquiring if the land was for sale and asking the latter to name his price and terms. Omitting the year and the formal parts of the other letters, they here follow:
April 13th, Root to Dodge:
“Tours of the tenth received. The 20-acre tract that you referred to is owned by T. H. Curtis, deceased, and myself, one half each. I am executor of T. H. Curtis estate and have authority to give good title for both. * * The price is $2,500, one thousand cash, and most any reasonable time on the balance secured by mortgage on the land at 7 per cent interest.”
April 16th, Dodge to Root:
“I can take your offer of the 13th for the 20-acre tract if you will make the $1,500 in two notes of $750 in one year, and $750 in two years. Forward to the Astoria National Bank, Astoria, Oregon, an earnest-money receipt setting forth the following, and I will deposit to your credit the $100.00, to wit: Received of Chas. Dodge one hundred dollars as earnest in the purchase of [here give full legal description], containing 20 acres more or less, on the following terms and conditions, to wit: Upon satisfactory abstract, grantee agrees to pay $900 additional cash, and execute a mort*23 gage in the sum of $1,500 payable in two equal annual notes of $750 each, with interest thereon at the rate of 7 per cent per annum payable annually, and vendor to execute to vendee good and sufficient warranty deed. If this is satisfactory wire acceptance, as I have other properties under consideration and time is some item to me. # # ”
April 18th, telegram, Root to Dodge:
“Care Weinhard Hotel, Astoria, Oregon. If abstract shows title good will complete sale as stated soon as possible.”
April 26th, telegram, Dodge to Root:
“Stayed over in Astoria all week. No word through bank from you. If abstract not ready for examination wire your attorney to accept earnest-money as decision on other tracts must be made immediately. Will be Portland Monday, wire answer.”
April 28th, telegram Root to Dodge:
“811 Grantenbein Avenue, Portland, Oregon. See Davis. He has all papers. Letter by mail.”
April 28th, Root to Dodge:
“I have just received a letter from the Astoria Abstract Co. which I inclose. This you can show to Attorney Davis if you desire to do so, as he has all the papers. If you are not satisfied with the title, which I consider good, I would not accept a payment, so you had better consult Mr. Davis and then if you are satisfied we will receive payment.”
May 7th, Dodge to Root:
‘ ‘ One week ago yesterday your attorney, Davis, prepared an earnest-money receipt for the purchase of the 20 acres that we have had under advisement, and forwarded the same to you assuring me that it would be signed and forwarded to the Astoria National Bank here for my payment of the $100.00, awaiting the completion of the abstract and acceptance of the same by my attorney.”
“Yours of the seventh received. Also the receipt for first payment as prepared by Attorney Davis. This receipt is not as originally worded for this you will see gives you a straight option on the land for 60 days for $100. I do not think best to do that. * * ”
May 12th, Dodge to Eoot:
“Yours of the 10th at hand this morning and I presume you can imagine my surprise at the turn things have taken. I believe that you have mistaken the purport of the earnest-money receipt, returned, as I tried to make it plain to your attorney that as soon as the abstract was brought to a state of perfection that would bear the stamp of merchantable title the $1,000 was ready for you. If you have any doubt about a sale I will place the $1,000 in escrow in any bank you name subject to your check upon satisfactory abstract. As the abstract, I understand, is here and I also, if the bank I named here is satisfactory eliminate the 60-day feature if you wish and send your instructions to the bank. The point that the attorney seemed to make was the manner of your giving title, seeming to think that the way in which you proposed in your first communication might have caused both you and I some inconvenience. The earnest-money agreement he prepared seems to cover that feature, and as I stated above, the matter of the genuineness of a sale can readily be arranged if desired. ’ ’
The telegram from Root to Dodge of April 28th, does not amount to an acceptance. In the letter of May 7th, Dodge again manifests the state of his mind to be that the contract was not yet completed, for he speaks of awaiting the completion of the abstract and acceptance of the same by his attorney. From his standpoint there was that much yet to be done before he would be ready to close the negotiations and make a contract. In his letter of May 10th Root protests that the form of receipt which Dodge had forwarded in his letter of the 7th was not as originally worded; and finally, the plaintiff proposes other terms in his letter
The demurrer to the complaint should have been sustained. There is error as alleged, and the judgment is reversed. Reversed. Rehearing Denied.