Elmore v. Stephens-Russell Co.

171 P. 763 | Or. | 1918

BENSON, J.

It will be observed that the pleadings involve a number of questions, but we deem it necessary to consider but one and that is the plea of estoppel based upon the allegations that after the destruction of the timber by the forest fire in the year 1910, H. B. Moyer went to the defendant and asked to be released from the contract, for the reason that he had a purchaser who was ready to pay a better price for the land, and that his request was refused. The evidence upon which plaintiffs rely to sustain this contention consists of the testimony of Mrs. H. B. Moyer to the effect that shortly after the forest fire in 1910 she with her husband visited defendant’s office in Portland; and while there the contract was discussed by Moyer and Russell and the following question and answer appear in the record:

‘ ‘ Question: The question I started to ask you is this: What did he say about somebody else wanting to take the land?”

“Answer: Well, there was some men up there that wanted to buy it at so much per stumpage and he thought he could sell it that way and he wanted to release it on that account.”

This was followed by the testimony of two brothers by the name of Sawyer, who testified that shortly after the fire they conceived the plan of buying all of the damaged timber in that vicinity at a low price and manufacturing it into timber at their mill; that in pursuance of this idea they interviewed Moyer who told them that he had no timber in that vicinity and referred them to Russell; that they went to Portland and interviewed Russell and the local representative of the Weyerhaeuser Company; that Russell told them that his company had some timber in the burned region which he would sell on a stumpage basis; that when the Weyerhaeuser Company declined to do business with them they abandoned the scheme; and that the specific tracts in controversy here were not mentioned by them. Russell testified that in the year 1912 there was ■ some talk between him and Moyer in reference to a relinquishment of the contract and that he expressed his willingness to do so, but that the controlling power in the corporation was Stephens with whom he advised Moyer to correspond directly or through his attorney, Mr. Weatherford.

1. The foregoing is substantially all the evidence in support of the plea of estoppel. This showing is altogether too vague and indefinite to establish the plea. It is not shown that Moyer had any buyer in view, or that he was in any way injured by the conduct of the defendant. In 10 R. C. L., p. 697, the established doctrine is quite clearly expressed thus:

“The final element of an equitable estoppel is that the person claiming it must have been misled into such action that he will suffer injury if the estoppel is not declared. That is, the person setting up the estoppel must have been induced to alter his position, in such a way that he will be injured if the other person is not held to the representation or attitude on which the estoppel is predicated.”

2. From the evidence it appears that at the time the contract was executed the land was chiefly valuable for its timber and that in the year 1910 a forest fire destroyed nearly all the timber on one of the tracts and about half of that on the other. No payments had been made on the purchase price and defendant had never had possession of the premises. Under these circumstances it has been held by this court that specific performance cannot be had: Powell v. Dayton, Sheridan & Grande Ronde R. R. Co., 12 Or. 488 (8 Pac. 544).

It follows that the decree of the lower court must be reversed and the suit dismissed.

Reversed. Suit Dismissed.

Rehearing Denied.

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