90 P. 910 | Or. | 1907
Opinion by
Considering the defendant’s alleged mental condition at the time the note was given, he testified that on Sunday, August 21, 1904, he visited a saloon at Dalles City at about 11 o’clock in the forenoon, and played cards, taking a drink of whisky probably every half hour until the lights were turned on at night, when he left the building, intending to go home, but that he did not know where he went or what he did, except that he had a faint recollection of having signed some papers; that he could not remember when he reached his residence that night, and the next day he was so ill from the effect of excessive drinking that he remained in bed until 2 o’clock in the afternoon; that two days thereafter he was informed by the plaintiff that he
C. P. Johannsen, a saloon keeper, testified that on the Sunday in question, at about 6 o’clock in the evening, Wiley came into his place of business very drunk and staggering. The testimony of this witness is corroborated as to the defendant’s condition, by W. Dalrymple and E. P. Earley, who saw Wiley on the street about the hour last mentioned. T. Hayden and John Crate severally testified that on the evening referred to the defendant was .drunlc. J. Parodi testified that about 8 o’clock that night, as he and one T. A. Wood were standing on a street comer in front of a saloon, the defendant approached them in a drunken condition, and soon thereafter the plaintiff came along, whereupon the conversation turned upon real property; that, at Eagan’s invitation, they entered the saloon, where it was agreed that Wiley would buy the plaintiff’s lot for $5,000. Wood corroborates Parodi’s testimony, except that he states that Eagan was talking with them on the street about the value of certain propertjr, when the defendant arrived and offered $5,000 for the lot mentioned, in answer to Eagan’s inquiry as to what he would give for it, and, in referring to the defendant’s condition at .that time, he testified as follows: “As far as I could understand Mr. Wiley’s conversation, it was perfectly rational and in a business way.” It also appears that about 9 o’clock that night the parties subscribed their names to a contract, which, omitting their signatures and the names of the subscribing witnesses, is as follows:
“The Dalles, Oregon, Aug. 20, 1904
I agree to sell my property, situated on the corner of Third and Federal streets in Dalles City, Oregon, to W. N. Wiley for the agreed price of $5,000.00 (five thousand dollars). Payments to be made as follows: One thousand (1,000.00) in one year; one thousand (1,000.00) in two years, and two thousand*483 five hundred in three years. All to be at the rate of six per cent interest after deeds are made out, and Mr. Fagan is to finish the gutter on sidewalk from Fourth St. to Third, and also Mr. Fagan is to collect rent from the premises to the 15th of August, 1904.
I acknowledge the payment this day of five hundred dollars ($500.00) on above contract.”
The promissory note sought to be reformed is the payment referred to in the memorandum quoted. As these papers were prepared and signed on Sunday, they were dated as of the preceding day, except that the note contained in the upper right-hand corner the printed figures “189 — ,” after which the figure 4 was annexed. Crossen, as plaintiff’s witness, having testified that he prepared and reduced to writing the contract as the parties thereto mutually considered and agreed upon the terms, was interrogated as follows:.
“I will ask you to state what was Mr. Wiley’s mental condition at the time he signed this contract and discussed the matter and signed the note ?”
And the witness replied:
“Well, his mind seemed clear.”
The opinion thus expressed is corroborated by several other witnesses. The value of the real property at the time the contract was signed was about $2,500 or $3,000, as estimated by N. Whealdon and W. A. Johnson, respectively, who were competent to determine the worth thereof. The testimony further shows that the defendant owned at that time three lots which joined the premises described in the asnwer, and, when the contract was prepared, he stated that the land which he was buying was worth more to him than to any other person.
It is also maintained by defendant’s counsel that the description of the land, as given in the written memorandum, shows that the contract is too indefinite for specific performance, and, if a contrary conclusion should be reached, the testimony discloses that, as two houses are standing on the premises, the building erected at the corner of the street mentioned will supply the specification; and hence an error was committed in awarding the relief granted. Though the answer correctly de
It follows that the decree should be affirmed, and it is so ordered. Affirmed.