102 P. 178 | Or. | 1909
delivered the opinion of the court. Upon the trial, Maguire, as plaintiff’s witness, testified that his occupation was that of a real estate agent, and that he was acquainted with the defendant. When asked to state what, if any, arrangement or authority was given him by defendant relative to the sale of his property, an objection was interposed by defendant to the effect that, as the matter inquired about, concerned the sale of real property, his authority should be in writing. Thereupon, without the question having been answered, plaintiff offered in evidence the first receipt above noted, which was received in evidence over defendant’s objections. The second receipt or memorandum was then offered, but was objected to by defendant, upon the ground that it appeared to be a memorandum of a transaction between parties different from those mentioned in the first receipt, and that the description of the property therein was insufficient to identify it. The objection was sustained. Plaintiff was then permitted, subject to defendant’s objections, and notwithstanding the ruling of the court sustaining the same, to place in the record parol testimony of Maguire that he had verbal authority from defendant to procure for him a purchaser for the premises for $800, upon the terms stated in the memoranda; that he secured Kregar as a purchaser for the price, and upon the terms stated in the first receipt; that he reported the same to defendant for his confirmation, and paid him $45 of the money received from Kregar; that defendant executed and delivered to him the second receipt or memorandum, which he thereafter delivered' to Kregar, and that the two receipts referred to the same transaction. The plaintiff also gave testimony respecting the assignment to him by Kregar of his rights under the contract, which assignment is in writing and indorsed upon the first receipt.
In Crotty v. Effler, 60 W. Va. 258 (54 S. E. 345), it is said, at page 263, that: “Although the state, county, and district may be omitted from the description, it is essential that the land agreed to be sold be so described as to be capable of being distinguished from other lands. It is not necessary that the contract should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely what was agreed to be sold.” It should, however, contain a sufficient description to evidence a common intent of the parties to deal with respect to a particular piece of property as distinguished from other property. In this view the memoranda evidencing the contract are sufficiently specific to identify the property, when it is admitted and shown that there is, in Multnomah County, Oregon, a duly recorded plat of Albina Homestead, containing lots of the numbers and block corresponding to those stated in the memoranda.
In Knox v. King, 36 Ala. 369, it was held that, when the memorandum in writing is itself complete, it cannot derive aid from another writing, unless the memorandum referred to the other writing, and also that oral evidence cannot be received to connect the two, or supply the wanting links. But in Jenkins v. Harrison, 66 Ala. 345, 357, it was held that the rule was not absolute, and that there are cases in which parol evidence of contemporaneous facts and of circumstances in which the parties were when the writings were signed will be received in evidence. Thayer v. Luce, 22 Ohio St. 62; Salmon Falls Mfg. Co. v. Goddard, 55 U. S. (14 How.) 446 (14 L. Ed. 493); Beckwith v. Talbot, 95 U. S. 289 (24 L. Ed. 496). In this last case it was said: “There may be cases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such proof. If there is ground for any doubt in the matter, the general rule should be enforced. But when there is no ground for doubt, its enforcement would aid, instead of discouraging fraud.” In a still later case, that of White v. Breen, 106 Ala. 159 (19 South. 59: 32 L. R. A. 127), that court again emphasizes the following exception to the general rules stated by that court in Knox v. King, 36 Ala. 369: That the first rule there announced does not necessarily require express mention in one document of another, or in each of all other documents; that the second rule is subject to the exception which obtains generally in the construction of written contracts; that the situation and circumstances of the parties may be looked to, when necessary, to aid in arriving at the meaning of the parties from
From these considerations it necessarily follows that the decree of the trial court should be reversed, and one entered here requiring the defendant to accept and receive the tender made to him by the plaintiff, and to convey to the plaintiff, by a good and sufficient warranty deed, the premises described in the complaint, within 30 days from and after the filing of the mandate in the court below, and, in default thereof, that such decree stand for, and be equivalent to, a conveyance of the title thereof from the defendant to the plaintiff; and it is so ordered. Reversed: Decree Rendered.