120 P. 413 | Or. | 1912
delivered the opinion of the court.
It will be noticed from the pleadings that the plaintiff and defendant allege different contracts; one agreement differing from the other mainly as to the sale of the tract of land for cash only.
“If you should find for the plaintiff under the original contract and find that it was agreed upon between the defendant and the parties who were negotiating the property that this property that was taken in exchange for his property was taken for the sum of thirteen thousand two hundred dollars, if you should find that that was the agreement between the parties at that time, then the plaintiff would be entitled to recover the difference between the nine thousand and thirteen thousand two hundred.”
In the different instructions given by the court, the jury were charged that they should take into consideration the reasonable value of the Los Angeles property, only in the event that they should find that the subsequent contract was made as claimed by defendant. To all of these instructions an exception was duly saved by defendant. Testimony as to the value of the California property was introduced by both parties without objection, and defendant strongly contends that this feature of the case should have been submitted to the jury. This is the main question in the case. Plaintiff’s counsel relies principally upon the case of Thornton v. Moody (Tex. Civ. App.) 24 S. W. 331. A careful examination of the latter case discloses that it differs from the case at bar, mainly
In Fagan v. Hook, 134 Iowa 381 (111 N. W. 981), an action to rescind a contract of exchange wherein it was claimed that an agreement had been made fixing the value of the properties exchanged, and that' this agreement was binding upon the parties, the court makes use of the following language:
“Ordinarily, where the action is for the recovery of property, and its value has been agreed upon by the parties, the measure of damages is the quantum thus fixed. * * If, on the other hand, the agreement is a mere trading contract, by the terms of which one party is to exchange certain property belonging to him for that of the other upon or by the payment of the difference, and to this end and for the purpose solely of accomplishing this result, but not to ascertain their actual values, estimates are placed on the respective properties, then neither party is bound by the values so estimated, and the measure of damages to be applied is that of quantum meruit. In other words, the values designated in the agreement to be binding on the parties must appear to have been specified as such, and not as merely incidental to some other purpose not involving the intention of deciding the true worth.”
The pleadings raise the issue as to the value of this property and testimony upon this point was introduced at the trial. There was also evidence tending to show that the value of the respective properties was fixed solely for the purpose of facilitating the exchange, as a mere incident to the trade, and not with the intent to determine the real worth thereof. The actual value of the Los Angeles property is the correct basis for ascertaining the amount received by defendant in excess of $9,000.
For the reason above stated, it follows that the judgment of the lower court must be reversed and the cause remanded for a new trial, and it is so ordered.
Reversed.