152 P. 891 | Or. | 1915
delivered the opinion of the court.
“There would be something in the neighborhood of an acre waste, and that the balance of it would be irrigated.”
The attorney who advised with’Mrs. Payne and as a notary public took the acknowledgment of the mortgage confirms the version given by defendant because it appears from his testimony that:
“During some of those conversations Mr. Wade — I don’t remember the details, just exactly how he stated it, but he said something to the effect that there was to be 55 acres of her land irrigated at that time. We had, of course, discussed the acreage and the situation with reference to the railroad, and something was said with reference to the northwest corner, a part of an acre, or something of that kind, that would not be irrigated, and it was estimated that 55 acres would cover approximately the amount of land which would be irrigated. ’ ’
Although Wade testified that he did not represent that the system which it was proposed to construct
She wished to inspect the second agreement with the contractor, and a copy was sent to her. After examining the writing and discovering that the system wonld accommodate a smaller area of her land than at first planned, she determined not to sign the notes and mortgage. Interviews with representatives of the Irrigation Company ended by the defendant saying that she wonld not execute the new instruments, and the plaintiff was made aware of her intention before construction work commenced. Under these circumstances the defendant had a right to assume that the Irrigation Company had abandoned the agreement with her, because she did not again hear from the plaintiff until the expiration of two years, although in the meantime the irrigation system had been constructed, was being operated, and an assessment against the stock had been levied in October, 1913.
The Irrigation Company had ample notice, before commencing actual construction, that the defendant refused to be bound by the second agreement made with the contractor, and it was not warranted in proceeding with the second contract in despite of the objection made by defendant, so as to make her liable for something she not only did not agree to, but which she expressly repudiated in advance. The plaintiff refused to proceed with the first agreement, while the defendant declined to enter into a new one. The contract actually made was terminated by abandonment, and no new agreement was adopted as a substitute: Davis v. Bronson, 2 N. D. 300 (50 N. W. 836, 33 Am. St. Rep. 783, 16 L. R. A. 655). The notes and mortgage signed by the defendant and mentioned in the complaint are canceled.
The decree of the trial court is reversed.
Reversed.