Loeb v. Merges

220 P. 572 | Or. | 1923

PER CURIAM.

Without discussing at length the testimony, which can be of interest only to the parties and their attorneys and of no value in the Reports, we have come to the conclusion that there was no such abandonment of the contract between Merges and Loeb as ought to exclude Loeb from participation in the profits realized.

There is some slight evidence as to the market value of the property. It is very evident that Mr. Meier, head of one of the largest business concerns in Oregon and a financier of undoubted ability, was exceedingly anxious to dispose of the property for $10,000. It. is also very evident that after several months of earnest endeavor neither Mr. Loeb nor Mr. Merges had succeeded in finding a purchaser whom they were able to bring to the point of a bona fide contract, excepting Moore, who agreed to take the property at $13,000 but was unable to comply with it and forfeited the $500 which he had advanced, which sum was paid to Mr. Meier to procure the first extension of time on the option and which fact accounts for this extension reciting a consideration of $9,500 instead of $10,000.

The sole evidence of the value of this property is the fact that Meier was willing to take $10,000 for it and actually deeded it to Merges for that sum, and the fact that Ferris was willing to pay $3,000 for a third and assume $2,000 of the mortgage, and that Rogers was willing to pay $2,000 for a third and assume $2,000 of the mortgage. The situation as to the profits is this: Merges has one-third of the property, with a primary liability for $6,000 yet to be paid, and the other two have each a third of the property, subject to an agreement with Merges to pay $4,000 of the indebtedness due from Merges to Meier. Any estimate of the value of the property from this scant data must be, to a large extent, speculative, especially when we take into consideration that, to protect himself, Merges must pay the taxes, or at least his proportion of the taxes, upon the property; that he has already paid $500, which is $250 more than his share if Loeb had shown a disposition to deal equitably and share in the responsibilities as well as the profits of the transaction.

We think the estimate of the court below, of a profit of $4,000 on the transaction, is excessive, there being no cash profit made or realized by Merges so far on the transaction. Whether he makes any profit on his third, or any profit on the sale at all, must depend on contingencies, which at present cannot be fairly predicted. In our judgment Merges was wrong in not more fully explaining matters to his associate, when, if he had done so, it was at least possible that he would have advanced his share of the $500 which was paid to Mr. Meier at almost the last moment in which to bind the bargain. The evidence indicates that Loeb found the bargain in the first place and that it was probably largely owing to his personal influence with Mr. Meier that the contract was procured, and because he hesitated to advance money upon a mere partial statement by Merges of the nature of his contract and his associates in the deal he should not now be declared to have abandoned the contract entirely; but he should have such equitable relief as, under the circumstances, will do justice to Merges and at the same time reimburse him for his labors in procuring the option. At one time Mr. Merges was of the opinion that $1,200, payable $200 down and the balance in ten months at $100 a month, would have been a fair compensation, and in our judgment the offer was exceedingly liberal and ought to have been accepted.

We will, therefore, modify the decree of the court below so as to require Merges, the defendant, to account to the plaintiff for the sum of $1,200 as profits, and to pay the same, and that neither party shall recover costs in this court or in the court below.

Modified. Rehearing Denied.