Lytle v. Ramp

172 P. 503 | Or. | 1918

BENSON, J.

1. That such a contract as that set out in the complaint is enforceable is too well settled to require a citation of authority. The only question for our consideration therefore, is the weight and sufficiency of the evidence. Whatever agreement was had in the matter, was between the plaintiff Charles A. Lytle and Mrs. Eamp, and since it rests entirely in parol, we must look exclusively to the testimony of Mr. Lytle to discover its terms. The record discloses the fact that Mrs. Eamp was a helpless invalid, whose only means of moving around was a wheeled chair into which she must be lifted by others. The plaintiffs for some time prior to the incidents involved herein, had been living in rented apartments reasonably near to the home of Mrs. Eamp, to whose interests and welfare they were admittedly alert and faithful. However circumstances developed which seemed to make it necessary for them to seek a different residence, and Mrs. Lytle told Mrs. Eamp that they were seriously considering the purchase of a lot in South Salem and the building of a house thereon, upon the installment plan. This appeared to give the old lady great concern, since it would remove her grandson and his family so far from her residence as to render communication with them inconvenient and difficult. She therefore suggested that they build a house on the ground in controversy, and asked Mrs. Lytle to send her husband over to discuss the matter with her. Mr. Lytle then visited his grandmother and his account of the conversation is as follows:

“I said, ‘I haven’t the money to build, and haven’t the money to buy the lot.’ She said, ‘Well, someone is going to get the lot anyway, I have to have someone that is kin to me to look after and take care of me; I am thrown among strangers to look after me and attend to little errands and business I don’t like to trust in the hands of strangers.’ She said someone was going to get it. She said, ‘You may just as well have it as anyone else.’ I said I didn’t have the money she set on the price of the lot, but she said, ‘It is not for sale, but if you want to come here, I will let you have the lot; someone is going to get it, and you and Julia might as well have it. ’

“Q. Who is Julia?

“A. That is my wife; so I talked to her about the lot and house, and she said, ‘What did I think it would require, — bow much money to build on to the granary and build the house?’ I said, ‘I haven’t any idea.’ She said, ‘Ton could figure and find out how much it will be; I have some money, and I have to have someone here to look after me; you might just as well have it as someone else.’ I got figures, and had different “contractors figure what it would be, and no one got within the amount of money she seemed to be willing to let me have; she thought five hundred dollars should be enough to build on the granary, — to build on, — and five hundred dollars wouldn’t reach the required amount; so I got figures and told her what they were; I didn’t say whether I was going to take it; and she sent for me again. She said, ‘What have you made up your mind?’ I said, ‘Grandma, I don’t know what to do.’ I says, ‘We hate to get in debt for a house and build when I ain’t got only my work, — the only way I have is my hands to make this money, — that is a whole lot to get in debt.’ She says, ‘I know it is, but I think you can make it’; and she encouraged me in it. I didn’t say anything, but got their figures, and come in the means she would let me have to build the house; I got figures so it made it possible to build the house if she would let me have that amount of money. We let the contract for the house. That is practically the conversation in regard to the building of the house; every time I was there she spoke about the money, but she never said any more than that someone would get the lot, and we might just as well have it as someone else, for she had offered to people coming there that she would give them the lot to look after her.”

2. A careful reading of this testimony clearly establishes an agreement on the part of Mrs. Eamp to give plaintiffs the lot upon which the house was subsequently built, but falls very far short of anything like a contract to give them the money for the erection of the building. The $1,800 for which the note and mortgage were executed, included other obligations besides the value of the lot and the money advanced for the construction of the dwelling. It is agreed, throughout the record, that the lot was valued at $500 and as to the contract in relation thereto, Lytle’s testimony is abundantly corroborated by other witnesses, and we therefore conclude that plaintiffs are entitled to a credit of $500 upon the note in question, and a decree will be entered here to that effect, neither party to recover costs. Modified.

McBride, C. J., Burnett and Bean, JJ., concur.