740 P.2d 804 | Or. Ct. App. | 1987
Plaintiffs brought this action for the unpaid balance on a promissory note executed in their favor by defendants. Defendants Hadley, Payne, Ellis, Wayne and McGrew
, Plaintiffs agreed to sell, and defendants agreed to buy, four parcels of real property, including a small shopping center, for $285,382. The shopping center was subject to three mortgages, all held by the same bank. Defendants agreed to assume the balances due on two of those notes, which totalled $170,382, and gave plaintiffs a promissory note for $115,000. At the same time, plaintiffs orally agreed to pay off the balance of $19,211 on the third note and executed an indemnity agreement which covered all “liability, loss or damage” that defendants might suffer arising from the third note and mortgage. Plaintiffs did not pay the third note according to its terms. Defendants, after making several payments on the two notes that they had assumed, stopped making payments. The bank later foreclosed on the shopping center and bought the property at the sheriffs sale for $244,500. The proceeds from the sale satisfied in full all three notes secured by the property. Defendants made no payments on their note to plaintiffs.
A summary judgment is proper if “there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law.” ORCP 47C. As a general rule, the construction of a contract is a question of law. Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or 639, 643, 576 P2d 1244 (1978). However, if the court determines that a contract is ambiguous, evidence may be properly admitted showing what the parties intended, and their intention becomes a question of fact. Oregon Bank v. Nautilus Crane & Equip. Corp., 68 Or App 131, 146, 683 P2d 95 (1984). Here, we conclude that the contract between the parties is ambiguous. Defendants contend that plaintiffs’ oral promise to pay off the
For the reasons stated, we reverse the judgment in favor of plaintiffs both on their claim and defendants’ counterclaim and remand.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Defendant Tyler was not served with summons and did not appear at trial. Tyler and defendant McGrew are not parties to this appeal, but the judgment is final.