Noyes v. Stauff

5 Or. 455 | Or. | 1875

By the Court,

Prim, J.:

This is an action to recover damages for a breach of warranty in a deed against incumbrances upon certain lots sold to plaintiff by defendant.

The principal issue of fact raised by the pleadings is, as to the existence of a valid and unexpired lease for a term of two years, upon the lots in question. The first assignment of error contained in the notice of appeal is, “that the court erred in overruling plaintiff’s demurrer.” This assignment was not relied upon in the argument by counsel for plaintiff. If, however, there w'as error in overruling the demurrer of plaintiff, it was waived by replying and going to trial.

The principal objections to the ruling of the court, which appear to be relied upon by plaintiff, are as follows:

“2. The court erred in rejecting evidence offered by plaintiff.”

“3. The court erred in sustaining the objection by defendant to the admission as evidence of the writing, purporting to be a lease, contained in the bill of exceptions.”

The rejection of the paper purporting to be a lease was, we think, correct upon two grounds: First. Such paper does not contain any description whatever of the premises alleged to have been leased, by which it could be ascertained that any reference was had to the lots in question—it does not even appear that such lots are in the State of Oregon; and this paper is, therefore, void for uncertainty, and was properly rejected. (7 Ind., 717.) Second. Said document is not a lease, but a mere agreement on the part of Ferry and Bailey to lease some house “to be in construction.” It contains no promise or agreement on the part of defendant to let them have the premises.

Tbe parol evidence, offered by plaintiff to explain the paper and to identify the property intended to be embraced by said document, was all property rejected, as it does not appear to contain a latent ambiguity; tbe ambiguity is patent, and parol evidence is not admissible to explain it. (1 Greenl. on Ev., § 301; 4 Mass. 205; 7 Cranch, 167.)

But it is further claimed that a parol lease for one year would be valid under the statute of frauds, and tbat parol evidence ought to have been admitted to prove such a lease. This we think would have been improper under tbe state of the pleadings. The incumbrance alleged in the complaint was a written lease for the term of two years. If plaintiff had desired to prove a different incumbrance tban the one complained of, he should have obtained leave to amend Ms complaint.

Any evidence tending to show the rental value of the premises was proper for the purpose of showing the damages; but, as plaintiff failed to prove any incumbrance, tbe evidence was immaterial, and its rejection could work no injury to tbe plaintiff.

No substantial error appearing in the case, the judgment is affirmed.