Pulse v. Hamer

8 Or. 251 | Or. | 1880

By the Court,

Boise, J.:

To prove the contract as set up by the plaintiff in his complaint, the plaintiff offers himself as a witness and testifies as follows:

Question 2. “State the terms of the contract between you and the defendant, Mr. Hamer, in regard to the lease of his ranch mentioned and described in your complaint."

Answer. “ In the spring of 1877, or rather in the summer, I had been informed that Mr. Hamer had a place to lease, and I went to see him some time the first of July—do not recollect the day and date. Mr. Rust informed me that Mr. Hamer had this place to lease, and stock, and I went to see him and told him what Mr. Rust told me, and he asked me w'hat it was. I told him I understood he had his place and stock there to lease. He said he did. I asked him on what terms he would lease it, or a something to that amount. He said that he would furnish twenty or twenty-five cows and calves—cows that would come in; he would furnish me eight three-year-old heifers that fall that would have calves, aud furnish feed to feed them on in case they should need it; that he thought they would give milk enough to keep the calves that winter, and he would in the spring following furnish me with gentle cows, or brake cows enough to make out twenty or twenty-five head; that if he didn’t have cows enough to make out the twenty-five head he thought the probabilities were in the spring he would have enough of two-year-old heifers to make out the twenty-five head, and I was to give him half of the increase of the cows—the calves; also I was to give him half of the grass that grew on the meadow; that the place, with the exception of the meadow, I was to have all I made upon it, and I told him I thought I would take the contract—and went back home— and told him that if my wife was willing to go in there I would drop him a little note to let him know, which I did. I got no answer till up in August some time, as well as I recollect—till him and Mr. Conner came into the field where I was harvesting. Mr. Hamer said that he had got my note —didn’t deem it necessary to answer it, as he was coming up himself. We talked the matter over, with other things, aud I asked Mr. Hamer there at that time to tell me how many cows and calves he would furnish me to keep on the shares in case I -went down there. I told him the cattle was all that induced me to go down there, and he said he didn’t know just exactly how many he could or would have, but he would furnish eight three-year-old heifers, that was spoken of before, and in the spring he would furnish me gentle cattle, or broke cattle, enough to make me out twenty or twenty-five head, he thought, anyhow, and if there was not enough to make out the contract heretofore spoken of, he would have some nice young two-year-old heifers that would come in in the spring that could or would make out the number that he had agreed to. Mr. Hamer then turned to me and said, we will have it down in writings. I told him that that was the proper and right way to do business, as well as I recollect. He then asked me when I could move on the place. I told him probably I could move on to it by the first of October, and on the tenth of October of that year I moved on the said ranch that’s named in the complaint. When I went there Mr. Hamer was not about, and no one on the place. I moved into the house, and in a day or two, or a few days, Mr. Hamer came. It appeared like everything was satisfactory. He went away, and in about one or two weeks after that, be came back to gather up bis stock, with bis son, or two sons, rather son and son-in-law, Mr. Dixon.”

George Pulse, tbe son of the plaintiff, testifies:

“ Question 2. Please state what, if anything, was said by Mr. Hamer about reducing tbe contract to writing. Give as near as you can tbe words used by both parties.

“Answer. He was to have it down in writings. He said then be didn’t have time to draw them there.

“Question 3. Which one of tbe parties was it that you mean by be, Mr. Hamer or Mr. Pulse?

“Answer. Mr. Hamer.”

This is tbe proof of tbe contract and tbe agreement to put it in writing offered by Mr. Pulse. The time of making tbe contract was in August, 1877. There is no proof of any other contract or conversation between tbe parties on this subject until after Mr. Pulse went on tbe farm of Mr. Hamer, on October 10, 1877, So tbe contract stood in parol with no act or word of either party in relation to putting it in writing until after Mr. Pulse went on tbe place. There is no evidence tending to show that Mr. Hamer requested Mr. Pulse to go on tbe farm under tbe parol contract made in August. Tbe parol contract was void, and unless it was partly performed by one of tbe parties at tbe request of tbe other, it could never create any obligation. If before Mr. Pulse went on tbe farm be bad requested Mr. Hamer to put this contract in writing and thereby make it legal and binding, and Mr. Hamer bad refused to put it in writing, Mr. Pulse would have bad no remedy, for tbe contract was simply void, and could be disregarded by either party. If Mr. Pulse, before be went on tbe farm, bad requested Mr. Hamer to reduce tbe contract to writing, and Mr. Hamer bad said to him, I am too busy now to do it, but you move on tbe farm and go on Avith your part of tbe contract, and I will have it put in writing, and Mr. Pulse, in consideration of tbis promise, bad gone on tbe place and made improvements and prepared to perform bis part of tbe contract, it would present a different case. So, also, if after Mr. Pulse bad gone on tbe place, Mr. Hamer bad promised to put tbe contract in writing, and Mr. Pulse bad in consideration thereof gone on and complied on bis part witb tbe contract. But in tbis case it does not appear from tbe testimony that Hamer requested Pulse to do any act under tbis contract, or even induced Pulse to incur any expense or loss in consideration that be would reduce this contract to writing.

We think that where one man agrees by parol to lease land to another for a term of years, to begin in tbe future, and agrees at tbe same time to put such parol contract in writing, and no consideration passes between tbe parties, either party may disregard the parol contract, and if the lessee go on tbe land at tbe commencement of tbe term named in tbe parol agreement without tbe request of tbe lessor, bis possession thus obtained will not give him any rights under such parol contract.

Tbis point being held for tbe respondent, all tbe other questions discussed by tbe counsel become immaterial, for there could be no specific performance of tbe contract.

The decree of tbe circuit court will be affirmed, witb costs.