95 P. 817 | Or. | 1908
delivered the opinion of the court.
“Because I put up a fence and made a lane and let stock go through, and because I didn’t shut up the trail and allow nobody to go through there, he would not make the deed.”
This witness further testified that nothing was ever said about his resetting the fence, or in relation to his executing a deed to a half interest therein, that no demand was ever made upon him to make such a deed; that by oral agreement he delivered a half interest in the fence
“Under the terms we were both to keep up the fence.”
Frank Eeady, the plaintiff’s son, in speaking of the reason given by Schmith for repudiating his agreement, testified that the defendant told the plaintiff he would not convey the land specified, because the latter had permitted people to go back and forth with their stock along the trail across his premises, that if a deed should be made he feared the plaintiff would remove the boundary fence, and that the defendant did not request any writing to evidence a transfer thereof. The defendant, in speaking of the terms of the agreement, testified as follows:
“I says to Mr. Eeady, T will let you have an acre of ground if you will let me have a half interest in this fence.’ He says, ‘All right; I’ll do that.’ I says, ‘There is part of that fence I want swung back to keep your stock from getting into my field and mine from getting into yours’; and he didn’t give me any answer, and that’s the way it stood ever since.”
In referring to a conversation this witness had with the plaintiff he further said:
“He asked me if I had made a deed for this acre of ground. I says, ‘No.’ He says, ‘Why didn’t you?’ I says, ‘Mr. Eeady, I want to know first what I am going to get for my acre of ground before I make out a deed.’ He says, ‘You can have this fence.’ ‘Well,’ I says, T want it drawed up in writing in regard to this fence.’ ”
The defendant on cross-examination was asked in reference to his agreement with the plaintiff the following question:
“Now, as I understand your direct testimony, when ' you had this conversation where you staked out the ground to him, in that conversation there was nothing said about a writing of any kind from him to you? That was afterwards?”
“I don’t think he talked about any writing at all. He might have. I would not say we did. Just went to work and staked off the ground and measured it, and I think we had our minds made up about that. I don’t know exactly whether we did or not.”
A careful examination of the testimony given at the trial leaves no doubt in our minds as to the validity of the contract to convey the land particularly described, oías to the plaintiff’s part performance of the terms of the parol agreement sufficient in equity to take the case out of the statute of frauds; and the only question to be determined is whether or not a deed of the specified interest in the fence should have been tendered to the defendant as a condition precedent to the right to maintain this suit.
“Denies each and every material allegation of the new matter set up in defendant’s answer, except so far as the same agrees with the allegations of the complaint.”
In Kabat v. Moore, 48 Or. 191 (85 Pac. 506), referring to Section 77, B. & C. Comp, as amended (Laws 1903, p. 205), Mr. Chief Justice Bean criticises such form of pleading by saying: “It may be doubted whether, under this statute, a reply merely denying each and every ‘material’ allegation of the answer is a good denial, for a plaintiff ought not to assume to himself to determine what facts are material, and thus render a conviction for perjury for a false verification difficult or impossible.” The Supreme Court of this State is organized to correct errors committed by the trial courts to which exceptions have been duly reserved. In the presentation of causes questions necessarily arise, which, owing to the haste incidental to a trial, must be determined after only a moment’s consideration. If the action of a court in such respects is challenged, its conclusions can be reviewed at leisure on appeal, and a precedent may thus be established for future government; but unless the legal principle is called to the attention of the trial court by objection and exception, its action is not subject to re-examination, excepting only in cases involving its jurisdiction and that the complaint does not state facts sufficient to constitute a cause of action. Section 72, B. & C. Comp. The notice of the court appears never to have been attracted to the defect in the reply, and as such imperfection might have been waived, and does not come within the exception specified in the statute, no error was committed as alleged.
Believing that the testimony fully warrants a specific performance of the terms of the parol agreement, the