130 P. 735 | Or. | 1913
delivered the opinion of the court.
Only a question of law is involved in this suit, for the defendant by his motion admits the truth of the testimony, but says that it is not sufficient to sustain any decree against the defendant. The record discloses that about February 20, 1911, the plaintiff, a resident of
“Gentlemen: Inclosed herewith I hand you warranty deed of myself and wife to Warren Kilborn, also a certain deed from O. R. Addition and wife to me for the same property described in the deed first mentioned. I send you the deeds mentioned pursuant to instructions received by me from Bright Realty Co., Portland, Oregon, the agent who negotiated this sale. You will observe that the consideration stated in the deed made by myself and wife is ten dollars. That however is not the true consideration herein. The true consideration is $625 which sum must be paid to you before the deed is delivered and you are hereby instructed not to deliver the deed I send you herewith or either of them until the consideration amounting to $625 is paid you for my use. When you receive that sum then deliver the deeds I send you. The Bright Realty Co. of Portland, Oregon, who negotiated this sale, is to receive a commission of five per cent out of the consideration of $625. You may pay such commission out of the consideration and send the balance of $625 to the First Trust and Savings Bank of Klamath Falls, Oregon, to be placed by such bank to my credit. Kindly attend to this matter according to instructions given you as soon as possible, and oblige
“Yours truly,
“W. L. Sharp.”
Prior to February 27, o1911, the defendant had deposited in the Mt. Scott Bank money in excess of $625, which had not been repaid to him. Having received notice of the arrival of the deed, he went on that date to the bank and gave to the officer in charge of the institution his
check in words and figures as follows:
Lents, Oregon, Feb. 27, 1911. No.-
MOUNT SCOTT BANK
Pay to the order of Mount Scott Bank - - - - - - $593.75
Five hundred ninety three ny - -- -- -- - Dollars
Warren Kilborn.
The decree of the circuit court is reversed, and one entered here in accordance with the prayer of the complaint. Reversed: Decree Rendered.