*1 105 rehearing Argued May 21, petition for 6, affirmed October 17, 1964 denied November v. STERNES TUCKER et al 2d 881 395P. *2 argued Jr., B. Himmelsbach, Baker,
Jesse cause appellant. a for and submitted brief argued Silven, Baker, tbe cause for re- David G. Young, were spondents. tbe brief Silven & Banta, On Baker. Chief and Justice,
Before McAllister, Rossman, Goodwin and Jus O’Connell, Sloan, Denecke, Perry, tices.
DENECKE, J. real Buyer estate broker Tucker sued Sternes money previously O’Bryant $5,000 for seller jury plaintiff; found for the paid The how- Tucker. granted judgment n.o.v. for court defend- ever, ants. obligation principal is whether issue subject condition which had to an oral not been
was alleges complaint money that the earnest fulfilled. “subject to, conditioned thereon, upon plaintiff’s loaning plaintiff father however, payment money the down $20,000 be made in deposit.” to said addition nego- spring commenced 1958-the
In purchase In June of a farm. for the tiations he needed outside Tucker that Sternes told defendant buy financing farm sale and that would upon getting contingent 'the to be from have July his father. told Tucker About Sternes tenth, key-man particular “his father was the deal furnishing because he would be one financing.” July following made the
On Sternes written twelfth, offer: purchase purchase “I said will ranch for total payable
price of down $65,000.00 $25,000.00 payable year the balance at $5,000.00a with interest represented by at and first deed of trust The balance to be a note 5%. property. It is I understood will receive a marketable title property passed by to said and that title will be warranty deed. *3 upon prior made offer is “This closing this transaction I am to the able to find leasing property person in interested said a property period a lease said for who does of from years at an annual cash rental of 3-5 $6,000.00 or payable payment in advance, more the first under closing made lease to be concurrent with said of this transaction so 'that $5,000.00 said rental applied payment the down prop- can be on said erty. ordinary pro- Said lease is contain in visions included leases in the immediate area provide pay shall that lessor is to taxes. accepted “At such time as this offer is I will your forward the sum $5,000.00 to be held in pending closing trust account of this trans- closing action. Prior to the of the transaction an additional $15,000.00will be forwarded which sum with the cash rent on said lease will be handled as payment property. the down on said Should it be 108 on impossible who will lease find a lessee deposit my returned will be terms $5,000.00
above my permitted upon at or I will be me demand to option on the balance $20,000.00 the full to raise payment This offer other sources. down from September 1958 but should 1, be in effect until I have an that date will a found lessee be days the balance.” additional 30 to raise thereupon accepted Sternes offer Tucker July a dated received, check, and Tucker sent, eighteenth, for $5,000. September an
By Tucker sent 2, 1958, dated letter signature. money receipt in-He for Sternes’ deposit a rental on he had a $500 formed Sternes $5,000-a-year lease.
By September Sternes returned 4,1958, dated letter signature. money receipt He had with his the earnest receipt following: the terms of the added to “Agreement having signed is conditional broker years at an annual rental of ef- $5,000.00 lease purchase.” In fective on date of his letter of trans- mittal he stated:
“* # * appreciate posi- I You am not in purchase property tion to without such a lease in existence. you your “At such time as an have hands leasing executed and effective lease for the of said property years per for five at a rental of $5,000.00
year, you upon my purchase property, effective of said my acceptance are authorized to deliver offer to sell and to close the transaction.” Concerning the letter of transmittal and the condi- money receipt, added to the earnest Sternes' tion testi- *4 fied: prepared my attorney I had letter “Well, knowing Marysville, getting money I my and there was no reason father,
from n money signed sign receipt, I so the earnest along receipt 'this back and mailed with it, letter, papers and I all the to Mr. earnest sent with Tucker, money receipt September back. That was money receipt my lawyer áth. I took earnest typed and he in the conditions the lease in the * * money receipt earnest why put up money When asked he would not earnest earlier, Sternes testified: * * * go “A my I wanted to home and talk to going father and make sure he was to loan me the
money. your “Q And that putting was money reason for not down the earnest at that ? time “A That was one reason. The other I reason, oyer to think it a little bit more. Talk it wanted^ over with Jim on the road home to see what he thought place. give To us a little more time to talk it over. Discuss it. your And “Q I father, take then, later it, did agree financing? to do this “A he did. Yes, you “Q And negotiations after that made the up money agreement wound in the earnest
that’s on record here now?
“A That’s correct. “Q And money at time that that earnest signed by you, your father then was agreeable financing payment? the down
“A That’s correct.”
Plaintiff further testified: you sent the receipt
“Q When September Tucker on back to Mr. you you or about then 4th, binding agreement intended that be a buy people you the other to sell, did not? Yes, “A at time. *5 110 proceed people expected, the then, “Q You agree- necessary that to close was
with whatever ment?
“A Yes.” the if it that jury that found instructed was upon the money agreement conditioned was loaning plaintiff $20,000, plaintiff’s father a verdict. entitled to was parol the evidence contend
The defendants of prohibits of evidence consideration rule except parties’ agreement con- those the terms of money agreement itself. in the earnest tained by proposition attempts assert- to rebut this agree- always ing that written he shown it can subject an oral condition. ment was Oregon’s parol in OB.S evidence rule is codified 41.740. ‹ parol repeatedly that the however, held,
We have prevent not the consideration of evidence rule does obliga orally agreed parties evidence that 'the subject by writing a condition. tion assumed Degraw (1950), 222 189 P2d 649 Grindrod, v. Or 684, appears rule cited therein. This to he the cases jurisdictions. (1960), in most 3 Corbin, 530, Contracts §589. ‹ agreement “When -the terms an have been reduced to writing by parties, containing it is considered as all be those
terms, representatives be, parties and therefore there can between the and their interest, or successors in no evidence of the termá agreement, writing, except of the other than the contents imperfection writing put where mistake or of the in issue pleadings validity agreement or where the is the fact dispute. However this section does not exclude other evidence of made, circumstances under which or to relates, it 42.220, which explain as defined in ORS or to am an biguity, extrinsic, illegality intrinsic or or to establish or fraud. ‘agreement’ The term includes deeds and as wills well as contracts parties.” between
111 parol exception evidence to the The above-stated subject limitation is That to limitation. is also rule writing not stated in the of a evidence if is determined considered it will be parties writing to contain their entire intended the parties integration agreement, i.e., “made an agreement.” Dorsey Tisby, 192 Or 179, v. 234 168, (1951). P2d limitation has an 557, This obvious common-sense intend that all basis; *6 agreement expressed terms of their be as in the writ- any ing, contrary other term would be to the intention parties. of the (192
Dorsey
Tisby, supra
at
v.
Or
integration agreement. they of the If he finds that may application did not, the rule has no and be cast 'they integration, aside. But an made all of their previous negotiations, whether written or oral, disregarded must be as evidence of the contract. integration thereupon is deemed the sole evi- agreement, except, dence of their of course, may matter which it have set forth in recital form, example, receipt given as, for of a sum as con- parol protects sideration. The evidence rule integration, nothing protects but else. It it dis- regarding preliminary negotiations as evidence agreement by looking solely of the to the inte- gration.” § Contracts, Corbin, 368, states: 573, may accepted prece “All the cases indeed be as proposition parties dents for that if the have the terms their stated contract in the form of a complete integration, written it cannot be varied by proof negotiations or contradicted of antecedent lis agreements. of the This a mere statement is * # obvious. Dorsey Tisby, supra, that the held
This court v. writing integration agreement complete was a of the no other terms or conditions could be and, therefore, considered. contemplates money receipt a subse-
An earnest provisions conveyance quent land sale contract with or money receipt. in the earnest contained or terms not integration not an of the entire sense it is In that type agreement. is not the of instrument it However, writing contemplates subsequent upon the subject parties’ obligations buy of when and if the become effective. sell testimony particularly the evidence,
theAll money receipt that the earnest himself, agreement complete on contained subject to be fulfilled in order the conditions testimony agreement be effective. Plaintiff’s did not contain a effect that is to the subject obtaining financing to his that it was father 'because when the from his executed *7 promised agreement financing father had his him the sign plaintiff agreement would not and the until his father would he was sure finance him. At the time only receipt signed plaintiff was condition that binding five-year wanted in the instrument was that a year per lease, $5,000 be obtained. Plaintiff was concerning five-year asked whether this condition only lease was the condition at that time and the plaintiff answered as follows: only
“A The condition? This was one of the conditions that was down here, but Mr. Tucker also getting I financing. knew was outside you already your from had ascertained “Q But you financing get time? father that could 'the at this I “A Yes, could. complied had been with, that condition
“Q >So not? it had then, why my I That’s took to “A that time. At my Marysville,
lawyer he father knew was in money going and he no reason loan me the saw to signing.” for not intended indication is no There obligation upon fulfilling his father’s his to condition attorney promise finance. The knew his attorney financing too, accord- circumstances. agreement ing plaintiff, need to condition saw no fulfilling promise his the father’s finance. money receipt All the evidence complete intended contain the agreement and, the trial therefore, court was correct granting judgment for the defendants. principal appeal
This was issue in the assignments remaining require error little dis Plaintiff cussion. contends the trial court erred in granting defendants’ motion to strike the affirmative allegations reply. in his Defendants, in their answer, plaintiff’s allegation denied the earnest agreement upon plaintiff’s was conditioned father fur nishing financing affirmatively alleged performed everything they defendants had were to perform; then perform. however, refused to affirmatively alleged Plaintiff reply, in Ms in effect, agreement binding was not because of Tucker’s fiduciary plaintiff. breach of his duties to These alle gations correctly the trial court struck. complaint theory onwas that there was á. subject
valid written which was to an oral *8 114 reply at- The fulfilled. not been which had right
tempted place to the return proper in This is not on a different basis. City reply. Tracy Astoria, 193 Or and Baker v. (1951). 237 P2d 960 131, 954, 118, assigns the trial court’s as error also Plaintiff had after all the evidence made his motion, denial allege complaint to amend his received, been the seller consummated because agreement had been no accepted plaintiff’s offer. O’Bryant This never had previously al than that for relief basis a different is leged ruled in accordance with trial court and the 16.390. OBS jury failure submit to the trial court’s
The O’Bryant convey could marketable whether issues of a sufficient lease was obtained title and whether is is that also asserted to be error. evidence transaction was not closed because Sternes’ father changed gave mind. Plaintiff never his notice of agreement required. claimed in defects as the title, any possible If he the evidence is had, defects specified could have been corrected within the time in agreement. Plaintiff’s contention that the lease was insufficient is without merit.
Affirmed. dissenting. J.,
BOSSMAN, judgment majority enter for the defendants purported judge issue which neither the trial recognized By parties adopting as in the case. nor the which evidence view did not take jury majority which not submitted to judgment entry of sustain the the defendants’ favor notwithstanding the return of a plain- verdict in the In deprived tiff’s favor. manner the *9 by jury purported of trial of a the ma- issue which jority deem the crux of case. plaintiff deposited alleges the complaint
The majority, with the the mentioned $5,000, of sum the upon “subject and conditioned to, Tucker defendant loaning plaintiff the for the plaintiff’s father made in addition to to be payment $20,000 of down but what the no doubt oral can be deposit.” There said payment. down attached the precedent was plain- Tucker saw defendant that the time first The plaintiff young awas man, noticed tiff he price realizing purchase of this ranch and inquired plaintiff large of whether a sum, called for arranged needed financial assistance. for At had he fully plaintiff point told Tucker that he financing look to his father for and that forced to all agreements pertaining of his commitments to the purchase of the ranch would have to be conditioned upon willingness his father’s to lend him the needed money. reluctantly as a Tucker, witness, but never- fully theless conceded that the conversation occurred and that he one who started it. It is clear testimony from his that he did not wish to devote time very plaintiff, young to the man, unless needed fi- plaintiff. nances were why available to That inquiries plaintiff he made his of the the first time plaintiff came to his office. It is also clear precedent that the oral condition was attached to the contemplated temporary expedi- transaction, as provision ent but a as protect which plain- would tiff until his father could view the ranch.
The plaintiff manner in which the and Tucker coming viewed father from California highly significant. the ranch is If the consummation dependent transaction was not (1) the (2) his ranch and reaction to the favorable father’s willingness the visit $20,000, to lend only. The a social event father would have been elderly trip ardu- him was ill. father was The vitally coming as ranch was viewed ous. His to the important. inspected ranch and had had father
After the '(b) it and his (a) with dissatisfaction his announced purchase, unwillingness son its finance his contemplated purchase came to an end. at once immediately gave news Tucker the unwelcome $5,000. return of the sum demanded the pre- foregoing clearly that the oral condition indicates *10 in effect. cedent was still judge trial did not the to infer that fair seems
It precedent was of short condition the oral believe only a month discarded or that it was and duration plaintiff’s father came to the ranch the two before judge denied the defend- The trial from California. involuntary judgment of nonsuit motions for ants’ He sustained the defend- a directed verdict. and for entry judgment notwithstanding of for the ants’ motion plaintiff had waived the verdict under a belief precedent. the oral condition very jury it clear render to instructions them to was this: was submitted issue the sole by parties precedent formed an oral plaintiff pur- any agreement to render did it willingness contingent upon fi- his father’s chase concerning issue the substantive nance him. No other jury. rights parties submitted to the was pertinent reads: instruction worry you in have to about issue “Here’s * * * you, to read it to and I I want this case. carefully, most because we are you listen
want you determining now in it is have to involved what looking be for. deposited alleged that he plaintiff has “The endants as earnest the def with said sum of $5000.00 O’Bryant money purchase farm, of said on the plain- subject however, conditioned, to and plaintiff lending loaning or tiff’s father payment to be made $20,000 for the down deposit; plain- that thereafter, addition to said money; plaintiff said tiff’s father refused loan that as a result of the refusal to loan father’s plaintiff money, plaintiff and is said was entitled to the return of said $5000.00 jury, you gentlemen if ladies “Now, agreement orally an entered find that there into between these parties providing con- that this money agreement go tract —the —would binding parties on unless the into effect or be plaintiff $20,000 was able to raise -the from his you and if further find that he was not able father, to get plaintiff from his father then the the $20,000 return entitled to the from the de- $5000.00 your finding fendants. In other is that words, whereby an oral existed this earnest money receipt binding not to ‘11’—was be —Exhibit any plaintiff under circumstances unless get payment, able to the extra $20,000 as a down money. then of course is entitled to his you any ifBut find there wasn’t such oral agreement, and the burden lies on the prove you agree- that —if find there wasn’t oral ‘agreement’ ment among at all, means parties^-between regarding the financ- *11 — ing by the then father, he course isn’t entitled get money his back. This holds 'Court as a matter agreement (cid:127)of law that if the earnest —the receipt entered if into, it in fact was entered —was then into, under no plain- would circumstances the tiff be entitled to the return of his $5000.00, and right the forfeiting were defendants in the of the money. simple. that “Now, it Was there in fact an providing agreement tbe between oral money receipt— agreement earnest —tbe plaintiff go able the was wouldn’t into effect unless get If from his father? the additional $20,000 you you find find that exists—if at even and that continued to exist that it it exists, money receipt was the time signed, earnest when this * *” * plaintiff then to $5,000. is entitled quoted, paragraph the instructions last the When precedent, “If referring said: oral condition to the in to exist and that it continued you it exists, find that money receipt was when this at time even plaintiff undoubtedly if the signed,” meant it agreed they oral first met, when Tucker, day precedent extend down to the should father reached decision when the financing purchase of the was ranch, It will be noticed that in- entitled to verdict. changing nothing agreement, about structions said waiving any modifying part quoted of it. I have or it, which the entire instructions stated the substantive governing rights parties. law Further, judge rejected requested by trial an instruction defendants which read: you if find that “Further, there was such a you
condition, then should consider whether or any, plaintiff, if condition, waived you in that connection if find that the conducted himself in such a manner with ref erence to this transaction as to indicate that the condition longer had either been fulfilled or was no of im- portance plaintiff, any, to the such conduct, would in law to a amount waiver of such condition.” requested manifestly rejection instruction issue of waiver that no indicates case. The subject just mentioned treatment of indicates that
119 parties an if formed meant the instructions precedent oral which extended down to the condition day plaintiff ranch, the father visited the when was entitled to but that such condition recover, precedent was not defendants were entitled formed, prevail. to concerning jury no issue modification, tried
The precedent. oral condition or termination waiver, clearly oral indicates condition The evidence during meeting precedent was formed first majority plaintiff In short, Tucker. decide upon purported pleadings issue that the this case do jury. not and which was form never submitted to the plead. opportunity not Waiver was When an plead plead: waiver is must be available, it Miller v. Construction Co. Watts Co., Construction 223 Or Ry P2d Mt. 215; 355 Williams v. 504, Hood and Power Co., Or P 110 111 P 251, 490, Anno Cas. 17; 1913A page 56 Am 177; Jur, Waiver, § 18, 118; and Clark on Pleading, Code 2d In ed. 284. this case the defend ample opportunity plead ants had they waiver if any thought had plaintiff had waived the oral precedent. plaintiff condition never has had upon trial whatever the matter of waiver. The answer plead does kind waiver, no issue of that jury. submitted to
Possibly majority do not make their decision appear turn but waiver, to believe after plaintiff alleged and Tucker had created the oral con- they precedent dition papers abandoned it when some signed. were No one testified to that effect, and as we have seen, plain- intended that all of the purchase tiff’s upon commitments should be conditioned willingness his father’s pay- advance the first ISO per- signed paper which
ment. precedent harmony condition the oral fectly wtih agreed upon. An oral Tucker which the contradict precedent kind does not *13 merely indicates writing attached. It it is to which it does writing effective or became never integration. represent an entire not entry judgment notwithstand- motion for A evi- ing sustained substantial be the verdict cannot Oregon supports See Constitution, the verdict. dence § (amended) 3. No one asserts Article VII by support evidence. substantial verdict lacks foregoing majority from the It is seen plead upon an issue that was this case decide taking evidence that even the a view of the adopted. had not judgment challenged be should vacated entered for the based
one should be verdict.
I dissent. join and Justice
Chief Justice McAllister Sloan in this dissent.