138 P. 478 | Or. | 1914
Opinion by
Cassie Thayer, one of the plaintiffs, testified as follows :
“Q. Hid you have any conversation with her concerning the purchase of the farm?
“Yes, sir; just one.
“Q. Just relate that.
“A. It was on the second day she was with us; we took a ride, and we drove up the Washougal Eiver, and when we were well up the river we passed a place*142 that had a big sign up ‘For Sale,’ and she said, ‘We are thinking, Cassie, of getting yon a place,’ and I had not heard anything about it, and she said, ‘Let’s go out and look at it,’ and I didn’t want to look at it, and we drove on. And they said they wanted to get us a place, and they said they thought the one we were on was too much of a burden to us, and that she wanted to do something for Oscar and I before they went back, and she asked me if I would be satisfied with a cheaper place, and I told her how much I liked the one where we were, and how well we were doing, and I did not feel discouraged at all; and she mentioned my father, saying that he did not like it, and that he would rather we would come back nearer Portland; that it would be more pleasant for all the family, and I still insisted abont how much I like it where we were, and she said, ‘That is so expensive,’ and that they could not think of getting that place, but if we would be satisfied with a cheaper place they would help us, and that they would get a place for us, for me particularly; and we talked along in the same strain until we neared our way home, and she said, ‘If we will get you a place, you might as well move; if we can find you a place, you will move?’ and I said then, if it is going to be a real help, and my place, I suppose I would be foolish to stay on the place where I was and carry the debt when I could be free from debt. I don’t remember any other conversation at that time, because we came up to the gate at that time.”
Oscar Thayer’s testimony as to the original agreement is as follows:
“Q. Just state how you happened to move on and take possession of that property?
“A. I was living at Washougal, and my brother and his wife came up there to visit.
“Q. Who is your brother?
“A. Walton Thayer.
“Q. And his wife’s name?
“A. Emily M. Thayer. And they were there a couple of days. The first day they were there Walton got to talking to me about family affairs, and he told*143 me that he and his wife had come to the coast to settle up the estate, mother’s estate, and we talked the family affairs over. He wanted to know if I knew what money mother had let Walker have, and I told him what I knew, and he told me at that time that he owed the estate $800, and that as long as Walker and my sister had not said anything about settling the estate, and they had this money loose, and if I could find a place for that amount of money, he would buy it for me. Under those conditions he wanted me to look out for a place, and commence immediately to look out for one, and he made several trips around to different places, and I made several, and we finally decided. * * Before he went east he didn’t find anything that suited him, nor that suited me, and he told me to keep on looking. And he went east and I went up into a real estate agent’s that I was in consultation with, and he told me about this Ridgeway place, and that he spoke to me about it, and he intended to go and look at it himself, but he was called east suddenly and he did not have an opportunity to look at it, but he told me to go up and look at it, and I went up and looked at it and made several trips up there. I thought that was the best I could do for the amount of money. He told me the amount of money he was to put into the place, and he said $1,100 or $1,200, and he said if I could find a place for that, he would buy it for us.”
Emily M. Thayer testified, in substance, that she is the owner of the premises in controversy, and has owned them 13 years; that she visited Oscar and Cassie Thayer at Washougal and found .them desperate because they could not meet their obligations, representing to defendants that if plaintiffs had the time and opportunity given them, without pressure, they might in time make good; that they believed an investment in Oregon would be good; that defendants were glad to make a safe investment, and at the same time help them; that they remained at Washougal two days, during which time defendant Emily M. Thayer went riding with Cassie, but that no conversation was had
Walton Thayer testified, in substance, as follows: That he is the husband of appellant, Emily M. Thayer, and drew $15,000 in a lottery in 1887, the money being drawn in the name of Oscar Thayer; that he gave his mother $3,000 and Oscar $1,000, but did not agree to pay Oscar a year’s interest on $12,000 at 6 per cent, or any sum in addition; that he was a member of the
Mary A. Thayer, a relative by marriage of Oscar and Walton Thayer, testifies:
That she has known the parties for 23 years, and talked with Cassie about the purchase of property about the time Cassie left Washougal; that she told Cassie she was glad to know she was buying a place for herself, and that Cassie replied, “Molly, it is not mine; it is Emily’s.”
Plaintiffs introduced a letter written by Walton Thayer, dated at Portland, June 6, 1898, the material portions of which are as follows:
*146 “Toots and Sis sent you up a box Thursday which I presume you need all O. K. I inclosed a note giving data concerning two farms in your locality. I also inclose in this another memo, of a farm within 10 miles of your place. You will have to manage to look at any places we may hear of in your vicinity while I will do the outside skirmishing, and if we hit on a suitable place we can both go, would also want Cassie to see it before any change is made. I examined a farm about 7 miles back of Vancouver yesterday; it was an all-day job and I walked over almost every foot of a 50-acre farm. The place is not bad for the price ($1,200), but I am sure we can find something better for the same money. Had a good house and barn on it. Monday I am going to ride my wheel out to Gresham (12 miles out) to look at a 40-acre piece which I understand is fine. Dunn seems to think that Gaston place will fill the bill exactly, and we can get it for $1,100 or $1,200. I will try to get out there Tuesday or Wednesday and will let you know what I think of the Gaston and Gresham places. You can let me know what you think of the places you investigate and I should think within a month we might find something which would be an improvement on what you have as far as being comfortable as well as making a little money is concerned. ’ ’
Plaintiffs also introduced in evidence a' letter from Walton Thayer to Oscar Thayer, dated Chicago, August 3d, concerning the proposed purchase of a place for which Oscar was negotiating, in which occurs the following language:
“You did not say anything about the place. Please let me know what kind of a place it is and if Cassie is satisfied with it have her send Toots [referring to Emily M. Thayer] a line regarding it. Now Oscar we don’t want any afterclaps about this thing if it goes through, and I trust you will appreciate this lift and do your best from this on. We don.’t want any farms in Oregon, and if it was not for giving you some assistance would not think of putting one cent into any farming land in Oregon or any other place. Sixteen*147 hundred dollars is more than we expected to put into any place and it is just at present going to inconvenience us to put up that much ready cash.' I trust you will consider all these things. You can say to Durham we will furnish $1,600 and if he is not satisfied with your statement or telegram he can wire our bank here, and I guess they will notify him we are all right. ’ ’
Another letter on the same subject, dated August 10, 1898, was introduced, being in part as follows:
“It would push us to put up $1,600 cash just at present, but as I wired you we would have made the struggle. We are willing to help you to getting a place. Everything is quiet here for Chicago.”
The material parts of another such letter are as follows :
“Your letter was received several days ago. I also received a letter from Dunn some time ago, and he stated he had a place which just suited you and which you wanted, bnt he did not say it was the Gaston place. I am sure he is working you on the Gaston place, he certainly is when he says he wants $1,150 for it. He told me the place could be had for $1,000. The back taxes, interest and mtg. in all amounting to about $900; he also said the old man Eidgeway (I think that was his name) did not expect to make anything out of it. This being the case $1,000 would clean it all up. Now if you think you can take that place and make a go of it without further keep, we will furnish you the $1,000. We are not as flush with money as we were some weeks ago, having paid out $310 life insurance, $188 taxes, besides numerous other drains on our purse.”
Plaintiffs also introduced a letter from Mrs. Emily ' M. Thayer to Miss Kate Colburn in relation to finally closing the deal for the Eidgeway place, which reads as follows:
“Dear Miss Kate: Oscar writes us that he has decided upon a farm known as the Eidgeway place near Gaston, Oregon. If Cassie too is satisfied that this is the best place for their purpose that the same amount*148 of money can purchase I am willing to buy the place for them in the hopes that they can some day own it themselves. Will you get Cassie’s opinion of the place, as I respect her judgment, and if it is favorable will you consult with Oscar and your father regarding the details of the transfer. There is a mortgage on the place, also back taxes and interest to be cleared. If an absolutely clear title can be secured and all claims against the place of every description can be cleared for the amount of indorsed check $1,100 as Oscar writes us it can, please get the transfer and have the deed made out to Emily M. Thayer of Chicago, and give Oscar immediate possession of the place where I hope he can be more comfortable and meet with success. I will be very grateful to you and your father if you will give this your attention, as we have no personal knowledge of the deal and Oscar may not have the time or opportunity to make the desired investigation as carefully as it should be. Should this move not seem desirable in your judgment, please let me hear from you, as we make this purchase entirely for the benefit of Oscar and Cassie, and am anxious to avoid a mistake.”
Also, a letter from Walton Thayer to Miss Colburn, dated October 5, 1898, was received in evidence, the portion thereof material to this suit being:
“Tour letter and papers to hand. Toots [meaning his wife] has been in the Chicago hospital for three weeks past having three operations performed. * # I hope Oscar will do well with the new place; at any rate he has a home which he can virtually call his own. ’ ’
The papers referred to in the letter were evidently the deed and other papers relating to the final transfer of the Eidgeway place to Emily M. Thayer.
In another letter of September 15, 1898, referring to the check sent to Miss Colburn to pay for the Eidgeway place, occurs this language:
“We decided to send cheek to Mr. Colburn because two or three heads are always better than one. We*149 want Cassie to be satisfied as well as yonrself and it is onr desire to have all of the Colbnrns satisfied as they are especially interested on Cassie’s account and I don’t blame them. Now, my boy I will say this: Take the place if it suits, do the best you can and show yonrself a business man on a small scale and I will promise yon that you will have all the help we can give you. It may not be much and it may not be any, as it depends altogether on how Toots’ securities turn out. We discovered while in Jamestown, N. D., that $10,000 invested in a corporation there is almost practically worthless. Let us hear from you. Send us your P. O. address as soon as you move, if you decide to do so. And above all things my boy prove to Toots that you are a business man and I will promise you that you will get along all right and we will help you all we can. If Toots wants 6 per cent interest on the money pay it when it is due and it won’t be long before you will own the farm.”
“We don’t want any farms in Oregon, and if it was not for giving you some assistance would not think of putting one cent into any farming land in Oregon, or anywhere else. •* # I trust you will consider these things. ’ ’
This is not the language of a man buying a farm to give away, but of one making a purchase for himself, and incidentally to assist his brother and family. Again, in his letter to Miss Colburn, dated October 5, 1898, appears the following language:
“I hope Oscar will do well with the new place, at any rate he has a home which he can virtually call his own. ’ ’
And, no doubt, if Oscar had been able to repay, in the dozen years he occupied the place, the advances so generously made him by his sister in law, she would promptly have conveyed the land to him. Again, Walton writes Oscar: “If Toots wants 6 per cent on the money, pay it when it is due, and it won’t be long until you own the place.” It is evident that Walton
The decree of the Circuit Court will therefore be reversed, and a decree entered here to the effect that plaintiffs have no interest or estate in the land in dispute, that defendants are the owners in fee, and entitled to the possession thereof, and that they recover their costs in this court.
Reversed: Decree Rendered.