*1 223 part Argued May part June and reversed in affirmed rehearing September 10, petition denied v. HARPER JEWELL 258 P. 2d 115 2d

260 P. *2 Gallagher argued appellant. P. for J. cause On Gallagher Gallagher, brief were & of Ontario, Ore- gon, K. and Vernon Smith Idaho. Boise, Taggart,

E. and Max S. Otis Smith of Ontario, argued respondent. cause and filed a brief for Justice, Before Chief Warner, Latourette, Lusk, Tooze Justices. Perry,

PERRY, J. herself,

This is suit on behalf of individually, and as administratrix of the estate of against William Mae Jewell, deceased, Goldie individually as the and as administratrix widow, George Harper, of the estate of deceased, to establish the existence of a entered into between George Harper, Jewell, deceased, de- prior untimely their ceased, and for an ac- deaths, counting; and, further, relief nature specific performance alleged of an oral contract bequeath personal property, devise and with the exception prop- of the sum of real $10,000,and *3 erty by George Harper owned to and Jewell, William property impressed to have this a in with trust the plaintiff. hands of the defendant for benefit of the the From an adverse decision each of these issues appealed. the has complaint alleges

The in substance, that about George Harper proposed June 30, 1946, to William formation a Jewell the in his cattle county ranching in activities Malheur eastern Ore- gon upon following the basis: That William Jewell his should move to the ranch wife home of and the George Harper said and devote their time and efforts operation of the ranch and the care of the live- George Harper pay wages, stock thereon; would no supplies expenses but furnish all would household and family, for William Jewell and his assist Jewell in permit acquiring acquired and him run cattle these range, expenses the all to be cattle on with by Harper. paid had ac- when William Jewell That ages, quired of all hundred head cattle kinds and two personal property used the in connection with “together forage operation of the with the ranch, raised on said and all ranch”, emblements cattle parties partnership property and should become equally therein. thereafter would share Day, 1947, That thereafter on or Christmas George Harper proposed if would that William Jewell partnership, but con- from the would not withdraw a maintain behalf, his efforts on its would tinue during George Harper lifetime, care for home and might George Harper long as direct, so he or bequeathing devising all of make will would might except seised, of which he die partner- William Jewell. That sum of $10,000, agreed, ship but that formed was any accordance will, will, execute failed to although agreement parties, fully agreed performed and was had the contract enforced. entitled have individually Harper, Mae defendant, Goldie The law, as administra- and sole heir as the widow George Harper, deceased, denied of the estate trix allegations complaint. of all the material Goldie defendant, discloses that The evidence George Harper, hus- deceased, were Mae George Harper’s demise, time of band and wife at year they although having married in the been *4 together separated live as hus- and had ceased had part December, latter in the band and wife since residing of Nevada, the state McDermitt, near she in county, remaining in Malheur on the ranch and he (cid:127)m That Oregon. Jewell, 1934 William year then of age 16 or a defendant, nephew came to the home of his aunt, year following was by George at his ranch. He re- employed Harper mained there until he was called into the armed service in 1942. January, service, While in William Jewell married the child one was born to this After marriage. discharge, the Jewells returned from the east, where had been they residing, home the defendant, remaining there a short time later to a moving McDermitt. home For period five six months thereafter William Jewell employed service station and as a carpenter in and around he McDermitt, which time was ap- Mr. proached Harper. The plaintiff testified to the following conversation at the ranch about 1946: July 5,

“Q Who was at the ranch then?

“A George, I, Just Bill and and the baby. you Did have conversation, three

you there?

“A Yes.

“Q In which you started to discuss the proposi- tion of Bill’s coming out and at the living ranch? “A Yes, we did.

“Q “A you Can Well, just relate that now? way put it, as far as I remember, can he said ‘Well, I’m putting the table, cards on the I Bea. have to Bill spoken about this several times.’ He proposition said, ‘I want Bill out I here. need him out here. You can out here, come here and live too. I can be as much can be me.’ help “Q What if Bill reply, any, did make to that? “A Bill didn’t say anything yet. make, What if reply any? ‘Well, I know Well, says, don’t anything

22$ George.’ I know business, said, about the ‘I don’t good says, you’ll ‘Oh, I’ll be out here.’ He

what learn it.’ i Í # sfc # # (by Gallagher) P. conversa- Mr. This J. you Bill and as I was between

tion, and understand, George? ‘‘ George right. A —that’s asking you said what was “Q And I am now present. you three Give a time were all when any George proposition. Did outline me the whole proposition there Bill at time? to saying kept he Bill I know because Yes, George wages, said, work didn’t want to ‘That isn’t come out planned. to I want I had what your bring here and work with me and here, heifers; give I will cattle out up to 200 then head, work these cattle when partner.’ George you in as a So then I will take you?’ said, it sound to I me, said to ‘How does anything about but'I think it, I don’t know very good ‘Well, says, Bill, offer,’ ‘Well, and I it’s says, you agree you?’ he ‘If it, to how about right.’ ‘I to said, I don’t want think twice . ’ agrees say it, If Bill will it. O.K. say? Bill “Q “A He What us ‘It’s and the said, deal,’ three hands. shook you all on it? Did shake hands

“A Yeah.” plaintiff, Following related the conversation immediately employment left his Harper up at the work ranch. and took McDermitt an ranch was old stone house and on the house The very primitive prior living were so that conditions taking up residence at an the ranch Mrs. Jewell the house was made somewhat added and addition moving Upon plaintiff the ranch, liveable. more family Jewells lived as until the death of William Jewell and

February resulting 3, 1949, their deaths from the airplane purchased by crash of an which had been George Harper and William Jewell to be used in their business. Day,

The related that on Christmas *6 following place events and conversation took be- George herself, Harper tween William Jewell, and at ranch: you living “Q Where were at Christmas time in 1947? place.

“A Baber you place “Q Will relate what took there on Day any you Christmas as to conversations had George family happened or what day? just ordinary any family ell,W it was —what “A would have—a Christmas celebration. Of course surprise George. gotten it was kind of a a and Susan had to We had George tree and some Christmas decorations, and gone early— to bed “Mr. E. If O. SMITH: we can have the con- versation, it will be fine. (by Gallagher) you go “Q Mr. P. J. Will ahead you Day? and describe what did Christmas got George up morning “A Well, when in the quite surprised

he was to see the tree. Christmas any “Q What if he make? statements did ‘ up. “A Well, said, he wake Susie, Santa Claus grabbed has and her here,’ been he went over and guess you thought out of bed and he Santa Claus I said, ‘Well-, ’ forgot you, and he in his went brought presents room and out for all of us. you “Q Did have little tree? Christmas yes, “A and a Christmas Oh, dinner. you Later have a did Christmas dinner?

“A Yes. “ Q Now any day was conversation that or there George

evening you Bill to between and and as George’s disposition property? future “A Yes. you that to the

“Q Will relate Court? celebration Well, “A after the Christmas was gone bed, I in to first Bill and had over, knocking you thing on the know started on out; asked us to come and we door and he I said, ‘Well, it and he wanted to know what you I to talle to come on here. want want kids certainly you.’ said, know, ‘You And he my year happiest h.e life,’ has been said, we wanted to know satisfied if we were says, know I am ‘Well, then course,’ he ‘Yes, years my getting pretty on health well stay promise good. If kids too hasn’t been keep my as when I make have, on here and long my sister, Mamie, is taken care out, will go you.’ will of, the rest back forth Then was discussed yes or no he ask on it? all, thought about how we Well, he said—asked ‘Why, yes.’ said, it, and we *7 you stay you ‘If here was, statement to His my doing, you when I make have been do taking will the rest care Mamie will after will, you?’ to

“A Yes. you to and Bill? addressed that “Q Was sir. Yes, “A say accepting Bill that “Q What

proposition? pleased very about it. he was Well, “A he said? tell me what Can ‘George, expect but’ that, I didn’t said, He “A expected. he had more than was —he said it Christ- on—that was from that time “Q Now Day, on and Bill continue 1947—did mas perform your same work about the had during summer of been 1947? sir.” Yes, There were four cattle that brands were used for branding operated Harper cattle ranch and range. They “Spear were the “Bar Double A”, A”, “Bar “45”. The Double A” and “B.J.”, “45” by Harper designate brands were used to his cattle. explained His widow the “45” brand was her carrying except and that the cattle that brand, own any nephew, that had been sold her hers, were she haying past in the obtained the increase of these cattle proceeds “Spear and the from their sale. The A” registered by and “B.J.” brands were to and used William Jewell. George Harper

While there is evidence that speaking spoke to others of William Jewell of him as partner almost from the time the Jewells Harper moved ranch, the evidence as exhibited Yalley the records of the Boise Livestock Com- Company, through mission which most of the cattle passed together sales hands, into other auction George through bank accounts show that selling great many 1947 and 1948 more cattle than was William ewell, J and was receiv- ing monetary full returns for these cattle without any division whatsoever to William J ewell. However, represented in November, 1948, Walter an Shaklee, officer the Western Idaho Pro- duction Idaho, Credit Association Caldwell, while arrangements maldng money pur- to borrow for the light airplane plant, an chase that he and partners, having Jewell were an interest equipment upon *8 A” cattle the the “Double 232 By representation,

ranch. reason of this the note and mortgage upon the cattle and ranch other signed by George Harper, Jewell and the plaintiff. Mr. Shaldee testified as follows: “Q Mr. I think testified that Shaldee, signatures Bea-

had the of R. William Jewell on the note. Is fact? trice Jewell that a “A Yes. why signatures? require And their

“Q place, that’s one the Well, in the first major Anybody points watch. that’s either that we any shape or loan in form, connected especially feel, we lien, labor—because a labor mortgage he told me ahead of when comes that Bill and ‘Does Mr. —so running said, I ranch, him was an have interest these cattle?’ partners [’] here. said, ‘Yes, said, He we’re sign the note, ‘He’ll have to then.’ sure present Now condition of that what n ° today? loan paid off. “A It’s all organization has no further interest Your I take it? then, matter in the “A None whatsoever.” part January, latter 1949, sometime Also, property upon personal the ranch was for cattle by repre- and Jewell assessed time first county parties assessor of Mal- sentation previous Oregon, county, assessments of record heur personal property having the cattle listed Harper. only from the intention of arises A relationship and, while it establish meeting implied, expressed must may there be be Or ux., Lemon et (Burnett v. minds 522, 64 P 38 Or Crawford, v. 910; Willis P2d

233 904); proving P 53 LRA and the burden of the relationship upon alleg existence of such a is the one ing supra; it. Burnett v. Lemon ux., et Preston v. Com., State Ind. Accident Or 149 P2d 957; H. R. v. al., Worden Co. Beals et 66,Or 250 P 375. testimony plaintiff

The of the and the circum quite clearly indicate stances that William Jewell left employment purpose his in and about McDermitt for the forming partnership George Harper of a at a time seriously in the future. The defendant contends that partnership, was not to be however, established acquired until such time William Jewell had himself ages, 200 head of cattle of all kinds and and since the evidence shows that at the time his death he had acquired carrying more than not 180 head of cattle attaching the condition brand, to the formation of the partnership bywas him never met. This was a condi precedent any by tion that could be at time waived representations and the to the Western Idaho Production Credit Association and to the assessor are quite significant, holding for while the out to third persons parties acting partners that the are is slight but value as evidence of the intention parties partnership, yet to create a after the intention relationship to create this inter se is established, the subsequent holding action of the themselves partners persons strong out as to third is evidence partnership agreement that the has been in fact con summated. opinion

We are of the that be George Harper tween and William Jewell existed at the time of their deaths.

The evidence, to establish however, the oral con- bequeath tract of and devise his property plaintiff William Jewell is in our opinion insufficient. agreement relied

The oral provides single bequest consideration both personal property and a devise of the real estate Harper. agreement deceased, Such an not against personal so enforceable severable as to be estate as to and nonenforceable property sought property, real hence all to be recovered realty lying prohibition is treated as within *10 requiring frauds of the statute of that the contract to writing. convey in v. must Howland Iron Fireman be Mfg. P2d 213 P2d Co., 188 215 Banks 230, 380, 177; Or also ALR v. 3 Or 477. See cases cited in 71 Crow, note b. 485, prayed respect in in

The relief for is the specific performance not a and is matter of nature of by equity granted right, in the exercise is courts but prevent perpe judicial the of their sound discretion to per upon good in has a fraud one who faith tration of upon promise oral of another the formed services agreement although the unenforceable law oral Majovski statute frauds. et al. because within Tigglebeck 215 P2d 357, 674; 188 Or al., v. et Slavoff 213 P2d 156. 187 Or al., 554, v. et Russell upon performance relied must be such The acts of except they for not have been done that would perform parties, is, acts of contract of the exclusively oral contract be referable to the ance must Mfg. parties. Co., Fireman v. Iron Howland of the Dodge supra; P2d al., 13, 179 et 181 Or et al. v. Davies 936, 148 P2d 147 Allen, 174 Or Hunter v. 735; Derby 124 265 P et Or al., v. P2d Brennen 213; 302. 7 Or Lord, Brown v. 425;

235 Thus the statements attributed to night upon by that Christmas 1947 and relied realty aas contract to devise the bequeath personalty George Harper, deceased, presents responsibility upon any parties. no new of the relationship The before and after this statement was party the same. carrying Each was at that time looking same burdens and duties, forward the estab lishment of a relation, and acts were original agreement referable back to the partnership. Young, to establish this Hillman v. P

Or P 73, 87, 124, 127 793. plaintiff’s The most that position can be said of the considering as to this matter, all of the circumstances making surrounding purported agreement agreement and the itself,

pleased happy being adopted pleasant into the surroundings and season festivities of the Jewell house- appreciation and in hold, thereof, desired to confer arising them benefit out of his affection. “ * * * thing Motive is not the same with considera- Thomas, tion.” Thomas v. QB 851. And if there is no consideration other than that motivated love respect or affection sup- another, it will not *11 port promise. 12 Am § Jur, Contracts, 569, 78; § Restatement, Contracts, 80, ch. 75. opinion, gathered

We are of the from all partnership of circumstances this that a case, ownership equal partnership property in all the therein by George Harper was consummated and prior untimely to their this deaths, and that should be -for an matter remanded administration of partnership property according to law and for an accounting. opinion

We are further of there was not agreement by an enforceable to devise at his death to William bequeath to the plaintiff. Jewell or therefore, affirmed in and re- is,

This cause part for further consistent with proceedings versed in part this opinion. Rehearing eor

Petition E. and Max Taggart, Smith S. Ontario, of Otis the petition. K. Gallagher, & and Vernon

Gallagher Ontario, contra. Smith of Boise, Idaho, Justice, Chief Before Warner, Latourette, Justices. Lusk, Perry, Tooze denied. Petition

PERRY, J. this has court for re- petitioned

The defendant premise the merits hearing upon from drawn the evidence are deductions of court our finding and insufficient sustain erroneous between of the copartnership relationship the existence both now deceased. William Jewell record, court review After a careful that such a relationship satisfied then, now, November 1948. did exist between the misunderstanding may exist, that no However, so we stated “that wherein elarify opinion our we wish to in all the a ownership partner- with equal was consummated by George therein ship property used By Jewell.” language and William to determine the rights not intend this court *12 assets of the in and dissolved capital determined only fact can be which copartnership, equal were had, only they be but accounting of its sharing in the copartnership partners dissolution by to its it existed prior profits death of both partners. to her costs and dis is entitled

The plaintiff However, court. respondent’s bursements bill for the transcript cost objection appellant’s should be sustained in the sum of testimony $321.75 since the $193.05, amount of proper reduced to not taxable thereof is copy properly of a carbon cost testimony one transcript as only or allowable v. Spain Bell for the record necessary appeal. P 222 P 235. al., et Or stand. as filed shall correction the cost bill With this is denied. rehearing The petition