Western Oregon Trust Co. v. Hendricks

Mr. Justice McBride delivered the opinion of the court. It is clear from the testimony that the menagerie maintained by the city adjoining the property of defendants and the barns and stables adjunctive to it greatly impair the value of plaintiff’s property for residential purposes. The public taste in these matters has so changed since the time of Adam and Noah that the howl of coyotes, the roaring of lions, the growling of bears, and the screaming of cougars have become such an annoyance to the average ear that few persons are willing to live in close proximity to an aggregation of such animals; but, while this is true, the evidence shows that defendants were as well aware of the conditions as the agent of plaintiff who sold them the property. 1. The defendant E. W. Hendricks testifies as follows to the representations made to him by plaintiff’s agent: “The first thing, the park was to be changed in there, the animals were to be taken out of the park, within six months. * * The buffalo pens were to be removed, and at the time they were negotiating, in fact, had negotiated, and had the promise of the park board that these animals would be removed positively within six months. * * The barn was to be removed. ’ ’ Mr. Keasey, the agent of the plaintiff in making the sale, testifies on this subject: “The matter was discussed regarding the animals in the zoo, and I told him I had the members of the [112] park board and tbe mayor on the ground, and they promised me they would do all they could to have at least part of the animals removed, and have the old barn torn down; but I made no definite promise that it would be done at any specified time. I only relied on the city government. * * “Q. Did you have them up there? “A. I did. “Q. Did you tell him truly what you thought? “A. Yes. “Q. Did you make any further statement or representation concerning the matter? “A. I did not. Mr. Hendricks said it seemed unreasonable that they could maintain an old barn; that it was a nuisance. He felt sure it would be removed.” Mr. Bennis, another witness for defendants, testifies, in substance: That when he bought a neighboring lot Keasey told him that the park board had promised to remove the animals and abate the nuisance in a short time. “Q. He told you they promised they would do that? “A. Yes. “Q. And, based on that, he told you he thought they would be removed within a short time? ‘‘A. Yes. “Q. And the park board passed a resolution about that time, didn’t it? “ A,. I think they have it on their minutes that they would abate this.” Further testimony on this line was objected to as not the best evidence. Conceding, without deciding, that a representation that the animals would be removed and the nuisance abated was so material under the circumstances as to avoid the contract in case of failure on the part of the city to remove them, the testimony falls far short of proving the representation alleged. The burden of proof is upon the defendants. They are contradicted by Keasey, while the testimony [113] of Bennis tends rather to corroborate his statement that he only expressed an opinion derived from facts disclosed to Hendricks at the time the negotiations were in progress. It seems fair to infer from the evidence that Keasey had secured such a promise from the park board, and that both he and Hendricks believed that it would be kept. 2. Stress is laid upon the following provision in the written agreement: “The seller agrees to improve at its own expense all the streets in said Parkside with hard surface pavement, excepting that portion of Kingston Avenue which lies south of the intersection of said Kingston Avenue with Parkside Drive, and lay water-pipes and construct sewers throughout the whole of said Park-side.” The evidence tends to show that at a point on Edison Street, approximately 74 feet north of the southwest corner of defendants’ property, there is a sharp declivity, breaking off into Washington Street northerly, which it is impracticable to pave, and that when Edison Street was being paved Mr. Hendricks demanded that a pavement should be put in up to this declivity, admitting that it was impracticable to pave the remainder of the street. This was done to his satisfaction, and, having accepted this as performance of the covenant, he cannot , now insist that his grantor shall do an impracticable or impossible thing. 3. It is also urged that there was a failure on the part of plaintiff to lay water-pipes and construct sewers in the addition as provided in the written contract; but the testimony shows that these improvements were made long before the commencement of this suit, and before Mr. Hendricks had given any [114] intimation of an intention to rescind the contract, and it does not appear that he would have been benefited by an earlier installation of these conveniences. The evidence does not bear out defendants’ contention that plaintiff orally agreed to install gas service. On the contrary, we think the weight of testimony is to the effect that it declined to make such a promise. The evidence as to whether plaintiff’s agent orally promised a street-car line to the addition within one year from the date of the contract is contradictory; the defendants affirming, and plaintiff’s agent denying, that such a promise was made. It cannot be said that the defendants, who have the burden of proof in this respect, have shown the existence of such promise by the preponderance of evidence. 4. In any event, where, as in this case, the contract has been reduced to writing and the mutual obligations of the parties specified, defendants cannot vary or alter the written contract by showing contemporaneous parol stipulations not included therein, without alleging and proving that some fraud was practiced upon them to prevent such stipulation from being inserted in the written contract, and there is nothing of that kind in this ease: Looney v. Rankin, 15 Or. 617 (16 Pac. 660); Stoddard v. Nelson, 17 Or. 417 (21 Pac. 456); Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135). In any event, the parties seem to have settled this contention between themselves long before the suit. 5. Mr. Hendricks objected to paying interest on his note until the car line should have been built, and thereupon the plaintiff gave him a writing waiving interest until it was put in operation; and he has had the benefit of that waiver in the decree here. It further appears that after this writing was given he [115] continued to treat the property as his own, and joined with other lot owners in the addition in a suit to prevent a city garage from being erected in such a situation as to be a nuisance to the property, and must be held to have acquiesced in the settlement offered by plaintiff. On the whole case it is evident that plaintiff and defendants relied upon the promise of the park board to remove their collection of nasty, noisy beasts to some other locality, and that if this had been done the other trifling matters urged here by defendants would have been overlooked. That the city continues to offend the ears and nostrils of its citizens with the noise and stench of its collection of beasts is no fault of plaintiff. Defendants were made aware of the conditions before the purchase, and took the chances that the city would refuse to remove the nuisance, deeming such a contingency morally improbable. That their reasonable expectations were not realized is unfortunate, but we have no right to visit the consequences of it upon the plaintiff. The decree is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.