Thomas v. Peebler

BURNETT, J. — 1. There is nothing before us as data for a decision except the pleadings, findings of fact and conclusions of law and the resultant judgment,' to which alone we are confined in our investigations as there is no bill of exceptions. The argument has taken [258] the form of a debate upon the sufficiency of the complaint. The defendant contends that it is disclosed that the agreement was made on June 16th and was not to be performed within a year, and that its being oral makes it void under the statute of frauds: Section 808, subd. 1, L. O. L. This contention, however, is fallacious, for the complaint directly alleges that a lease was made by the parties on August 15th for one year; that under it the defendant took possession of the property and agreed to pay for the term $540 in installments of not less than $45 each. The contract embodied in this statement of the complaint is valid, for the statute of frauds declares void only “an agreement for the leasing for a longer period than one year, or for the sale of real property or of any interest therein”: Section808, subd. 6, L. O. L. 2, 3. The findings of fact in a trial by the court are equivalent to a verdict and in the absence of any bill of exceptions we must presume that there was evidence before the court competent to prove the quoted allegation, and the verdict therefore cannot be disturbed. The averments of the complaint as to the preliminary bargaining were unnecessary and might have been left out. If they had been attacked as redundant instead of irrelevant and immaterial it would have been proper to strike them from the pleading. In White v. Holland, 17 Or. 3 (3 Pac. 573), cited by the defendant, it appeared by the record that the lease relied upon was actually made on January 20th for one year, to commence March 1st, thereafter. The whole agreement was made at the earlier date. No subsequent stipulation was counted upon and hence as this was oral and not to be performed within one year the court was right in declaring it void. In Dechenbach v. Rima, 45 Or. 500 (77 Pac. 391, 78 Pac. 666), [259] the latter had bought out a previous tenant of the plaintiff with the expectation of securing a new lease from the landlord for a term of three years, but without taking any writing from anyone to that effect. After he had come into possession as subtenant, without any lease from the owner of the property, Rima sought to defend an action of forcible entry and detainer on an alleged oral promise of Deehenbach to make such a lease. The substance of the ruling was that he had no competent evidence to sustain such a pleading as there was no writing embodying the contract alleged. Bowman v. Wade, 54 Or. 347 (103 Pac. 72), was a case in which the plaintiff sought to recover money loaned on an oral agreement to the effect that it should be paid in three years with interest at 10 per cent. The court held that the recovery could not be had upon such a contract, because it was not in writing and could not be performed in one year. A recovery of the money with interest at 6 per cent was permitted, however, upon the implied contract deduced from the facts stated in the pleading, as for money had and received. These cases cited by the defendant are not by the mark in the present juncture. The essence of the complaint is found in the allegation of a verbal lease of August 1, 1914, made for one year. Despite the surplusage, there is enough in the pleading to authorize a recovery. There is no basis upon which to challenge the findings of fact. The conclusion of law to be drawn from those findings is correct and judgment must be affirmed. Affirmed. Rehearing Denied. Bean, Benson and Harris, JJ., concur.