Schwedler v. First State Bank

BEAN, J. 1. It is not alleged or claimed by plaintiff that the Cornutt place was not purchased in accordance with' the instructions of plaintiff, or that plaintiff directed defendant Meyers to purchase the place on the condition that plaintiff could sell his $35,-000 farm, or that the place which he purchased was of any less value than the sum paid therefor. The conveyance of the “Cornutt place” to plaintiff was made on or before March 24, 1914. This action was commenced on September 21, 1916. It might fairly be supposed that a $21,000 farm would yield some rent and profit. It does not appear from the complaint that. the income therefrom during the time the land was held by plaintiff was insufficient to pay the interest on the [39] purchase price and the taxes on the real property and all other expenses connected therewith. It is not shown by the complaint that plaintiff was injured in any way by the transfer of the Clackamas County land to Brande by defendant Meyers instead of paying to Brande the $7,000 and then Brande paying to defendant Meyers $7,000, the price of the defendant Meyers’ 85-acre tract. It was simply closing two transactions at one time. In the sale of the Comutt place to plaintiff, he obtained precisely what he bargained for, and for the agreed price. The other alleged fraudulent representation contained in paragraph VI of the complaint is as follows: “That the defendants had a purchaser for plaintiff’s property; that said purchaser would pay therefor the sum of $33,500.00, the plaintiff to pay to the defendants the sum of $1500.00 as commission.” And in paragraph IX of the complaint: “That plaintiff, relying upon said representations as aforesaid, further agreed with the defendants that he would sell, and instructed the defendants to sell, his property to the purchaser had and known by the defendants for the sum of $33,500.00, and agreed to pay to the defendants as their commission in said transaction the sum of $1500.” It is not shown by the complaint that the defendants represented that they had a purchaser for plaintiff’s farm ready at any time to pay $35,000 therefor. The complaint does not indicate when it was expected plaintiff’s property would be sold. The fact that plaintiff executed a mortgage for $7,000 upon his property for the purpose of raising money to make the cash payment upon the Cornutt place, and also executed a mortgage for $14,000, $2,000 of which was due on or before three years from that date, and $12,000 on or before five years from that date, shows that he did not expect [40] that his Gresham property would he sold at that time, as by the sale of his Gresham land, he-would have realized money with which to pay the entire purchase price of the Comutt property. This also indicates that there was no binding contract for the sale of his property. It is not alleged that the defendants, for any consideration, agreed to sell plaintiff’s property or in any way guaranteed the making of such sale. A fair construction of the complaint indicates that the plaintiff undertook to make a larger deal than he was financially able to carry out.- It appears that he entered into this transaction a short time before the beginning of the great world war. He does not state that he was unable to make a sale of his property, nor- does he show whether or not the conditions of the real estate market changed soon after his purchase was made. It appears to have been a matter of speculation. If within a short time after the purchase of the Comutt property the market had been such that he could have sold either that property or his Gresham place for an advance of $5,000 or $6,000, he would have had no cause for complaint. The transaction on the part of the defendants as to the purchase of the Cornutt place according to the complaint appears to have been in the nature of advice. Plaintiff does not show any reason why he did not take a chance upon the speculation the same as any purchaser. The complaint does not state a cause of action. 2. As to the second ground of the demurrer, the position of plaintiff is that he could institute the action within six years under the provisions of Section 6, subdivision 4, L. O. L., which enumerates: “An action for taking, detaining or injuring personal property, including an action for the specific recovery thereof. ’ ’ [41] The contention of plaintiff is that the fraud was an injury to property. This is strictly an action for trespass on the case, and not on contract. The time for the commencement of this action is governed by Section 8, subdivision 1, L. O. L., which specifies two years for beginning “An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not herein especially enumerated.” This was the holding in Hood v. Seachrest, 89 Or. 457 (174 Pac. 734), an opinion by Mr. Justice Benson, which was an action for fraud and deceit, and it was held to be governed by Section 8, L. O. L. The decision in that case is decisive of this case: See, also, Smith v. Day, 39 Or. 531 (64 Pac. 812, 65 Pac. 1055); Dalton v. Kelsey, 58 Or. 244, 250 (114 Pac. 464). There was no error in sustaining the demurrer to plaintiff’s complaint. Therefore, the judgment of the lower court is affirmed. Affirmed. McBride,'C. J., and Johns and Bennett, JJ., concur.