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91 Or. 556

Chapler v. Allen

Oregon Supreme Court

Decided March 25, 1919

Oregon Supreme Court · decided 1919-03-25

From Marion: George G. Bingham, Judge. Department 1. This is an equitable proceeding, wherein the complaint alleges that on January 26, 1913, plaintiff entered into a contract with one C. W. Brasher for the purchase of a tract of land described as follows: “Beginning at the north comer of Lot One of the Ewald Fruit Farms in township 8 south, range 3, west of the Willamette Meridian, Marion county, Oregon; thence south 32 degrees 45 minutes east 4.64 chains along, the east…

Reversed and Remanded · Decided 1919-03-25

BENSON, J.

¶1Defendant insists that the complaint does not allege any facts entitling the plaintiff to any relief whatever, and we are compelled to agree with this contention. When shorn of its formality of statement, the pleading in effect says:

“I entered into a contract with defendant’s grantor, whereby I agreed to purchase, and he agreed to sell to me, a certain tract of land, containing .86 acres. The tract does not contain .86 acres, or more than .50 acres, and therefore, I want the purchase price rebated in proportion to the deficiency of the area.”

¶2It is conceded by the plaintiff that a simple mathematical computation of the area as described in the complaint discloses an area of .86 of an acre. This being true, the pleading, in itself, negatives the only ground upon which any right to relief is founded.

¶3The evidence introduced by plaintiff upon the trial tends to prove that the tract of land involved herein, consists of a triangle, having its apex at the north end, where two public roads converge; that before he entered into the contract, the boundaries were pointed *559out to him by Brasher’s agent, and as so indicated, they did not include any portion of the converging highways, but that the description in the contract includes the land to the center of each of such roads. There is nothing in the pleadings which would mate evidence of this character admissible or relevant. The plaintiff may have a good cause of suit, but he has not pleaded it, and therefore it is not before us upon the record.

¶4We conclude that the decree must be reversed, and the cause will be remanded with permission to the plaintiff to apply to the lower court for leave to amend his complaint, and for further proceedings not inconsistent with this opinion.

¶5Reversed and Remanded.

McBride, C. J., and Burnett and Harris, JJ., concur.
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