Opinion
Argued September 19, 1928
Affirmed November 13, 1928 Costs retaxed December 4, 1928 Rehearing denied December 18, 1928
From Multnomah: G.F. SKIPWORTH, Judge.
For appellant there was a brief and oral argument by Mr. W.Y. Masters.
For respondent there was a brief and oral argument by Mr. Maurice W. Seitz.
In Banc.
This suit was instituted for the purpose of reforming a contract for the purchase of real property and rescinding the same after reforming. Plaintiff is the purchaser. Defendant is the seller. Plaintiff desired to purchase a parcel of land in the City of Portland for the purpose of constructing an apartment house. He applied to H.A. Brubaker, a realtor of the City of Portland, who showed him a number of tracts of land none of which was satisfactory. Through a son of defendant, Brubaker learned of a tract of land that defendant had for sale. After some considerable negotiations defendant agreed to sell the tract of land for the sum of $5,250. Plaintiff agreed to pay $5,500 for the land and a contract was entered into for the purchase and sale of said tract. The contract was in writing, was prepared by said realtor and was not seen by defendant until plaintiff had signed it. The tract of land was in the zone No. 2 of the City of Portland, where apartment houses are permitted. By the terms of the contract defendant agreed to furnish to plaintiff a "title Insurance Policy from a reliable Abstract Company showing good and marketable title is to be furnished the Purchaser forthwith." Said contract also contains the following provision:
"The property is to be conveyed by good and sufficient Warranty Deed, free and clear of all liens and encumbrances to date, except building restrictions and Zone `2' which are Zone 2."
The contract recites that the sale price is to be $5,500. Of this amount $500 was paid at the time the contract was entered into. Two hundred and fifty dollars of this amount was paid to defendant and the other $250 was retained by Brubaker for his commission. Defendant and her son both testified positively that defendant refused to pay any commission but did agree to sell the tract for $5,250 net. Said Brubaker did not have the property listed. She never saw plaintiff and entered into no contract with him, except the written contract which is sought to be reformed by this proceeding. Plaintiff seeks to reform the instrument so as to have the contract read:
"That said property is to be conveyed by good and sufficient warranty deed free and clear from all liens and encumbrances to date, except building restrictions in conflict with the provision of zoning ordinance of said city of Portland as to what buildings can be erected in zone 2 of said city * *."
The plaintiff seeks to recover the $500 paid on the contract for the reason that search of the title of said premises disclosed that there was a building restriction in the conveyance to one or more of defendant's predecessors in interest in the property. This restriction prevented the abstract company from issuing the title insurance policy as required by the plaintiff. The sole question presented here is whether or not plaintiff and defendant agreed that defendant should warrant a title against building restrictions, other than as contained in the written agreement. AFFIRMED.
Plaintiff alleged that plaintiff and defendant entered into an agreement whereby defendant agreed to warrant to plaintiff the title to the premises free from all building restrictions, except such as are provided by ordinance of the City of Portland for zone 2 of that city. The burden of proof rests upon plaintiff to prove that allegation. We think plaintiff has failed to adduce the proof. Accepting the evidence adduced by plaintiff for its full value it fails to prove that defendant agreed at any time to convey a title warranting the right of plaintiff to construct an apartment house on the premises. The most the evidence adduced by plaintiff could establish is that defendant understood that plaintiff was purchasing the property for the purpose of constructing an apartment house thereon. There is no evidence at all that she knew that any building restriction was embodied in the conveyance to her predecessors. She testified that she knew nothing about any restrictions. There is no evidence that she did. There is no evidence that the deed which conveyed the property to defendant contains any building restrictions. The building restrictions contained in the chain of title are between her predecessors in interest; not between her and her grantor. It is hardly necessary to repeat that before a party to a contract is entitled to a reformation the agreement between the parties must be proven by clear and convincing proof to be different from the written contract entered into between the parties. The contract as reformed must correctly state the agreement as actually made by all parties thereto: Dolph v. Lennon's, Inc., et al., 109 Or. 336 ( 220 P. 161); Spexarth v. Rhode Island Ins. Co., 118 Or. 22 ( 245 P. 515); Anderson v. Burgess, 110 Or. 265 ( 223 P. 244); Mendelsohn v. Mendelsohn, 104 Or. 281, 287 ( 207 P. 158).
The fact that defendant knew that plaintiff wanted the land for an apartment building will not bind defendant to a contract she never agreed to. Brubaker may have failed to express himself clearly. He must go further and show defendant agreed to warrant the title against building restrictions other than such as are provided by ordinance for zone No. 2. Brubaker made the contract, reduced it to writing, and defendant signed it as so prepared. There is no evidence that she made any other contract. Before the contract can be reformed plaintiff must show by clear and convincing proof that another agreement was made. It is not sufficient for him to show the contract as drawn did not correctly express his intentions.
The contract between the parties specifically excepts from the warranty building restrictions and zone No. 2 of the City of Portland. Plaintiff by bringing this suit places the same construction upon that contract that the court does and the only construction in our opinion of which the contract is susceptible. We take the language of the contract to mean that in addition to the building restrictions in zone No. 2 such other building restrictions as the record title of the premises disclosed. This conclusion requires an affirmance of the decree appealed from. It is so ordered. AFFIRMED.
BEAN and ROSSMAN, JJ., absent.