than a month's time. In July, 1911, the | ties. While it is generally held that the fact plaintiff resided in Berkeley, Cal., and was that a hiring at so much per day, week, employed as superintendent of construction month, or year raises no presumption that for a safe company in San Francisco. His the hiring was for such a period, but only at family consisted of a wife and six children, the rate fixed for whatever time the party one a boy of 19 who worked with him. On the 11th of that month the manager of the defendant company, who was acquainted with plaintiff's capabilities, wrote to him submitting a proposal for him to come to Portland and enter into the services of defendant as superintendent of its safe and vault works, describing the business, in which the investment was approaching $200,000, and the future prospects and possibilities, and stating: * * "Personally, I know you can fill the bill. *Now, I would wish you to give this your most earnest consideration, as I know it is a most important step for a man with a home and a family. * *"" Towards the close of the letter the following statement appeared: "The place would be worth to you $175.00 per month for the first year, $200.00 the second year, and beyond that would be entirely dependent upon the results." Plaintiff answered that he looked with favor upon the proposition. On July 22d the company, by its manager, Mr. H. Austin Biddle, wrote: "We now beg to submit you formal proposal for your services in accordance with the writer's personal letter to you of the 11th inst., and with the understanding that same must go into effect not later than Sept. 1, 1911." Plaintiff accepted the proposition by letter, and, pursuant to the arrangement came to Portland and took up the duties of superintendent of the defendant company's plant on September 1, 1911. His services were satisfactory. The results improved. He continued in the employment for 16 months, when, as a result of a change in the management of the plant, he was discharged. fendant contended that the contract of employment was for an indefinite term, and that the trial court should have found as a matter of law that the writing evidenced such a contract. The company also claimed that it had the right to discharge plaintiff at any time at its pleasure. may serve, yet the rate and mode of payment are often determinative of the period of service, and in some cases it has been held that they do raise a presumption as to the period of service. 26 Cyc. 974. It is competent for either party to show what the mutual understanding of the parties was in reference to the matter of employment; but, unless their understanding was mutual that the services were to extend for a fixed and definite period, it is an indefinite hiring, and is determinable at the will of either party; but, when from the contract itself it is evident that it was the understanding of the parties that the time was to extend for a certain period, their understanding, fairly inferable from the contract, will control. 2 Wood's Master & Servant, § 136; Barlow v. Taylor Mining Co., 29 Or. 132, 44 Pac. 492; Christensen v. Borax Co., 26 Or. 302, 38 Pac. 127; McKinney v. Statesman Publishing Co., 34 Or. 509, 56 Pac. 651. In order to show what the real understanding and intention of the parties was, all the facts and circumstances surrounding the parties and the transaction may be shown, as that the plaintiff was to the knowledge of the defendant seeking permanent position, and any facts and circumstances that tend to establish the mutual understanding. Franklin v. Harris, 24 Mich. 115; Fisk v. Henarie, 13 Or. 156, 9 Pac. 322; Flegel v. Dowling, 54 Or. 40, 102 Pac. 178, 135 Am. St. Rep. 812, 19 Ann. Cas. 1159; 26 Cyc. 969; Nash v. Kreling (Cal.) 56 Pac. 260. [7] In an action at law tried by the court without the intervention of a jury the findDe-ings of the court upon the facts import the same conclusiveness as the verdict of a jury. Section 159, L. O. L. When there is any evidence to sustain the findings, they will not be disturbed on appeal. In Kelly v. Carthage Wheel Co., 62 Ohio St. 598, 57 N. E. 984, the contract was evidenced by correspondence; the plaintiff making an offer which was accepted by the defendant. In his letter the plaintiff says: It appears from the evidence that at the beginning of the second year of Doolittle's services, at his suggestion, the manager without any question increased his compensation to $200 per month in accordance with the agreement contained in the writings. C. A. Hart, of Portland (Carey & Kerr, of Portland, on the brief), for appellant. M. H. Clark, of Portland (Clark, Skulason & Clark, of Portland, on the brief), for respondent. BEAN, J. (after stating the facts as above). [1-6] As a general rule in the United States, an indefinite hiring is presumed to be a hiring at will, in the absence of evidence of custom, or of facts and circumstances showing a contrary intention on the part of the par "I will want you to guarantee me $3,000 per year, a proportion of this amount to be paid me each day, and a settlement to be made at the end of each year, and, if I should make more than the above guaranty, the difference be paid me at the end of each year, when settlement is made." Upon acceptance of this offer the plaintiff entered the employ of the defendant on May 1, 1892, and continued therein until September 31, 1893, when he was discharged. Hav ing been paid what he had earned up to the time of his discharge, he brought suit to recover damages in the sum of $1,500 for the six months following. He secured a verdict for the full amount, which was sustained on appeal. 62 Ohio St. at page 610, 57 N. E. at vision relating to the employment of services. page 986, the court says: "And in the interpretation of contracts of this kind, as well as of all others, none of their provisions should be ignored or overlooked that serve to indicate the intention of the parties." In Du Pont v. Waddell, 178 Fed. 407, 101 C. C. A. 335, we find the following language: "It is true, as said by counsel and sustained by authority, that, nothing more appearing, the language used by the parties would be controlling in fixing the duration of the relation of employer and employé. We must, however, look to surrounding circumstances, the relations then existing, the character of the employment, and if, after doing so, the meaning of the language used and the intention of the parties is doubtful, or capable of more than one construction, the question should be submitted to the jury." In Chamberlain v. Detroit Stove Works, 103 Mich. 124, 61 N. W. 532, quoted from in the Du Pont Case, we find the following: "What the relation was and how long it was to continue depended upon the original hiring, the subsequent relation, the nature of the services performed, and the mutual understanding of the parties. As to duration, we think it was competent for the jury to determine from the evidence that the hiring was annual, and not subject to revocation or change by the board of directors or the president." In 2 Thompson on Corporations, § 1580, we find the rule: "The power of the general manager, acting within the strict scope or the apparent scope of the corporate business about which and over which his employment extends, is practically unlimited as to the details of the business. In the internal management of the corporate business he has been held to have the right to exercise authority in the following instances: To employ clerks, servants, and laborers and fix their compensation; * to employ a superintendent of a mine; and to employ a foreman in a paper mill. * * The evidence tended to show that the manager had authority to make the contract in question, and the court, acting as a jury, having so found, the findings should not be disturbed. Finding no error in the record, the judgment of the lower court is affirmed. MOORE, C. J., and McBRIDE and HARRIS, JJ., concur. CARLSON et al. v. O'CONNOR. (Supreme Court of Oregon. Feb. 1, 1916.) RIGHT TO 1. SPECIFIC PERFORMANCE RELIEF. 25 To entitle plaintiff to the specific performance of a contract to sell land, it is necessary for him to clearly prove a valid contract between himself and defendant. formance, Cent. Dig. 88 56-58, 60; Dec. Dig. 2. 158-SUFFICIENCY OF EVIDENCE-AUTHORITY OF AGENTS. Evidence in a suit for the specific performance of a contract for the sale of land, alleged to have been made by defendant's agent, held insufficient to show any instrument in writing, subscribed by the party to be charged, or by his lawful agent under written authority, as requir [8] In the present case the trial court, acting in the capacity of a jury, could properly take into consideration the nature of the employment, and the circumstances, as disclosed by the correspondence, which tended to show that at the time he was employed by the defendant he had a large family and was residing in California. He had a position which was apparently permanent. The manager of the defendant company had been associated with him in the business there, and was satisfied that he would make good. Both parties appear to have been negotiating with a view to making arrangements which were contemplated to continue for a consid-ed by L. O. L. § 804. erable length of time. The statement that, "The place would be worth to you $175.00 per month for the first year, $200.00 the second year," under all the circumstances, would at least warrant a jury in concluding that the employment was for two years; in other words, the contract fixed a definite time. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. d 158.] Department No. 1. Appeal from Circuit Court, Muitnomah County; C. U. Gantenbein, Judge. Suit by Peter G. Carlson and another against M. H. O'Connor for the specific per formance of a contract to sell land. Decree for defendant, and plaintiffs appeal. Af [9] Defendant takes the position that the manager of the corporation was not author-firmed. ized to enter into this contract with the plaintiff. The evidence tended to show that Mr. Biddle had the sole charge of the plant and of the hiring of plaintiff, and that all persons interested in the matter acquiesced in the arrangement for 16 months. It is said in Herman on Estoppel, § 800: "No man can adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit." J. E. Bronaugh, of Portland (Bronaugh & Bronaugh, of Portland, on the brief), for appellants. P. H. D'Arcy, of Salem, and C. W. Fulton, of Portland (Ridgway & Johnson, of Portland, on the brief), for respondent. BEAN, J. It appears from the record that a tract of 106 acres of land on the outskirts of Portland was advertised to be sold at public sale by the administrator of the estate It is not shown that the by-laws of the of A. G. Ryan, deceased. On March 16, 1914, corporation controlled the authority of the the plaintiffs attended the sale and bid for manager in this respect or made any pro- i the property. The highest bid, $16,000, was made by one Patt in behalf of defendant, | them a good title to said land at $24,000, M. H. O'Connor. Upon looking into the val- and paid him $100 of such sum. ue of the property, plaintiffs decided that they would pay more for it, and deposited the required amount to bring about a resale, which took place May 28, 1914. The plaintiffs were present and bid, but the highest offer of $24,000 was made by H. Blatt, who was representing O'Connor. When the sale was over the plaintiffs regretted they had not offered more for the property, and finally decided to deposit a sufficient amount to bring about a second resale, according to the statute, and $2,600 was placed with the attorney for the administrator of the estate for that purpose. During this time Mrs. M. P. Long, who resided in New York, and had a general power of attorneys from all the heirs of A. G. Ryan, deceased, was present in Portland and was represented in the matters of the estate proceedings by attorneys other than the one for the administrator. O'Connor employed Blatt to bid for him at the sale, as the former had a mortgage on the property, and agreed to pay him $100 for his services. On the day following the second sale, Blatt assigned all his title and interest in the property by virtue of his bid to O'Connor, and authorized the administrator to execute a deed to the latter. At that time plaintiffs were unaware that Blatt had purchased at the sale for O'Connor, or that he had already made an assignment to him of his bid. The heirs represented by Mrs. Long consented that the sale should be confirmed in Blatt, which was done about June 18, 1914, whereupon the administrator executed a deed of the property to O'Connor, according to the assignment made by Blatt to him. When plaintiffs demanded of Blatt that he deed the property to them as agreed, he told them that he had been cheated out of it, and wanted to give them back the $100 paid him, which plaintiffs refused to accept. Plaintiffs tendered O'Connor performance of their part of the contract entered into with Blatt, and demanded that he specifically carry out its terms. Upon his refusal so to do this suit was instituted. The trial court held that each side was trying to take advantage of the other, and that both were trying to take advantage of the estate, and that, the plaintiffs not having come into court with clean hands, the parties should be left in statu quo. [1, 2] Blatt's conduct in the transaction cannot be explained from any rational standpoint. Neither the circumstances in connection with the transaction nor the weight of the evidence indicate that O'Connor authorized Blatt to make any sale of the land. On the contrary, they refute this. Defendant seemed acquainted with its value. appears to be utterly irresponsible. Plaintiffs knew that Blatt had not yet obtained title to the land, but took no precaution to ascertain as to his reliability. Whether Blatt intended to obtain the $1,000 from plaintiffs for his own benefit is unnecessary to determine. It appears that he did not inform Blatt til defendant requested him to execute a deed A few days after the plaintiffs had deposited the amount of money necessary to bring about a second resale, Blatt came to one of them and told him that if they would take $1,000 and withdraw their request for a resale he would give it, or if they would give him $1,000 he would transfer his bid to them. Plaintiffs told Blatt that if it could be done legally they would give him the $1,000 for his bid, and withdraw their request for a resale, because in that way they would get the property for $25,000. Plaintiff's then went to Mrs. Long and her attor-O'Connor of the deal with the plaintiffs unneys, and explained Blatt's offer, asking if there was any objection to their accepting it. One of her attorneys told plaintiff Kallstrom that it was a dangerous thing to do. In settling this estate Mrs. Long had been detained from her home for a long time, and pressing matters required her presence there. The plaintiffs had prevented the first sale for $16,000 from being confirmed, and had thus saved the estate $8,000, and Mrs. Long and her attorneys were of the opinion that if the plaintiffs did not want to carry on the resale they could withdraw from it. Accordingly Mrs. Long and her counsel consented that the money deposited by plaintiffs be returned to them. After he had notified the probate judge of the proposition made by the plaintiffs, the attorney for the administrator returned the deposit. After consultation with their attorneys, plaintiffs entered into a contract on June 15, 1914, with H. Blatt and his wife, by which they agreed to pay him $1,000, provided he would secure told you to do that?" In explaining Blatt asserts: He said that nobody in particular told him to do so. In order for the plaintiffs to be granted the relief asked, it is necessary for them to clearly prove a valid, binding contract between themselves and defendant. Kine v. Turner, 27 Or. 356, 41 Pac. 664. From a careful examination and consideration of all the evidence we find that they have failed to do this. Section 804, L. O. L., provides: "No estate or interest in real property, other than a lease for a term not exceeding one year, ty, can be created, transferred, or declared othnor any trust or power concerning such proper erwise than by operation of law, or by a convey. ance or other instrument in writing, subscribed [purposes intended by plaintiff, was an incumby the party creating, transferring, or declaring brance breaching defendant's agreement. the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law." It is contended on behalf of the plaintiffs that defendant authorized Blatt to make the contract with plaintiffs and that defendant is estopped from denying Blatt's authority. The only basis for this claim must have its foundation upon the testimony and statements of Blatt which are wholly unreliable. The decree of the lower court was right, and is therefore affirmed. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 199, 200; Dec. Dig. 112.] In Banc. Appeal from Circuit Court, Washington County; J. A. Eakin, Judge. Action by B. M. Lombard against M. B. Kies, receiver of the Commercial Bank of Vancouver, Wash., to rescind a contract of purchase of land. From a decree for plaintiff, defendant appeals. Modified. On June 28, 1912, M. B. Kies, as receiver of the Commercial Bank of Vancouver, gave to F. C. Malpas an option to purchase a tract MOORE, C. J., and MCBRIDE, J., concur. of 476 acres of farm land, the option (omitHARRIS, J., concurs in the result. LOMBARD v. KIES. (Supreme Court of Oregon. Feb. 1, 1916.) 1 VENDOR AND PURCHASER 3-OPTION TO PURCHASE REAL ESTATE-CONSTRUCTION. Plaintiff's option to purchase real estate for which he paid $1,000, provided that upon defendant vendor's procuring good title by deed or foreclosure of a purchase contract plaintiff should make the additional payment on the premises of $4,000 and should pay the balance of the purchase price in certain installments, including the assumption of a prior mortgage. Upon payment of the $4,000, a supplemental agreement was entered into whereby plaintiff might anticipate the contract by paying for any part of the tract which he should specify in writing, at stipulated prices per acre for the different kinds of land, for which defendant was to give plaintiff a good and sufficient deed. Held, that the agreement was a unilateral option under which plaintiff, upon complying with its terms, was entitled to a deed to such portion of the land as he might select, free from such prior mortgage. ting the description of the land) reading as follows: * "Know all men by these presents that M. B. Kies, as receiver of the commercial Bank of Vancouver, hereinafter called party of the first part, for and in consideration of the sum of one thousand dollars ($1,000) to him in hand paid, does hereby bargain, give, and grant to F. C. Malpas, hereinafter called party of the second part, for the period hereinafter provided, the sole, exclusive, and irrevocable right and privilege of purchasing that certain described tract or parcel of land, situate in the county of Washington, state of Oregon, to wit, ** upon the terms and at the price hereinafter provided. It is understood between the parties hereto that the party of the first part has instituted a proceeding in foreclosure against Paul H. Reimers and Grace Reimers, his wife, and B. M. Lombard and Caroline S. Lombard, his wife, for the foreclosure of a certain contract of purchase covering the above-described premises, made and entered into between the party of the first part and said Paul H. Reimers and Grace Reimers, his wife, on March 16, 1911, which foreclosure suit is pending in the circuit court of Oregon for Washington county. The party of the first part agrees to carry on and prosecute said proceeding to a successful final determination and [Ed. Note.-For other cases, see Vendor and ises in himself free from the claims of any and to procure title to all of said described premPurchaser, Cent. Dig. § 3; Dec. Dig. 3.] all of said defendants. In case the party of 2. VENDOR AND PURCHASER 112-OPTION the first part shall procure a deed to said premTO PURCHASE LAND-PARTIAL EXERCISE—ises he shall immediately notify party of the SUPPLEMENTAL AGREEMENT- - BREACH- RE- second part thereof in writing, and the party of the second part shall, within 15 days after such notification, make an additional payment upon said premises in the sum of $4,000, and shall pay the balance of the purchase price of said premises as follows: One-third thereof one year from the date of acquiring deed; onethird thereof one year later; one-third thereof one year thereafter: Provided, however, that the payment falling due in the year in which it becomes necessary to pay Balfour, Guthrie & Co.'s mortgage shall not be then made, but shall be made one year after the date of the last payment as above provided: Provided said mortgage is paid by the party of the second part when due. In case deed is not procured, but the party of the first part procures title in said foreclosure proceedings by strict foreclosure, he shall give notice in writing to the party of the second part of the fact of procuring title, and the said payment of $4,000 shall be made within fifteen days thereafter, and subsequent payments shall be made thereafter as above provided. The total purchase price shall be the amount which shall be decreed in said foreclosure proceeding to be due the plaintiff against the defendants, Paul H. Reimers and Grace Reimers, including costs, disbursements, and interest and attorney's fees, and the further SCISSION. Where plaintiff orally demanded a portion of the tract under the terms of the supplemental agreement, but did not specify the land in writing, he could not have rescission of the entire contract on the ground that defendant refused to convey free from the prior lien, since, having himself failed to comply with the terms of the agreement, he cannot complain of defendant's default. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 199, 200; Dec. Dig. 112.] 3. VENDOR AND PURCHASER 112-OPTION TO PURCHASE Land GOOD TITLE NEW HIGHWAY-INCUMBRANCE-PURCHASE. Where the parcel plaintiff desired to purchase under such supplemental agreement was a 40-acre tract containing a dwelling which plaintiff desired for a summer residence, the location of a new highway through the tract within 50 feet of the dwelling after the option contract had been made and partially carried out by plaintiff's $4,000 payment entitled plaintiff to a rescission of the contract, since the establishment of the highway unknown to the parties, which rendered the premises unsuitable for the amount of $16,320.00, with interest thereon at tled to a good and sufficient deed of this receivthe rate of 6 per cent. per annum from and er conveying such portion of the premises as he after May 1, 1912, and the assumption by the shall in writing specify upon payment, as folparty of the second part of the certain mort- lows: For uncleared land upon said premises gage for $7,000 in favor of Balfour, Guthrie & $50.00 per acre; for cleared land $80.00 per Co., now a first lien upon said premises. It is acre, except for the governmental subdivision further understood that the payment of $1,000 of forty (40) acres upon which the dwelling herein acknowledged shall apply as part of said house stands, which shall be conveyed, as aforepurchase price in case all of the purchase price said, upon the payment of $120.00 per acre. shall be paid by the party of the second part. And whereas, the said option provides that the In the event that the party of the first part total price of said premises shall be the amount shall be unable to carry out this agreement or decreed in certain foreclosure proceedings, plus shall for any reason fail to carry out the same, an additional amount therein specified, and the the party of the second part shall, at his option, amount decreed to be due plaintiff, M. B. Kies, be entitled on demand to the return of said as receiver in said foreclosure proceedings, by sum of $1,000 to be paid to him by the party oversight and omission failed to include the of the first part, but the party of the first part sum of $325.00, with interest thereon at the shall not be bound to complete the terms of this rate of 6 per cent. per annum from and after contract in case said property is redeemed with- May 15, 1912, it is understood that said lastin the time limited by law. It is understood named sum shall, for the purpose of said option, and agreed that the option herein granted shall be added to the amount of the decree actually exist in favor of the party of the second part rendered in favor of the plaintiff in said foreuntil the expiration of 15 days after written no-closure proceedings, and the consideration or tice by party of the first part to party of the purchase price of said premises shall be insecond part of the deed or obtaining of title by creased in said sum." decree of strict foreclosure, as above provided. It is further understood and agreed that the agreements herein contained shall bind the heirs, assigns, personal representatives, and successors of both of the parties hereto." On December 4, 1912, M. A. Zollinger, having taken an assignment of the option from Malpas, paid $4,000 thereon, and took from Kies a receipt and supplemental contract reading thus: Subsequently Zollinger assigned the contracts to plaintiff, who, being desirous of making full payment for the 40-acre tract upon which the house stood, in accordance with the terms of the supplemental contract above set out, made a proposition to defendant, though not in writing, to pay therefor as provided in the event that he could have the tract released from the lien of the Balfour, Guthrie & Co. mortgage. The parties were not able to secure a release from the mortgagors without the payment of the entire mortgage debt, and, as the defendant was unable or unwilling to do this, the deed to the 40-acre tract was never executed. "Portland, Oregon, December 4, 1912. The undersigned, M. B. Kies, receiver of the Commercial Bank of Vancouver, Washington, hereby acknowledges receipt from M. A. Zollinger of the sum of four thousand dollars ($4,000) paid to said receiver in accordance with the terms of the certain option and written agreement dated June 28, 1912, between the undersigned and F. C. Malpas, covering a certain tract of land in On April 5, 1912, after the necessary prethe counties of Washington and Yamhill, in liminaries had been observed the county the state of Oregon, known as the 'Aldrich court of Washington county made and enterplace,' which option and agreement has been assigned to the said M. A. Zollinger by the ed an order establishing a county road which, said F. C. Malpas, said payment being made in according to the survey, would run practithe manner following: $3,666.35 thereof in cally through the dooryard and within 50 cash, and $333.65 thereof by receipt of B. M. feet of the dwelling house on the 40-acre Lombard for costs, expenses, disbursements, and attorney fees advanced by the said B. M. Lom- tract above mentioned. Neither plaintiff nor bard on behalf of said M. B. Kies, receiver, defendant had any actual knowledge of the in the foreclosure suit of said M. B. Kies, re-establishment of such highway until a few ceiver, v. Paul H. Reimers et al.; and whereas, by the terms of said option it is agreed that the said receiver shall prosecute said suit to a successful final determination and to procure title to all of said premises in himself free from the claims of any and all of the defendants therein, and the right of the defendants to appeal from the decree rendered in said suit has not expired: It is further agreed and understood between said receiver and said M. A. Zollinger that in case an appeal shall be perfected in said suit, the said receiver shall and will, upon the request of the said M. A. Zollinger or his assigns, return to the said M. A. Zollinger the amount paid upon said premises, to wit, the sum of five thousand ($5,000.00) dollars, excepting said sum of $333.65. In consideration of the premises and of the payment at this time of the amounts above specified, and in consideration of payment of one dollar to said receiver by said M. A. Zollinger, receipt of which sum is hereby acknowledged, said receiver further agrees that said M. A. Zollinger, his heirs and assigns, shall have the right and privilege of paying upon the said contract dated June 28, 1912, any sum or sums he may desire at any time or times before the maturity thereof, and upon such payment being made he shall be enti days before the commencement of this suit, at which time they together visited the prem ises, and found the county's employés busily engaged in grading the road through the property. Shortly thereafter plaintiff began this suit to rescind the contract and recover the payments made thereon, alleging two breaches thereof: (1) The refusal of defendant to convey the 40-acre tract free from the incumbrance of the Balfour, Guthrie & Co. mortgage; and (2) the establishing of the public road so near the dwelling house as to render the premises unfit for the purpose for which he was purchasing it, that is, for a suburban home for his family, and that therefore the defendant will be permanently prevented from giving him a good conveyance free from incumbrance. Defendant, answering, denies the alleged breaches of the contract, and by af. firmative answer seeks a strict foreclosure of |
