Appeal from Circuit Court, Curry County. James A. Norman, Judge.
Patrick Ford, Medford, argued the cause for appellants. With him on the briefs were Ford & Cowling, Medford.
Paul W. Haviland, Medford, argued the cause for respondents. With him on the brief were Richard A. Stark, and Haviland, deSchweinitz & Stark, Medford.
Bryson, Justice. O'Connell, Chief Justice, and Denecke, Holman, Tongue and Howell, Justices.
Plaintiffs commenced this suit seeking reformation of a land sale contract to correct a scrivener's error. Defendants, purchasers under the contract, interposed affirmative defenses of laches and fraud. The trial court gave judgment to defendants, finding that plaintiffs had failed to demonstrate a mutual mistake in the price and that plaintiffs' claim was barred by laches and unclean hands. Plaintiffs appeal.
Plaintiffs owned a 15-acre parcel of land fronting on the Pacific Ocean in Curry County, Oregon. In July, 1965, plaintiffs engaged Mr. Charles H. Grayshel, a real estate agent, to sell the property for $80,000. At that time, plaintiffs did not know the number of feet of ocean frontage. Grayshel requested this information and plaintiff and his daughter, using a 100-foot steel tape, measured 810 feet of frontage along the seacliff.
Grayshel invited defendant L. C. Ashcraft to view the property. Ashcraft had been on the property several times in the past, removing logs from the beach and hauling them away over plaintiffs' property. During his inspection, Ashcraft was told by plaintiff and Grayshel that the ocean frontage was 810 feet.
Plaintiffs agreed to sell the parcel to defendants for $75,000 as follows: $2,000 as earnest money; $23,000 upon execution of the contract; and the balance of $50,000 payable in annual installments with interest. Defendants requested that the property be divided into three parcels and sold as such. The parties executed the three separate contracts of sale on November 6, 1965. Soon thereafter plaintiff learned from his accountant that a modification of the contracts would result in a substantial tax saving. The purchasers agreed to the modification, which was not to alter the down payment or their indebtedness. In March, 1966, Ashcraft was informed by his attorney that the ocean frontage was less than 810 feet. When Grayshel asked the buyers to initial the modified contracts they refused, saying that they would sign when plaintiffs made an adjustment in the purchase price for the discrepancy in the ocean frontage. Subsequently, plaintiffs discovered that due to a scrivener's error,
one of the modified contracts reflected a down payment of $920 in excess of the amount actually paid.
The first assignment of error is addressed to the finding of the trial court that plaintiffs failed to sustain their burden of proof on the issue of mutual mistake.
The evidence adduced at trial clearly shows that the plaintiffs received a down payment of $25,000, not $25,920. Defendant L. C. Ashcraft stated that he agreed to a $25,000 down payment:
"Q We won't go into the matter of the price. That's already been stipulated to. The amount that was paid was $25,000.00, is that right?
"Q And that it was, in fact, divided into three parcels?
"A I knew it was when we got the three separate deeds, which I -- actually not deeds, but contracts -- which I had anticipated getting one contract. I mean, I made a $25,000.00 down payment on a $75,000.00 piece of property. I just asked that when the deeds were delivered that they was delivered that-a-way. I mean, this was our agreement."
The trial court also stated, at the conclusion of the trial:
"But I'm satisfied with these matters, factually. First of all, I'm satisfied that there was $920.00 less paid ...