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Trachsel v. Barney

December 7, 1972

TRACHSEL, APPELLANT,
v.
BARNEY ET UX, RESPONDENTS



Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.

Fred A. Granata, Portland, argued the cause for appellant. With him on the briefs were Ringle & Herndon, Gladstone.

John C. Anicker, Jr., Oregon City, argued the cause for respondents. With him on the brief were Jack, Goodwin & Anicker, Oregon City.

In Banc. Howell, J.

Howell

Plaintiff filed this suit seeking specific performance of a contract to purchase real property or, in the alternative, to recover damages in the event specific performance is denied. The trial court entered a decree dismissing the suit, and plaintiff appeals.

On October 13, 1969, plaintiff and defendants entered into an agreement whereby defendants agreed to sell to plaintiff a tract of land in Oregon City. The

agreement provided that the sale was conditional upon the plaintiff securing a "zone change permitting construction of multi-family dwelling consisting of not less than one hundred (100) units which purchaser will apply for forthwith." The plaintiff was allowed until February 18, 1970, to obtain a zone change.

Contemporaneous with the above agreement and as part of the consideration for the sale of the land, the parties agreed that the plaintiff would construct for defendants a residence and a shop on other premises owned by the defendants. The agreement stated:

"It is further agreed between the parties hereto that construction on said residence and shop shall start at the same time as construction starts on the property being acquired by second parties from first parties, but no later than May 1, 1970. * * *"

The zoning was changed; however, only 89 units were permissible on defendants' land. Plaintiff purchased from a third party an adjacent tract which was sufficient to allow 10 more units. (Apparently the parties have treated a 99-unit apartment as the equivalent of 100 units.)

Plaintiff's application for a zone change on defendants' tract of land was granted on March 4, 1970. The zone change on the second tract purchased by plaintiff was granted on May 21, 1970.

The construction contract required the plaintiff to design the plans and specifications for the residence and shop and submit the plans to the defendants for their approval.

Construction on the house and shop had not been started by July 10, 1970, and on July 13 the defendants advised plaintiff that ...


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