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Shinn v. Blinkhorn

December 14, 1972

SHINN ET UX, RESPONDENTS,
v.
BLINKHORN ET AL, APPELLANTS



Appeal from Circuit Court, Lane County. Edward Leavy, Judge.

John G. Meyer, Eugene, for appellants.

Butler, Husk & Gleaves, Eugene, for respondents.

In Banc. Bryson, J.

Bryson

Plaintiffs brought this suit seeking an accounting and a money judgment. The trial court rendered a decree for plaintiffs, and defendants have appealed.

Plaintiffs owned real property in Eugene, Oregon, subject to a mortgage which was in default. In June of 1969 plaintiffs entered into an oral agreement with defendant James R. Blinkhorn, a realtor, and Blinkhorn Company for the sale of the property. The agreement was reduced to writing but not executed by plaintiffs. Plaintiffs were to convey the property without consideration to defendant Blinkhorn Company, of which defendant James Blinkhorn was an officer and stockholder. Blinkhorn Company was to bring plaintiffs' mortgage payments current and make repairs to the house in preparation for sale. Blinkhorn Company would sell the property, deduct its expenses, and divide equally any profit with plaintiffs. The agreement was to terminate when the property was resold and, until that time, Blinkhorn Company was

to have control of the property and the right to make all decisions regarding the sale.

Plaintiffs conveyed title to the real property to Blinkhorn Company on June 30, 1969. Blinkhorn Company refurbished the house and deeded it to defendants James R. Blinkhorn and Elnora Blinkhorn. Blinkhorns sold the house and conveyed title to William G. Cassara and Karen W. Cassara, husband and wife, on October 15, 1969.

Cassara was in the swimming pool construction business. At approximately the same time Cassara bought the property, defendant James Blinkhorn bought a swimming pool from Cassara to be constructed at his own home. The down payments on the contract to purchase the real property and the swimming pool contract were approximately the same, $4,350 and $4,200, respectively. Blinkhorn and Cassara agreed to offset and cancel the down payments on each transaction.*fn1 Although each contract recites that the down payment was received, the parties simply exchanged credits, disregarding small amounts for earnest money and a closing fee. Mr. and Mrs. Cassara, upon receiving title to the property, mortgaged the same and this money paid off the plaintiffs' mortgage

to Pacific First Federal Savings and Loan. The defendant James R. Blinkhorn received a real estate commission of $1,194 on the sale of the property to Mr. and Mrs. Cassara.

Plaintiffs were never consulted about the sale or its terms. When plaintiffs learned of the sale in January, 1970, they demanded some $1,600, which was one-half of what they felt had been the profit on the sale of the property. Blinkhorn refused, saying he had received no profit from the sale, but that a profit would be realized when the pool was ...


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