Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge.
Robert C. Anderson, Astoria, argued the cause for appellants. With him on the brief were Anderson, Fulton, Lavis & Van Thiel, Astoria.
Jeanyse R. Snow, Astoria, argued the cause for respondents. With her on the brief were Macdonald, Dean, McCallister & Snow and Robert C. Macdonald, Astoria.
Tongue, Justice. O'Connell, Chief Justice, and Denecke, Holman,*fn* Howell and Bryson, Justices.
This is a suit for specific performance of an "earnest money receipt" for the sale of land near
Astoria. Defendants appeal from a decree by which the trial judge ordered the parties to "perform pursuant to a land sale contract as contemplated by the earnest money receipt," the terms of such "contract" being attached to that decree.
Defendants contend that: (1) the trial court erred in denying defendants' motion for a jury trial; (2) the legal description of the land was insufficient; (3) the trial court ignored testimony to the effect that the property was to be surveyed and "legal documents" prepared; (4) the terms of the earnest money receipt were indefinite and uncertain, and (5) the award of $1,950 as attorney fees was unreasonable and improper.
After some preliminary discussions with defendants, and after consulting their attorney, plaintiffs made a visit to defendants for the purpose of making an offer to purchase a portion of defendants' land. Plaintiffs had previously visited the Clatsop County Courthouse and had secured a small map of the area, including the two tracts involved. They also had obtained from their attorney a printed Stevens-Ness "Earnest Money Receipt," which had been partly filled out by him. The attorney had attached an incomplete description of the two tracts and advised plaintiffs to also attach to it the map and to outline on the map in red and blue pencil the boundaries of the two tracts to be purchased when the boundaries of such tracts were agreed upon with defendants.
Mr. Phillips and Mr. Johnson walked along the county road which ran north and south between the two tracts and discussed what portion of defendants' land on the west side of the road should be included in the transaction as the second tract to be sold and where the north boundary line of that tract should
run. The first tract, lying east of that road, presented no problem.
They then returned to Mr. Johnson's house, where Mr. Phillips proceeded to mark on the map in red and blue pencil the outline of the boundaries of the two tracts. The price of $2,500, and terms of payment were also agreed upon at that time and inserted in the "Earnest Money Receipt." By those terms $100 was to be paid as earnest money and $900 as an additional down payment, with the balance of $1,500 payable as follows: "$750.00 plus in. at 6% to be paid on or before July 30 -- 1972 and $750.00 plus interest at 6% to be paid on or before July 30 -- 1973 which will be final payment." There was also discussion about having a surveyor survey the two tracts and prepare a "legal description" and about having an attorney prepare the "final papers." There is a conflict in the testimony, however, as to some of the matters discussed by the parties at that time.
All the parties then signed the "Earnest Money Receipt" and also signed the attached map, on which the boundaries of the two tracts had been marked, as well as the attached description of the two tracts, the second of which being still incomplete. Plaintiffs delivered to defendants a check for $100 at that time and later delivered another check for $900. Both checks were then returned by defendants, who refused to complete the transaction. Plaintiffs then filed this lawsuit.
1. The trial court did not err in denying defendants' request for a jury trial.
Defendants contend that they were entitled to a jury trial on the issue whether "certain conditions
precedent" were to be met before the signed documents became effective and cite Smith v. Cain, 69 Or 479, 139 P 566 (1914), for the proposition that when title to real property is involved the parties are entitled to a trial by jury of such a question. Defendants also contend that even if the trial judge had discretion in this case whether or not to direct that such a question be submitted to a jury for decision, there was an abuse of any such discretion.
It is well established, however, that suits in equity, including suits for specific performance of contracts, are ordinarily to be tried to a court without a jury and that the constitutional right to trial by jury does not apply to suits in equity. See Sugarman v. Olsen, 254 Or 385, 388, 459 P2d 545 (1969), and Katchen v. Landy, 382 U.S. 323, 337, 86 S Ct 467, 15 L ed 2d 391 (1966).
ORS 17.040 provides that an issue of fact in a suit in equity may be submitted to a jury. In such a case, however, this is a matter within the sound judicial discretion of the trial judge. Upon examining the record in this case we find nothing to show that the trial judge abused such discretion in this case.
2. The description of the land to be conveyed was sufficient.
It would serve no useful purpose to recite the conflicting testimony relating to conversations between the parties about the north boundary line of the second tract of land. For the purposes of this case it is sufficient to say that according to Mr. Phillips, he and Mr. Johnson discussed and agreed that the north line of that tract should terminate at the intersection of an existing county road and an abandoned county
road and that this was the agreed terminus of the line for that boundary, as drawn by him on the map attached to the "Earnest Money Receipt." Mr. Johnson, however, denied that the intersection of the two roads was agreed upon as the terminus of that line, but testified that it was agreed that it terminate at a certain cedar tree some distance farther to the south on the county road. He also contended that the drawing on the map did not clearly show that this line terminated at the point of intersection of the two roads, considering a curve in the existing county road, a question relating to the true location of the abandoned county road, and the small scale of that map.
Plaintiffs offered the testimony of a surveyor and a title insurance company employee to the effect that based upon the drawing of the lines on the map, together with county records showing the location of the existing county road and the abandoned county road, they could prepare a description for both tracts of land sufficiently definite to convey good title to such tracts. Defendants offered the testimony of the county surveyor to the contrary.*fn1
It is well established in Oregon that a description of land is sufficiently definite and certain if it is
possible for a surveyor to ascertain from the description, "aided by extrinsic evidence," what property was intended to be conveyed. See O'Hara v. Brace, 258 Or 416, 422, 482 P2d 726 (1971), and cases cited therein. See also Western Hills, Oregon, Ltd. v. Pfau, 265 Or 137, 508 P2d 201, 206 (1973); Gubser v. Town and Stoutenburg, 202 Or 55, 73-75, ...