Chapter 41

41.270

NOTES OF DECISIONS

Where testimony that “other contractors do the same thing” was to the effect that the work was incomplete rather than improperly done, it was not an attempt to establish “usage” as that word is used in this section. Brown v. D2S Resources, 61 Or App 8, 656 P2d 946 (1982), Sup Ct review denied

41.415

NOTES OF DECISIONS

State was entitled to introduce photograph of victim while still alive because photograph did not depict personal characteristics, describe emotional devastation of family or indicate victim’s family members’ opinions or characterizations of defendant. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990); State v. Williams, 313 Or 19, 828 P2d 1006 (1992)

41.580

NOTES OF DECISIONS

In general

“Void”

Contract that by its own terms is capable of performance within one year is outside Statute of Frauds and no writing is required. Sun Studs, Inc. v. Applied Theory Associates, Inc., 772 F2d 1557 (1985)

Statute of frauds does not require “delivery” of writing. D’Angelo v. Schultz, 306 Or 504, 760 P2d 866 (1988)

“Subscribed”

Unsigned agreement outline arriving in same envelope as cover letter which did not by reference incorporate agreement and signed by patent attorney of party did not satisfy subscription requirement of this section. Sun Studs, Inc. v. Applied Theory Associates, Inc., 772 F2d 1557 (1985)

Waiver of defense

Where, in trial court, no demurrer has been filed nor objection raised that contract is void and unenforceable under Statute of Frauds, this contention cannot be raised for first time on appeal. Southworth v. Oliver, 284 Or 361, 587 P2d 994 (1978)

In suit by optionees to obtain specific performance of written option to purchase real property, where optionees alleged that optionor orally agreed to extend time for exercise of option, complaint raised issue of whether landowner waived contract provision and was estopped to later retract waiver and rely on strict terms of contract. Davidson v. Wyatt, 289 Or 47, 609 P2d 1298 (1980)

Void agreements

Scope

An oral agreement purporting to create rights of survivorship in real property is within the statute. Bridgman v. Stout, 10 Or App 474, 500 P2d 731 (1972)

Fiduciary relationship may exist between seller and broker prior to written agreement authorizing or employing broker. Starkweather v. Shaffer, 262 Or 198, 497 P2d 358 (1972)

If a contract, otherwise to continue for more than a year, is by its own terms subject to termination within a year, it is not within the prohibition. Frontier Ins. Agency, Inc. v. Hartford Fire Ins. Co., 262 Or 470, 499 P2d 1302 (1972)

An interest in a limited partnership may be created by parole despite the fact that the limited partnership had interests in real property. Pyle v. Wolf Corp., 354 F Supp 346 (1972)

When vendee sues for money had and received, seeking to recover payment made pursuant to an agreement within this section, vendor is entitled to prove that vendee’s breach of the oral agreement harmed vendor. Golden v. Golden, 273 Or 506, 541 P2d 1397 (1975)

When the promise to pay the debt of another is relied upon and the reliance is sought to subserve the business purposes of the promisor, the promise does not come within the purview of this section. Meader v. Orbit Inn Corp., 276 Or 921, 556 P2d 1365 (1976)

The purchase, development and sale of an apartment project could properly be shown by parol evidence as being within the scope of a partnership agreement. Harestad v. Weitzel, 272 Or 199, 536 P2d 522 (1977)

A contract which contained provision allowing either party to terminate 90 days after plaintiff began performance was not within this section. Thompson v. Industrial Lumber Co., 41 Or App 519, 599 P2d 468 (1979), Sup Ct review denied

Vendor’s statements that vendees should not settle suit to quiet title to easement were admissible since that part of agreement, if any, did not involve transfer of real property, but rather authority to settle law suit. Marshall v. Wattles, 67 Or App 442, 678 P2d 762 (1984)

Where there was ample evidence to support finding that defendant’s main purpose in guaranteeing Wind Surfing’s debt was his own substantial, personal, immediate and pecuniary interest in receiving money he had loaned Wind Surfing as general creditor, trial court was correct in holding that main purpose exception to Statute of Frauds was applicable. White Stag v. Wind Surfing, Inc., 67 Or App 459, 679 P2d 312 (1984)

Where issue of fact exists as to whether written premarital agreement was destroyed by defendant, defendant may not invoke this section to protect fraud. Baker v. Mohr, 111 Or App 592, 826 P2d 111 (1992)

Estoppel

Allegation that plaintiff gave up prior position in order to take employment for term in excess of one year with defendant was sufficient to state cause of action on oral agreement which was otherwise within statute and was sufficient to defeat defendant’s demurrer. Stevens v. Good Samaritan Hosp., 264 Or 200, 504 P2d 749 (1972)

Reliance by promisee, to his detriment, on oral agreement may cause promisor to be estopped from asserting statute of frauds. Stevens v. Good Samaritan Hosp., 264 Or 200, 504 P2d 749 (1972)

Under evidence that consultant, in reliance on oral promise, spent two years securing supplies for woodchip purchaser, purchaser was estopped from asserting Statute of Frauds with respect to consultant’s action for unpaid commissions and anticipatory breach of contract. Gray v. Mitsui and Co., Inc., 434 F Supp 1071 (1977)

In action at law, party may be estopped, in appropriate circumstances, from asserting Statute of Frauds. Siegner v. Interstate Production Credit Assn., 109 Or App 417, 820 P2d 20 (1991)

No agreement was formed where county staff expressed encouragement for project but applicant knew negotiations could not ripen into enforceable agreement without commissioners’ approval of permit. J.J. & L. Properties, Inc. v. Henry, 122 Or App 395, 858 P2d 161 (1993), Sup Ct review denied

Expression of consideration

Viewed as a whole, the written earnest money agreement for the sale of corporate stock and mortgaged realty clearly indicated that the value of the land conveyed served as consideration for the assumption of the mortgage, so that the letter between the parties did not violate this section. U.S. v. Pollard, 524 F2d 808 (1975)

Leases

An oral agreement to pay rentals to the lessor for life and then to the defendant, purporting only to shift the payment of rent from the lessor to a third person, did not conflict with the objectives of this section and was therefore valid. Watters v. Watters, 270 Or 673, 528 P2d 1347 (1974)

Membership agreements granting hunting and fishing rights in property were enforceable where description of property, in light of extrinsic evidence, applied with reasonable certainty to single, identifiable piece of property. High v. Davis, 283 Or 315, 584 P2d 725 (1978)

This section is not applicable to an agreement to provide a lease. Ralston v. Spoor, 39 Or App 883, 593 P2d 1285 (1979), Sup Ct review denied

Where defendant’s agent in leasing space for mobile home to plaintiff on month-to-month basis, promised orally to secure county approval for permanent location of mobile home in space, contract did not create interest in real property and was not subject to statute of frauds. Abraham v. Kendall, 69 Or App 341, 686 P2d 428 (1984)

Statute of frauds did not bar plaintiff’s claim for breach of contract, despite failure to specify location of subject lands where arguably invalid provision of contract had been fully performed. Willamette Quarries v. Wodtli, 308 Or 406, 781 P2d 1196 (1989)

Note or memorandum

Written agreement for broker to sell real estate must contain description of property, authorization to sell and amount of broker’s commission, but need not contain a term such as seller agreeing to repair sidewalk. Ward Cook, Inc. v. B-OK, Inc., 261 Or 227, 493 P2d 136 (1972)

Letter from defendant’s predecessor in title to plaintiff which sought permission to allow cars from plaintiff’s property to pass on to property of predecessor for benefit of predecessor, in consideration of which predecessor would do certain things for plaintiffs which did not include granting of easement or servitude over defendant’s property for benefit of plaintiff’s property was not sufficient memorandum to charge defendant’s property with easement or servitude. Corey v. United Savings Bank, 52 Or App 263, 628 P2d 739 (1981), Sup Ct review denied

Statute of frauds does not require “delivery” of writing. D’Angelo v. Schultz, 306 Or 504, 760 P2d 866 (1988)

Agreements concerning real property

Specific performance of real property sales contract was properly denied where board of trustees’ attorney, who negotiated contract which board later rejected, did not have written authority to accept offer. Coleman v. Parry Center, 43 Or App 775, 604 P2d 424 (1979), Sup Ct review denied

Where lease is required to be in writing, subsequent oral modification of lease terms is ineffective. Washington Square, Inc. v. First Lady Beauty Salons, 290 Or 753, 625 P2d 1311 (1981)

Where one venturer revealed to third party that he had no authority to sell real property for less than a specified price and later received express authority from other venturer to sell at lower price, such authority was required to be in writing to satisfy statute of frauds. Stone-Fox, Inc. v. Vandehey Development Co., 290 Or 779, 626 P2d 1365 (1981)

Grantors’ conveyance of easement pursuant to oral contract takes contract out of the statute and therefore this section does not bar grantors from proving oral promise made by grantee’s agent to induce grantors’ promise to convey although agent had no written authority to make the promise. Wiggins v. Barrett & Associates, 295 Or 679, 669 P2d 1132 (1983)

Absence of writing is defense to enforcment of contract, not challenge to existence of contract and, generally, neither offer nor acceptance need be in writing to make contract, even for sale of real property. D’Angelo v. Schultz, 110 Or App 445, 823 P2d 997 (1992)

Requirement for written authorization applies to employee of municipal corporation. Capital Development Co. v. Port of Astoria, 109 F3d 516 (9th Cir. 1997)

Where partial performance has occurred in oral contract involving mutual exchange of interests in real property, only equitable remedies are available against nonperforming party. Parthenon Construction and Design, Inc. v. Neuman, 166 Or App 172, 999 P2d 1169 (2000)

Where services agreement required purchase of land from third party and arrangement for transfer of deed from third party to party other than purchaser, services agreement was agreement for sale of real property. Outback Contracting, Inc. v. Stone Southwest, Inc., 167 Or App 98, 1 P3d 469 (2000), Sup Ct review denied

Oral acceptance, modification or abandonment

Oral modification which eliminated certain property from sale was not within statute of frauds. Norris, Beggs & Simpson v. Eastgate Theatres, Inc., 261 Or 56, 491 P2d 1018 (1971)

Oral modification of written contract is not ineffective unless modification resulted in new agreement which would itself be within statute of frauds. Norris, Beggs & Simpson v. Eastgate Theatres, Inc., 261 Or 56, 491 P2d 1018 (1971)

Terms of brokerage agreement not required by the statute of frauds to be in writing may be orally modified. Sipe v. Pearson, 276 Or 715, 556 P2d 654 (1976)

Oral agreement that broker will pay commission to salesman who is agent of broker is void if broker purchases the property in his or her individual capacity. Ehler v. Peck, 286 Or 523, 595 P2d 1245 (1979)

Part performance

Like Parol Evidence Rule, Statute of Frauds is seldom applied according to its literal terms and contract void under literal reading of statute is rendered enforceable in equity if party seeking to avoid statute has partially performed oral contract. Siegner v. Interstate Production Credit Assn., 109 Or App 417, 820 P2d 20 (1991)

Before partially performed oral contract will be enforced in full, court must find there are equitable grounds for enforcement. Martin v. Allbritton, 124 Or App 345, 862 P2d 569 (1993); Oltmanns v. Lewis, 135 Or App 35, 898 P2d 772 (1995)

Taking possession of real property and making valuable improvements either in reliance on oral promise or following parol gift is sufficient part performance to place agreement outside Statute of Frauds. Conradi v. Perkins, 149 Or App 149, 941 P2d 1083 (1997), Sup Ct review denied

Where cotenant claims that possession of jointly owned land is evidence of partial performance of oral contract for transfer of land, there must be change in relationship between parties that would draw observer’s attention and indicate contract had been made. Aylett v. Aylett, 185 Or App 563, 60 P3d 1114 (2003)

LAW REVIEW CITATIONS: 28 WLR 223 (1992)

41.675

NOTES OF DECISIONS

Transcripts and testimony regarding statements made before hospital disciplinary committees are not admissible into evidence. Straube v. Larson, 287 Or 357, 600 P2d 371 (1979)

Presence of third parties at hospital disciplinary hearings does not affect evidentiary privilege of this section. Straube v. Larson, 287 Or 357, 600 P2d 371 (1979)

Fact that state immunizes only good faith conduct demonstrates that plaintiff has state law remedy for actions against him in bad faith. Patrick v. Burget, 800 F2d 1498 (1986)

Where necessary inference of testimony in excess liability case is that professional assessment committee agreed case was defensible and testimony would have conveyed substance of committee’s findings, trial court did not err in ruling testimony inadmissible. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

41.740

NOTES OF DECISIONS

In general

Notwithstanding existence of the filled-in form contract defendant was entitled to introduce evidence that the contract was not as agreed and that there was “no contract.” Pendleton Grain Growers v. Pedro, 271 Or 24, 530 P2d 85 (1975)

Reliance on the parol evidence rule cannot be raised for the first time on appeal. Allen v. Allen, 275 Or 471, 551 P2d 459 (1976)

Even if the parol evidence rule would permit proof of an alleged collateral oral agreement, there was no evidence it was breached. Hamilton v. Auto Driveaway Co., 278 Or 529, 564 P2d 1052 (1977)

Parol evidence rule does not apply unless parties intended writing to memorialize terms of agreement. Livran v. Fowler Tire Service, Inc., 282 Or 379, 578 P2d 1244 (1978)

Provisions of contract for sale of plywood and veneer business concerning indemnification for product liability claims were clear and unambiguous, precluding admission of parol evidence. Southwest Forest Industries v. Vanply, 43 Or App 347, 602 P2d 1113 (1979)

Vendor’s statements could not be excluded under parol evidence rule when vendees were also asserting right to rely on events or agreements outside scope of written land sale contract. Marshall v. Wattles, 67 Or App 442, 678 P2d 762 (1984)

Oral agreement to term of contract made prior to conflicting term in written contract is not waiver of right to rely on written terms, but is inadmissible parol evidence. Mid-River Transportation Services, Inc. v. VanPelt, 121 Or App 532, 854 P2d 506 (1993), Sup Ct review denied

Writing is to be considered as containing all the terms of the agreement

Oral agreement is not superseded or invalidated by subsequent or contemporaneous integration, nor written agreement by subsequent integration relating to same subject matter, if agreement is not inconsistent with the integrated contract, and (1) is made for separate consideration, or (2) is such an agreement as might naturally be made as separate agreement by parties situated as were the parties to the written contract. DeVore v. Weyerhaeuser Co., 265 Or 388, 508 P2d 220 (1973), cert. denied, 414 US 1108, 38 L Ed 2d 736, 94 S Ct 836

Oral admissions of plaintiff that agreement included matters not contained in the writing may be proved to show that it was not assented to as a complete integration, however complete it may look on its face. DeVore v. Weyerhaeuser Co., 265 Or 388, 508 P2d 220 (1973), cert. denied, 414 US 1108, 38 L Ed 2d 736, 94 S Ct 836

The parol evidence rule will not exclude evidence of an oral agreement which is not inconsistent with the written contract, and which is such as might naturally be made separately under the circumstances. Rodasky v. Loucks, 267 Or 521, 517 P2d 665 (1973)

Evidence of oral “stipulations” that were reduced to writing and attached to the base before plaintiff signed the lease was properly admitted. Wall v. S.E.C. Co., Inc., 270 Or 553, 528 P2d 1054 (1974)

Circumstances indicating whether document is intended as complete include business experience of parties, use of legal counsel, relative bargaining power of parties and apparent completeness of document. Hatley v. Stafford, 284 Or 523, 588 P2d 603 (1978)

Court determination on how court finding of fact regarding document and party intent affects admissibility of evidence is reviewable as matter of law. Wescold, Inc. v. Logan International, Ltd., 120 Or App 512, 852 P2d 960 (1993), Sup Ct review denied

Particular instruments or agreements

Parol evidence is not admissible to vary or contradict the terms of a consent decree where the consent decree is unambiguous on its face. Renken v. Harvey Alum. Inc., 347 F Supp 55 (1971)

Parol evidence is admissible to show a condition precedent to the enforceability of a bank check. Engelcke v. Stoehsler, 273 Or 937, 544 P2d 582 (1975)

Where property settlement agreement provided only that each party released and discharged the other from all claims and property demands and made no mention of life insurance policy, this section did not prevent trial court from receiving parol evidence showing decedent’s intent to retain former spouse as beneficiary of insurance policy. Prudential Insurance Co. v. Weatherford, 49 Or App 835, 621 P2d 83 (1980)

Where definitive fourteen-page contract was signed by parties after four months of negotiation following execution of earnest money agreement and where contract expressly provided that it constituted entire agreement of parties, parol evidence rule prohibited consideration of terms of earnest money agreement or evidence of negotiation in interpretation of contract. Oakridge Cablevision, Inc. v. First Interstate Bank, 65 Or App 640, 673 P2d 532 (1983)

Showing intent or understanding

Evidence of contracting party’s unilateral intention, rather than the mutual intention of the parties, was properly excluded. Fry v. D. H. Overmyer Co., 269 Or 281, 525 P2d 140 (1974)

Application of indemnity clause to plaintiff’s signing of lease for corporation shortly before plaintiff was formally made officer, director and shareholder created extrinsic ambiguity as to scope of indemnity clause and allowed consideration of parol evidence regarding intent of parties. Rodway v. Arrow Light Truck Parts, 96 Or App 232, 772 P2d 1349 (1989)

Trial court did not err when it excluded parol evidence regarding parties’ understanding of terms “leased” and “occupied” in commercial lease because terms were neither patently nor latently ambiguous as used in agreement. Hayden Corporation v. Gayton, 98 Or App 703, 780 P2d 787 (1989)

Collateral oral agreements

The parol evidence rule does not affect a parol collateral contract independent of a written agreement. Blehm v. Ringering, 260 Or 46, 488 P2d 798 (1971)

An oral agreement placing a condition precedent on the effectiveness of a written contract is operative unless such condition is inconsistent with the language in the writing. Osburn v. Lucas, 263 Or 480, 502 P2d 1382 (1972)

Although literal reading of this section would exclude any parol evidence of agreement reduced to writing, court has treated statute as codification of common law parol evidence rule and recognized the various common law exceptions to the rule. Hatley v. Stafford, 284 Or 523, 588 P2d 603 (1978)

Evidence of oral agreement accompanying written real property transaction was properly admitted under this section since it was not inconsistent with written terms and was such that it was natural, considering all the circumstances, that parties enter into separate agreement. Greenwade v. Citizens Bank of Oregon, 50 Or App 395, 624 P2d 610 (1981)

This section bars admission of evidence of alleged oral agreement made before written agreement only if parties intended writing to be final and complete expression of their agreement. Siegner v. Interstate Production Credit Assn., 109 Or App 417, 820 P2d 20 (1991)

Conversation occurring after execution of written agreement was not admissible as evidence of alleged oral agreement reached prior to execution of written agreement. Abercrombie v. Hayden Corp., 320 Or 279, 883 P2d 845 (1994)

Evidence of circumstances

Regardless of a written agreement, petitioner was entitled to present evidence in support of his claim based on a theory of implied contract or quantum meruit. State ex rel Hwy. Comm. v. Chaparral Recreation Assn., 17 Or App 416, 522 P2d 236 (1974)

In a proceedings to establish primary liability for the payment of a deficiency in a foreclosed mortgage, parol evidence of the circumstances under which the earnest money agreement was executed was admissible to resolve the ambiguities in such agreement as to the parties’ intent. U.S. v. Pollard, 524 F2d 808 (1975)

Court may consider circumstances underlying formation of contract to determine whether particular contractual provision is ambiguous. Batzer Construction, Inc. v. Boyer, 204 Or App 309, 129 P3d 773 (2006), Sup Ct review denied

Evidence to establish illegality or fraud

Proof of fraud by evidence of prior or contemporaneous promises and representations is not prohibited by this section. Howell v. Oregonian Publishing Co., 82 Or App 241, 728 P2d 106 (1986), as modified by 85 Or App 84, 735 P2d 659 (1987), Sup Ct review denied

Evidence alleging contract to be sham is challenge to validity of contract, not attempt to vary terms of contract. Roberts v. Maze, 161 Or App 441, 985 P2d 211 (1999), Sup Ct review denied

Evidence to explain ambiguity

Evidence of signator’s intent was admissible where credit agreement was ambiguous on its face. Bonded Credit Company v. Hendrix, 282 Or 35, 576 P2d 795 (1978)

Where it was unclear whether parties intended that monthly payments be spousal support or property division, in light of surrounding circumstances trial judge was entitled to consider parol evidence of what parties intended to accomplish by monthly payments. Truax and Truax, 62 Or App 130, 659 P2d 983 (1983)

Parties to contract

An agent who entered into a land sale contract for a disclosed principal was a party to the contract and entitled to enforce the contract individually where: 1) the contract named him as purchaser and individual without reference to the principal or fact that he was an agent; 2) the seller did not care who the principal was; and 3) the agent signed a demand note and an application for a conditional use change in his individual name. Ritchie v. Mundon, 268 Or 283, 520 P2d 445 (1974)

LAW REVIEW CITATIONS: 54 OLR 243 (1975); 28 WLR 223 (1992); 84 OLR 369 (2005)

41.880

See annotations under ORS 40.040.

41.900

See annotations under ORS 40.450.

41.905

NOTES OF DECISIONS

A guilty plea to a traffic infraction is not admissible as an admission against interest under this section. Ryan v. Ohm, 39 Or App 947, 593 P2d 1296 (1979), Sup Ct review denied

Admissibility of guilty plea does not require that guilty plea resulted in entry of conviction. Chaffee v. Shaffer Trucking, Inc., 151 Or App 323, 948 P2d 760 (1997)

41.910

NOTES OF DECISIONS

The defendant’s motion to suppress was properly denied where the evidence objected to was not obtained by the exploitation of an illegal eavesdrop conducted by the police. State v. Armstrong, 24 Or App 785, 547 P2d 170 (1976)

Where officer stopped defendant for suspected use of intoxicants and tape recorded all conversation with defendant from time he approached car until shortly after arrest and tape showed officer informed defendant their conversation was being recorded two minutes after they began talking, error in admitting portion of tape recording which occurred before officer informed defendant of its existence was nonprejudicial. State v. Cooney, 36 Or App 217, 584 P2d 329 (1978)

Motion to challenge admissibility of conversation intercepted under ORS 165.540 must be made in writing. State v. Rodriguez, 115 Or App 281, 840 P2d 711 (1992)

Evidence of contents of bodywire recording obtained in compliance with ORS 165.540 is admissible. State v. Casteel, 122 Or App 218, 857 P2d 204 (1993)

ORS 165.540 provision allowing police to obtain certain conversations upon existence of probable cause or exigent circumstances does not make conversations obtained without court order admissible. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000)

Suppression of contents of intercepted oral communication does not require suppression of contents of same communication obtained by means other than interception. State v. Jones, 339 Or 438, 121 P3d 657 (2005)

41.945

NOTES OF DECISIONS

This section does not incorporate ORCP 55H into criminal proceedings. State v. Gonzalez, 120 Or App 249, 852 P2d 851 (1993), Sup Ct review denied