Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-29
an estOppeI. A mere waiver is not


Of the contract make the forfeiture
part of the contract. and a failure
to pay within the time limited causes
the forfeiture, and the contract is
self executing in creating the forfeit
ture."
We think this case comes clearly
within the rule stated in these au-
thorities, and the forfeiture clause is
self-executing. AS this is the only
question presented for our consider
alton it must be decided against
plaintiff. Judgment is affirmed.
Mossie Va Cyrus, Marion County.
Decided, December 10, 1911.
Eber D. Mossie. appellant, V. Mary
Cyrus, respondent Appeal from Mar
ion county. The Hon. VIM. Galloway
judge. Argued and submitted Dec. 5,
1911. VIM. P. Lord and W. G. Wins
low, for appellant. A. o. Condit and
Geo. G. Bingham, for respondent
Eaxin, C. ]. Affirmed.
Eakin, C. ]. This is suit for
specific performance of an agree
ment for the sale Of land. The men,
orandum OF the agreement is as fol-
lows:
Sisters, Ore, June 20, 1908.
"Witnesseth:
THAT /, Mary Cyrus, do hereby
covenant and agree to sell to Osburn
Edwards and Eber D. Mossie, or
either of them, the following de-
scribed real property, torwit: Thirty
lots, now belonging to me, situated
in Brooklyn Addition, in the city of
Salem, county Of Marion, state of
Oregon, for the consideration of sew
en- hundred dollars ($7OO), the receipt
of forty-fve dollars ($45) of which
is hereby acknowledged. / also agree
to give abstract of title and warranty
deed to said lands
Witness my hand and seal.
Witnesses: MARY CYRUS (SeaD
IN. R. NERLL,
"J. B. Adams"
1t is alleged in the complaint that
on August 23, 1908, defendant at
tempted to with draw from and annul
the contract, and duly notified plain
tiff of such withdrawal; that on May
Z, 1909, plaintiff duly rendered the
purchase price to defendant and de-
manded a conveyance of the property
to him. Defendant admits the sign
ing of the writing and that she re-
fused to convey the property to
plaintiff, but denies the other allega-
lions of the complaint.
Although the complaint alleges
that the defendant entered into an
agreement whereby plaintiff agreed
to buy and defendant to sell the lots
Of which they writing is the evidence,
the writing Is not such memoran-
dunn of an agreement as will answer
the requirements of the statute of
frauds. Such memorandum must
contain all the essential terms of the
contract 1t must be definite in re-
spect to the intention of the parties;
who they are, and their relation one
to the other; who is the seller and
who is the buyer. See note to Ruzic-
ka v. Hotcvy, az Neb $500 in A.
& e. A. G. 1060-4. We need but to
read the memorandum to see that 1t
is not a memorandum of an agree
ment of sale. The defendant agrees
to sell to Edwards and Mossie or
either of them, thus indicating that
there is no purchaser, but the offer
was open to both or either. Themost
that can be claimed for the memoir
andum Is, that It was an offer by lie
fendant to sell at certain price
There being no tine fixed in which
the offer might be accepted, 1t would
remain open reasonable time or un-
Ill withdrawn. If considered as an
option the effect is the same, unless
there was a consideration for the op-,
tion, and the evidence discloses that
there was none. If the offer had
been accepted within a reasonable
time, and before withdrawn, the
price of the lots-$700- would have
constituted the consideration and
have completed the contract. The
$45 mentioned in the offer was re-
ceived as part of the price only and
not as consideration for the option.
See Friendly V, Elwert, 81 Or. 500.
The seal affixed to the signature is
only prima faeie evidence of consld-
GRAFTON: 0lston v, Q w. P, Co. So Or.
397, S4S. On the other hand, conced-
ing that the writing is an option
given upon a consideration, no time
for acceptance is provided; therefore
II must have been accepted within a
reasonable time 9 Cyc 291, Gil; 20
A. & E. Enc. 600; Stone v. Harmon,
10