Ogan v. Ellison

VAN HOOMISSEN, J.,

concurring in part; dissenting in part.

This is an action for breach of contract and fraud. In 1976, plaintiffs bought parcel A from defendants. In 1978, plaintiffs bought contiguous parcel B from defendants. Plaintiffs allege that defendants impliedly represented that the two parcels were legally partitioned, when in fact they were not. They allege further that the value of the parcels is less because they are not legally partitioned.

Viewing the record in the light most favorable to plaintiffs, I would hold that there are genuine issues of material fact that should have been submitted to the trier of fact. Whether a contract contains an implied promise is ordinarily a question of fact. A reasonable person could find that the implied promise sought to be enforced here is in fact implicit, viewing the negotiations between the parties as a whole. The record here is not so clear that any reasonable person would determine the issue before the court only for defendants. Plaintiffs’ complaint states a claim that they did not receive what they bargained for. They should be permitted to present their evidence to a trier of fact. See Hodecker v. Butler, 64 Or App 167, 667 P2d 540 (1983).

I agree with the majority that defendants’ contention that plaintiffs’ claims are moot because parcels A and B now comprise one parcel owned by plaintiffs lacks merit.