Burgdorfer v. Thieleman Or. Sup. Ct,

153 Or. 354, 55 P.2d 1122 (1936)

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Nature of the Case

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Facts

Burgdorfer (P) claims that Thielemann (D) made a false promise and induced him to exchange a note in the principal sum of $2,000, and the mortgage securing it together with two unsecured notes in the respective principal sums of $150 and $173, for lots 3 and 10, block 25, Collins View Tract in Multnomah County, Oregon, upon which there was a mortgage of $500. The mortgage securing the two-thousand-dollar note was upon approximately 64 acres of real property in Clackamas County, Oregon. The representations made by D, were that the Collins View lots had a present fair value of $2,400; that the tenant occupying the same had made D a recent offer of $2,200; and the promise, was that D would assume and pay the five-hundred-dollar mortgage on the Collins View lots and save P harmless therefrom. D also represented to P that the party holding the last-mentioned mortgage, whose name D refused to divulge, was away from the city of Portland and could not be contacted. P claims that the presentations by D were false and fraudulent; that D had no intention at the time of making the said promise, or at any time at all, of performing the promise to P; that D knew that the said representations and promise were false and fraudulent and that he made them in full knowledge of their falsity. D's testimony contradicted P's at all points tending to show fraudulent conduct on D's part. P got the verdict and D appealed contending that the statute of frauds prohibited P's testimony as to D's alleged promise to pay off the mortgage on the Collins View property because that the alleged promise could not have been performed within one year and, therefore, to be enforceable it must have been reduced to writing and signed by the party sought to be charged.