Denied January 17, 1922.
On Petition for Rehearing.
(203 Pac. 582.)
Denied. 1
Mr. Eugene Ashwill, for the petition.
Mr. J. W. McGolloch and Mr. W. W. Wood, contra.
In Banc.
RAND, J.— The plaintiff asserts in a petition for rehearing that two of the reasons assigned in dismissing plaintiff’s complaint are incorrect and erroneous. As one of these points is in our opinion decisive of the case, we will confine our consideration to that alone.- This proposition1 is stated in the original opinion as follows:
“Again, if everything appearing in the record had been included in a written contract signed by both parties, this suit would fail, because there is no sufficient description of the property to be affected by the contract to be found anywhere therein.”
*113In order to make ourselves clear upon this point, it will be necessary to restate some of the facts upon which that holding was based.
In substance, the complaint alleged that the plaintiff and the defendants entered into an agreement by the terms of which the defendant agreed to convey to the plaintiff eight lots in Ontario, Oregon, in exchange and as part payment for one-half section of land in the State of Montana. The making of the agreement was denied by the defendants. To. establish the issue thus raised, the plaintiff offered in evidence three documents consisting of one telegram and two letters, signed by M. I. Draper, the defendant; and he also testified to what he claimed was agreed to by himself and Draper at Ontario by parol. Other letters signed by Draper were offered but they contain no reference to the Ontario property and therefore, can have no bearing upon this question.
The first of the two letters referred to was written to the plaintiff by Draper at Custer, Montana, and was dated May 29, 1918, and merely stated that he had “some good income property in Ontario, Oregon,” which he would like to trade to the plaintiff for the lands owned by the plaintiff in Montana and that he was going to be at Ontario in a short time and would like to show the property to the plaintiff, who was then at La Grande, Oregon. The plaintiff replied and asked Draper for the price and description of the property. No other communication passed between them until June 13th, when Draper who had gone to Ontario, sent the telegram, copied in the main opinion. Upon its receipt plaintiff went to Ontario, met Draper, saw the property, and as he testified, entered into a parol contract with him. All of the testimony which he gave as to the parol agreement is *114copied in full in the main opinion. No other witness testified concerning the making or. the terms of the parol agreement.
The second letter-referring to the Ontario property is also copied in full in the main opinion. An inspection of the two letters and telegram discloses, that in the first letter Draper refers to his Ontario property in these words “some good income property in Ontario, Oregon.” In the other letter his reference is “Less $3500. Value of my Ontario property,” and “I will guarantee the house I showed you. are the ones I own in Ontario, Oregon. ’ ’ The description given in the telegram is:
“I have four three-room-houses and five lots in one block in the best part of town. One four-room house and two lots in another block.”
In his testimony concerning the terms-of the alleged parol agreement the plaintiff did not mention lots at all, but he testified that he was to receive five cottages in Ontario, Oregon, and a water right covering four of these cottages and the rent of the five cottages from that date. So it will be seen that the only attempt to describe the property which Draper was to convey is to be found in the telegram and the number of lots is there given as seven and not-eight as alleged in the complaint.
So if we assume for the purposes- of this discussion • that the telegram which was sent prior to the time when the parol agreement was made and which it is not claimed was ever accepted by parol or in writing can be used as an aid to take this contract out of the operation of the statute, and if we assume that the phrase to be found in Draper’s letter of August 19th “Less $3500. value of my Ontario property,” with the aid of the telegram fills the requirements of *115the statute, then we have a writing signed by Draper in which he describes the property he is willing to trade as consisting of seven lots, while if we abandon the telegram as a means by which we are to determine the description of Draper’s property, then we have no description at all.
Now it will be noted- in this connection that the suit is to compel Draper upon an alleged contract to convey eight lots and not seven.
Upon the trial the plaintiff offered and introduced in evidence certified copies of two deeds, one from Carlile and wife, conveying to Draper three lots in the town of Ontario, and one from Plughoff and wife, conveying to Draper five lots in Ontario. The defendant. called several witnesses who testified that Draper was in possession of and was at the time engaged in renting the identical lots so conveyed to him by Plughoff and Carlile.
9. As the case stands, it is undisputed that Draper owns and is in possession of eight lots at Ontario, Oregon, and that he never signed any writing in which he referred to the sale of any number of lots, except seven, and there is no evidence of any kind, either in parol or by writing, tending to show that he ever contracted to sell eight lots. Hence if the evidence was held to be sufficient to authorize the enforcement of the alleged contract as the contract which the plaintiff attempted to prove only related to the sale of seven lots, and as the plaintiff has wholly failed to offer any proof which tends to establish what lots constitute the seven lots involved and having proved that the defendant owned eight lots, any seven of which might have been the subject matter of the contract claimed, there is no possible manner in which the court can determine from the evidence to what lots *116the alleged contract referred. While if it should be found that there was a contract for the sale of eight lots instead of seven, then such contract is wholly in parol and within the operation of the statute.
On August 7th a letter to which reference has not been made herein was written by plaintiff to the Custer State Bank,’ stating in effect that the plaintiff was to receive the sum of $6,400 for his half section of land and a deed for eight lots at Ontario. The eight lots are fully described in the letter by numbers and blocks. In defendant’s letter of August 19th above referred to, the defendant complains of plaintiff’s instructions to the bank requiring him to pay $6,400 because of the fact that the acreage of the half section was less than 320 acres. Defendant’s letter refers to the instructions given to the bank by the plaintiff, but does not mention or refer to plaintiff’s letter at all. On July 27th the plaintiff also wrote a letter of instructions to the bank in which he made the same statement as to the amount he was to receive for his land, but containing no description of the Ontario property. There is no evidence that the defendant ever saw either of these letters or knew their contents.
Defendant’s letter of August 19th makes no reference to anything except to plaintiff’s instructions to settle with the defendant upon the basis of $6,400 as the price of the land. This information could have been imparted by the bank, either by telling the defendant the amount he would be required to pay or by showing him the letter of July 27th, or by showing the defendant the letter of August 7th. There is no admission contained in defendant’s letter of August 19th bearing upon the question involved.
*117As this question is decisive of plaintiff’s right to recover, it is unnecessary to allude to any of the other points raised upon the petition for rehearing, and for the reasons stated, the same will he denied, and it is so ordered.
Behearing Denied. Second Petition for Be-hearing Denied.