GREENE v. LONDBERG, 65 Or. App. 279 (1983)

671 P.2d 119

GREENE, Appellant, v. LONDBERG et al, Respondents,

A8002-00945; CA A28508Oregon Court of Appeals.Submitted on record and briefs September 22, 1983
Reversed and remanded November 2, 1983

Appeal from Circuit Court, Multnomah County.

Alan F. Davis, Judge.

Robert L. Kirkman, Carlton D. Warren and Warren, Kirkman
Allen, Portland, filed the briefs for appellant.

Dale M. Hermann, Portland, filed the brief for respondents.

Before Gillette, Presiding Judge, and Warden and Young, Judges.

PER CURIAM

Reversed and remanded.

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PER CURIAM

This was a proceeding to foreclose a contract for the sale of commercial property. The trial court’s decree denied plaintiff’s prayer and, in essence, reformed the contract. Plaintiff appeals, raising several assignments of error. We reach only one: under circumstances whose recitation would not benefit bench or bar, the trial court precipitously closed off the presentation of evidence. That was error. Both parties should have been permitted to present their cases. Unfortunately, these circumstances also defeat this court’s normal ability, on an appeal from a decree in equity, to try the case de novo on the record. Therefore, and despite our dislike of doing so, see Sands and Sands, 59 Or. App. 653, 651 P.2d 1387 (1982), rev’d on other grounds, 295 Or. 443, 666 P.2d 834, on remand 64 Or. App. 570, 669 P.2d 358 (1983), we are compelled in this case to remand the matter for a new trial.

Reversed and remanded.[1]

[1] In another assignment of error, plaintiff argues that no issue of his waiver of strict compliance by defendants with the contract is framed by the pleadings. To assist at retrial we note that, as we view them, the pleadings embrace that theory.

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