MURRAY v. JOHNSON, 86 Or. App. 295 (1987)

738 P.2d 1005

16303; CA A40332Oregon Court of Appeals.Argued and submitted June 1, 1987.
Affirmed as modified July 8, 1987.

Appeal from the Circuit Court, Wasco County, Warner V. Wasley, Judge Pro Tempore.

John F. Cushman, Hood River, argued the cause and filed the briefs for appellant — cross-respondent.

Arthur Knauss, Milwaukie, argued the cause and filed the brief for respondent — cross-appellant.

Before Warden, Presiding Judge, and Van Hoomissen and Rossman, Judges.

WARDEN, P. J.

Judgment modified to delete award of $6,000 for Mosca well; affirmed as modified on appeal and cross-appeal.

Page 296

Page 297

WARDEN, P. J.

In this action for dissolution of a partnership and an accounting, defendant appeals from a judgment entered on the basis of evidence from an appraisal stipulated to by the parties, and plaintiff cross-appeals. We modify in part on the appeal and affirm on the cross-appeal.

Plaintiff and defendant entered into a joint venture to purchase, subdivide and sell a tract of real property. Defendant was the managing partner. Plaintiff sued to dissolve the partnership and to require defendant to account as to partnership affairs.

The matter first came to trial on September 22, 1982. At that time, the parties entered into a stipulation in open court. They agreed on the relative interests that each party held in the partnership and how their dispute was to be resolved.[1] After several attempts by defendant to set aside the stipulation and the appraisals made thereunder, the trial court entered judgment for plaintiff on the basis of the appraisers’ report. Plaintiff was also awarded $6,000 for a water well that he had drilled on the Mosca parcel (the Mosca well). Defendant assigns as errors the admission in evidence of the report of the appraisers and the award for the Mosca well. We review de novo.
ORS 19.125(3); Wright v. Ogle, 283 Or. 505, 507, 584 P.2d 737
(1978); Roesch v. Wachter, 48 Or. App. 893, 895, 618 P.2d 448
(1980).

A stipulation agreed to in open court “is a contract and cannot be set aside except on grounds adequate to justify the rescission of a contract.” Kleiner v. Randall, 58 Or. App. 126, 131, 647 P.2d 956 (1982); see Westfall v. Wilson, 255 Or. 428, 431, 467 P.2d 966 (1970). To set aside such a stipulation requires a showing of fraud, mutual mistake or the actual absence of consent. Westfall v. Wilson, supra. Here, defendant

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stipulated in open court, on the advice of counsel and after careful discussion with the court as to the contents of the stipulation. We conclude that there was no absence of consent or mutual mistake, and defendant presented no evidence of fraud. The trial court did not err in admitting in evidence the report which the appraisers made pursuant to the parties’ stipulation or in entering judgment for plaintiff on the basis of that evidence.[2]

Defendant contends that the trial court erred in awarding plaintiff $6,000 for the Mosca well. We agree. The only evidence concerning the well is Exhibit 3, which states that the amount due for the Mosca well was “shown as a liability of the joint venture.” Because there was no evidence indicating that the cost of that well was a personal obligation of defendant, we delete that portion of the judgment.

We have considered the issues raised by plaintiff on cross-appeal, and they have no merit.

Judgment modified to delete award of $6,000 for Mosca well; affirmed as modified on appeal and cross-appeal.

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