Freeborn v. Dow

“[T]he doctrine of merger does not categorically apply when [a] deed constitutes only part performance of a preexisting contract.”

Freeborn ("Plaintiff") appealed from a grant of summary judgment in favor of Dow ("Defendant"). Freeborn assigned error to the trial court’s conclusion that the doctrine of merger applied without exception to the case. On appeal, Plaintiff asserted that the doctrine of merger could not apply to subsume a prior agreement because the deed conveyed was not “delivered and accepted as complete performance of [the] contract. . . .” in response, Defendant argued that because the deed was delivered pursuant to the terms of a previous agreement, the deed supersedes the agreement. “[T]he doctrine of merger does not categorically apply when [a] deed constitutes only part performance of a preexisting contract.” The Court reasoned that where a deed does not constitute full performance of an agreement, it necessarily cannot merge with the agreement, because additional performance remains outstanding. The Court found this principle to be well- and long-established in Oregon law. The Court further found that the principle is not limited to terms not affecting title, possession, quantity, or emblements of land. Reversed and remanded.