described as tract 3, in block 8, of Hillsboro Garden Tracts for the price of $1,375, payable in installments. The plaintiff paid $343.75, took possession of the land, and made permanent improvements. On October 16, 1913, she tendered her contract to the defendant, and offered to surrender all her interest in the land and improvements, but the defendant refused to rescind, and then the plaintiff commenced this suit. The complaint charges the defendant with fraud, and alleges that it falsely represented to her that if she would purchase the land, the plaintiff and all other purchasers would immediately have plentiful and lucrative employment; that improved roads and streets would at once be provided in Hillsboro Garden Tracts; that defendant would provide and operate a vegetable car, running from Hillsboro to Portland, thereby providing cheap and efficient transportation for the purchasers of land in the Hillsboro Garden Tracts; that a cannery or preserving plant would immediately be established and operated in Hillsboro, which would provide a place for the ready disposal of all vegetables that might grow; that improved lands around Hillsboro were selling at the price of $1,000 per acre; that potatoes never sold in that part of the country for less than $1.25 per sack; and that the defendant would cause cement walks to be laid in the Garden Tracts, and would improve the streets therein. The defendant denied that it made any misrepresentations, and affirmatively alleged that the plaintiff had been in possession of the premises, had collected the rents and applied them to her own use. A trial resulted in a decree canceling the contract and a judgment against the defendant for $343.75, the amount paid on the purchase price, and the additional

78 Or.-7

sum of $65 to cover the value of the permanent improvements. The defendant appealed. REVERSED.

For appellant there was a brief over the names of Messrs. Huston & Huston, Mr. W. F. Magill and Mr. George W. Stapleton, with oral arguments by Mr. Samuel B. Huston and Mr. Oliver B. Huston.

For respondent there was a brief over the names of Messrs. Thacker & Hancock and Mr. George I. Brooks, with an oral argument by Mr. G. L. Thacker.

MR. JUSTICE HARRIS delivered the opinion of the court.

1. The only evidence relating to the allegation of promised employment is found in the testimony of plaintiff, who said, when referring to the improvement of Division Street, that:

"I was told that they were going to commence it in the fall, and that everybody out there was going to get work on the road."

The allegation that the defendant represented to Martha Henrickson that improved streets and roads would immediately be provided is not referred to by the testimony of any witness except the plaintiff, who said:

"He showed me also the road [Division Street] where the company was going to build, where it was going to be."

When speaking of the value of potatoes, the plaintiff also testified that the selling agent told her that potatoes were worth $1.25 per sack; and there is no other evidence in the record concerning the averment about potatoes, except the evidence of plaintiff to the effect that the crop raised by her was worth only 25 cents per sack. The record is silent upon the remain

ing allegations appearing in the complaint, unless it be claimed that the printed circulars contained representations which relate to the vegetable car, the preserving plant, the value of improved lands around Hillsboro, and the building of cement walks. The plaintiff testified that advertising literature was handed to her, but there is no evidence to indicate that she either read or relied upon any of the printed statements. It clearly appears from the record that the defendant did intend to open and improve Division Street and the corporation actually let a contract for the work; and it is quite apparent from the testimony of plaintiff herself that the statement concerning employment was merely a conclusion or opinion which was predicated upon the contemplated improvement of Division Street. The plaintiff has failed to offer any evidence concerning a portion of the complaint, and the testimony relevant to the remaining allegations only shows mere opinions or predictions, or indicates a promise to do something which the defendant actually intended to do, and therefore the plaintiff is not entitled to relief: Marshall v. Hillsboro Garden Tracts, ante, p. 89 (152 Pac. 493).

2. There is evidence that the defendant made other representations, which are not even mentioned in the complaint, but they cannot be availed of. The plaintiff has not presented a situation, arising out of and confined to the complaint and evidence relevant to the recorded allegations, which will warrant a rescission of the written agreement.

The decree is reversed and the suit is dismissed. REVERSED.

MR. CHIEF JUSTICE MOORE, MR. JUSTICE MCBRIDE and MR. JUSTICE BEAN Concur.

Submitted on briefs October 19, reversed November 9, 1915.

ROBERTS v. LOMBARD.*

(152 Pac. 499.)

Evidence-Parol Evidence Rule.

1. Section 713, L. O. L., declaring that when the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be no evidence of the agreement other than the contents of the writing, except where a mistake is in issue, or the validity of the agreement is in dispute, plaintiff, who entered into a contract for the purchase of land, and received a conveyance, cannot, where neither the memorandum of purchase nor the conveyance referred to restrictions upon the grantor's other property, introduce, in the absence of fraud, evidence of a parol agreement by the grantor that his other property in the vicinity should be subjected to the same building restrictions as that acquired by plaintiff.

[As to parol evidence to add to or vary a writing, see note in 56 Am. St. Rep. 659.]

Frauds, Statute of Authority of Agent-Agreement.

2. Section 804, L. O. L., declares that no estate or interest in land, nor any trust or power concerning such property can be created, transferred or declared except by operation of law, or by a conveyance in writing subscribed by the party or by his lawful agent under written authority, Section 808 provides that agreements for employment of a broker to sell land shall be void unless in writing, and that agreements relating to land shall be void unless in writing signed by the party to be charged or his duly authorized agent whose authority shall be in writing. A written agreement, authorizing an agent to sell land did not empower him to agree to restrictions on the remaining property of the vendor, but in plain terms reserved to the vendor the right to modify the prices, terms and conditions. Held, that as the purchaser was bound at his peril to ascertain the agent's authority, an agreement by the agent that the remaining property of the vendor should be subject to the same restrictions imposed on the property conveyed is void.

[As to necessity that agent have written authority to make memorandum required by statute of frauds, see note in Ann. Cas, 1912B, 1295.]

Covenants Construction.

3. Though a land owner imposed restrictive covenants on most of the parcels sold, that did not show a scheme to generally impose re strictions on all his property, and a grantee who took subject to restrictions cannot enforce similar restrictions against the remaining property of the vendor or against one who purchased without re striction.

*The question of oral or implied building restrictions as to parcels retained by the grantor is discussed in note in 45 L. R. A. (N. S.) 963.

REPORTER.

From Multnomah: JOHN P. KAVANAUGH, Judge. In Banc. Statement by MR. JUSTICE BURNETT. This is a suit by L. D. Roberts against B. M. Lombard, Caroline S. Lombard and D. G. Wilson.

In substance the plaintiff alleges that the defendant Lombard and his wife caused certain property named in the complaint and owned by them to be platted into blocks, lots and streets "with a view to improving said real property by opening the same as an addition to the City of Portland, Multnomah County, Oregon, and converting it into a high-class, exclusive and highly restricted residence addition in and to the said city," which plat they caused to be approved by the proper authorities and recorded. He also says that:

"The Lombards formed and advertised a general plan for the sale of lots, and represented and advertised that the addition would be a highly restricted, exclusive high-class residence district, and," among other things, "that during the period of 20 years after September 9, 1909, no part of the premises should be occupied or used for any shop, store, saloon, hotel or other place of business, and that no part of said addition should be used, or be permitted to be used, for the carrying on of any trade or business whatever, nor for any other than residence purposes."

He further avers that about December 1, 1909, the defendants Lombard, their servants, representatives and selling agents, for the purpose of inducing the plaintiff to purchase a lot in said addition, represented to him that the restrictions already mentioned would be enforced, and that no lots therein had been or would be sold by the Lombards unless the deed contained the same limitations. He says that he relied