The opinion
SLOAN, J.,
dissenting.
The original decision of this court was correct. This is not said because of any tenacious or stubborn desire to cling to my former opinion. It is simply a continuing view that the evidence does not establish a mutual mistake. The defendants alleged, and vigorously argued, that an oral contract was consummated on September 14,1950. The majority appears to accept this contention. However, the letters set forth in the majority opinion, and heavily relied on, clearly demonstrate that the precise terms of a contract were not agreed to on that date. In fact the letters further demonstrate that the terms were not fully concluded and agreed upon at the date of the last letter. To establish reformation it is essential that the precise terms of the contract sought to be enforced are alleged and proved. Lewis v. Lewis, 5 Or 169 . The only actual contract between the parties was the one finally executed.
The evidence established that the plaintiffs dealt with the defendants in good faith throughout the entire transaction and left the determination of the timber to be purchased entirely with the defendants. When they executed the contract they did so in honest belief that the defendants had described the land intended. There was no mistake on their part and no way that the majority can accurately adjudge the evidence and determine otherwise.
*278 The evidence relied on by the majority of the conduct of the parties subsequent to the execution of the contract is evidence of the construction placed upon an ambiguous contract by the parties. It has no bearing or evidentiary value to fix the terms of a prior oral contract. The defendants have not met the test of alleging and proving the complete terms of an enforceable prior agreement.
It should be remembered that this is an action for trespass initiated by the plaintiffs. The issue determined here was upon the equitable affirmative answer of the defendants. The issue of trespass remained undecided. By the former opinion of the court the issue of the proper construction to be placed upon the contract was still undecided. The defendants still had available to them the defense that the description could be construed as contended for by the defendants. In other words, this is not a reformation case. The real issue was and remains the proper construction to be placed upon an ambiguous description. The case should be affirmed and the parties left to contest this real issue. For these reasons I dissent.