## Facts

- Charles Burgdorfer held a $2,000 note secured by a mortgage on approximately 64 acres, plus two unsecured notes for $150 and $173.
- Carl Thielemann proposed an exchange: Burgdorfer would transfer the notes and mortgage in return for two lots in the Collins View Tract, which were subject to a $500 mortgage.
- Burgdorfer alleged Thielemann made false, material representations to induce the exchange, including:
  - The lots had a present fair value of $2,400.
  - A tenant had recently offered Thielemann $2,200 for the lots.
  - Thielemann would assume and pay the $500 mortgage and hold Burgdorfer harmless, despite having no intent to perform at the time the promise was made.
  - The mortgage holder was “out of town” and could not be contacted, and Thielemann refused to disclose the mortgagee’s name.
- Burgdorfer alleged he disclosed his limited real-estate experience and lack of knowledge of Collins View property values, stated he would rely on Thielemann’s superior knowledge, and was told no further investigation was necessary.
- At trial, Burgdorfer testified to the representations and the promise to pay the mortgage; Thielemann denied them.
- The jury returned a verdict for Burgdorfer.

## Issues

1. Whether oral testimony about Thielemann’s promise to assume and pay the $500 mortgage was inadmissible under the Statute of Frauds when offered to prove deceit rather than to enforce the promise.
2. Whether the evidence was insufficient as a matter of law to establish actionable fraud, requiring a nonsuit or directed verdict for Thielemann.

## Decision

- The Oregon Supreme Court affirmed the judgment for Burgdorfer.
- The court held the Statute of Frauds did not require exclusion of testimony about an oral promise when the testimony was offered to prove fraud based on a present intent not to perform.
- The court held the evidence was sufficient for the jury to decide whether Thielemann made fraudulent misrepresentations and whether Burgdorfer justifiably relied on them, so denial of nonsuit and directed verdict was proper.

## Legal Principles

- A promise made with a present intention not to perform is a misrepresentation of an existing fact (the promisor’s state of mind) and may support an action for deceit.
- The Statute of Frauds bars enforcement of certain oral agreements but does not bar admission of oral evidence of a fraudulent promise when the claim seeks tort damages for deceit rather than contract enforcement.
- Specific representations about present value and an alleged existing offer may constitute actionable misrepresentations, particularly where the speaker invites reliance based on superior knowledge and discourages independent investigation.
- When evidence supports competing accounts of representations, intent, reliance, and resulting loss, those issues are for the jury, and a verdict supported by evidence will not be set aside on appeal.

## Conclusion

The court upheld a deceit verdict based on evidence that the defendant induced a real-estate exchange through false statements and an oral promise to assume a mortgage made without intent to perform, and it ruled that the Statute of Frauds does not exclude such oral proof when offered to establish fraud rather than to enforce the promise.


Burgdorfer v. Thielemann, 153 Or. 354, 55 P.2d 1122 (Or. 1936)