Richard E. And Kathie Graber v. Bernice R. And Robert J. Mayem

This is an appeal by Richard E. and Kathie Graber, husband and wife, from a judgment of dismissal of their action brought against Robert J. and Bernice R.. Mayem, husband and wife, following non-jury trial in the District Court.

The facts of the case are set out in detail in the opinion of District Judge Kilkenny, now Judge Kilkenny of this court, reported at 299 F.Supp. 243 (D.Or.1969). They may be summarized as follows: On September 10, 1964, the Mayems gave the Grabers an option to purchase property located in Los Gatos, California. This option described the property as “two acres more or less.” In December, 1964, the Grabers exercised their option and purchased the land for $100,000. The deposit receipt again referred to the property as “two acres more or less.”

In January, 1965, Grabers listed the property for sale for $195,000, and in 1966 they listed it for sale with another broker for $190,000. Between the date of the purchase of the property and the commencement of the action, the Grabers continued to make payments on the contract and leased part of the property to various tenants.

In November, 1966, Mrs. Graber wrote Mrs. Mayem that a recent survey had revealed that…