Action
by A.F. Backhaus against F.W. Buells and others. From a
judgment in favor of defendants, plaintiff appeals. Affirmed.
This
action was begun November 5, 1902, by A.F. Backhaus against
F.W. Buells, J. Wolford, and Archie Wolford, partners as J
Wolford & Co., Wm. Brown and others unknown, partners as Wm
Brown & Co., to recover the possession of 44 bales of hops
weighing 9,884 pounds, or $2,423, the value thereof, in case
delivery could not be had, and $1,500 for the alleged
wrongful detention of the same. The cause of action had its
inception in the following contract:
"This
Instrument, Made and entered into this 17th day of March
1902, between F.W. Buells, by occupation a farmer, of the
County of Marion, State of Oregon, the party of the first
part, and A.F. Backhaus or Agt. party of the second part:
"Witnesseth
That party of the first part does hereby agree to raise and
sell, and does hereby sell and agree to deliver to said
party of the second part his successors or assigns (10,000)
pounds (net) of hops crop of hops now being, standing,
growing or to be grown on farm owned by F.W. Buells,
situate about 3 miles east of Silverton, County of Marion,
State of Oregon, and consisting of 54 acres more or less,
on which land there is now growing, or under cultivation 9
1/2 acres of hops, and described as follows:
"Bounded
by lands owned or possessed by the following named
persons: On the north by D. Leonard, on the east by A.
Wolf, on the south by Coolidge & McClain, on the west by
Tucker; said hops to be the growth of the year 1902, and
to be choice quality, sound condition, bright uniform
color, fully matured, free from mould and from damage by
vermin, cleanly picked, well dried and cured, and put up
in good merchantable order and condition, in new 24-ounce
bale cloth, in bales of 185 to 200 lbs. each, gross
weight (tare 7 pounds per bale). The said hops not to be
the production of the first year's planting. All of
said hops to be delivered to said party of the second
part, his successors or assigns, in entire lot f.o.b.
cars at Silverton, between Oct. first and October 30.
"The
party of the first part agrees to serve notice in writing
upon the party of the second part at least 10 days before
the day on which he proposes to tender delivery of said
hops; but said notice shall not be sent until the entire
lot is actually in bale and ready for delivery. And the
said party of the first part further agrees that this
contract has preference, both as to quality and quantity,
over all other contracts made hereafter by persons in
relation to said hops, and that the party of the second
part may at any time, and until the full performance of
this agreement, have free access to the above-described
premises or any other premises where such hops may be.
"The
party of the second part agrees to pay the party of the
first part, by checks, at the rate of (12) cents per pound
therefor, in the manner following to wit: One (1.00)
Dollars, at the time of signing hereof, the receipt whereof
is hereby acknowledged, and that to enable the party of the
first part to harvest said crop and prepare the same for
market in the manner in which the party of the first part
agrees to harvest and prepare the same will advance and
loan to the party of the first part at or during picking
time, as the same may be actually required to defray
expenses of picking such hops, and of harvesting and curing
the same, and for such purposes only, not exceeding,
however, 5 cents for each pound of hops which may be grown
on said lands, and which are by his agreement to them
bargained and sold, and not exceeding $500, in all and the
balance when said hops are delivered and accepted.
"If
the quality of said hops shall be inferior to hops above
called for, the said party shall have the privilege of
taking them, and reduction shall be made in price equal to
the difference in value between such hops and those above
called for.
"It
is expressly understood and agreed that advances are to be
made only, if in the judgment of the party of the second
part, the hop crop is in a condition that hops of the
quality as above stipulated can be delivered.
"And
the party of the first part hereby conveys and mortgages to
the party of the second part, his successors or assigns,
all the crop of hops grown or to be grown on the premises
hereinbefore described during the year 1902, as security
for the payment of all advances and loans, which shall not
exceed in the aggregate $500 and interest thereon, made
hereunder, and as security for the faithful performance on
the part of said party of the first part of the foregoing
obligations, and of all agreements and covenants on the
part of said party of the first part hereinbefore
mentioned, and as security for the payment of any damages
said second party his successors or assigns may sustain by
reason of any failure on the part of said party of the
first part to faithfully perform and carry out the
agreements, covenants and obligations hereinbefore set
forth and mentioned; and also all other obligations
existing or that may be entered into by the parties hereto
during the life of this contract.
"Any
insurance on said hops shall be for the benefit of said
second party, and said second party may keep the hops insured
for their full value from the time said hops are picked until
delivery, at the expense of said first party, and deduct the
expense of insurance from purchase price above agreed.
"In
Witness Whereof, the parties have hereunto set their hands
and seals the day and year first above mentioned.
"F.W.
Buells. [ Seal.]
"A.F.
Backhaus. [ Seal.]
"By
T.E. Blakely. [ Seal.]
"Executed
in the presence of:
"G.W.
Dolan,
"J.K.
Buff.
"State
of Oregon, County of Marion--ss.: On this 17th day of
March, A.D.1902, personally came before me G.W. Nolan, a
Notary Public in and for said County, the within named
F.W. Buells to me personally known to be the identical
person described in, and who executed the within
instrument and acknowledged to me that he executed the
same freely for the uses and purposes therein named.
Witness my hand and seal this 17th day of March,
A.D.1902. G.W. Dolan, Notary Public for Oregon. [
Notarial Seal.]
"State
of Oregon, County of Marion--ss.: I, F.W. Buells, being
first duly sworn, on oath depose and say that the
foregoing instrument is made in good faith, and without
any design to hinder, delay or defraud creditors, and
that the said crop of hops in the within instrument
described, is the property of affiant, and is not
encumbered except as to the within instrument. F.W.
Buells.
"Taken,
sworn to and subscribed before me G.W. Dolan, a Notary
Public in and for said County and State this 17th day of
March, 1902. G.W. Dolan, Notary Public for Oregon. [
Notarial Seal.]"
The
hops grown by Buells on said land in 1902 not having been
delivered as provided for in the contract, this action was
commenced, the complaint being in the usual form; and
thereafter, the plaintiff having made the proper affidavit
and given the necessary undertaking, the sheriff of said
county took possession of the hops and delivered them to the
plaintiff, who shipped them out of the state. The answer of
Buells and Wm. Brown, doing business as Wm. Brown & Co.
having denied the material allegations of the complaint,
averred, for a first separate defense, that Buells was the
owner of the hops, which were of the value of $3,000, and
that he was in the possession thereof until they were
wrongfully taken from him by the sheriff at plaintiff's
instance, whereby he had been damaged in the sum of $1,000,
and that the defendant J. Wolford, doing business as J.
Wolford & Co., was a warehouseman with whom the hops had been
stored, but that he had no interest therein. For a second
defense, it is alleged that Buells entered into an executory
contract of sale, by the terms of which plaintiff agreed to
advance and loan him during the picking season such sums of
money as he might need to defray the expense of harvesting
the crop, not exceeding 5 cents per pound; that after
commencing to pick the hops he required money for that
purpose, and so informed the plaintiff, who notified him that
he would not advance any sum therefor, whereupon the contract
was by mutual consent rescinded, and Buells tendered to
plaintiff $1, the amount received by him on account of the
contract, and interest thereon, but, the plaintiff refusing
to accept the same, the money was deposited with the clerk
for him. For a further defense it is alleged that Brown & Co.
never had any interest in or possession of said hops, and
disclaimed all right thereto. The answer demands judgment for
Buells in the sum of $3,000, the alleged value of the hops,
and $1,000 as damages for their detention. The reply, having
denied the material allegations of the answer, avers that the
hops were not a choice quality or cleanly picked, but were,
by Buells' direction, gathered with leaves and stems,
notwithstanding which plaintiff elected to take them and to
pay therefor the contract price, and so notified Buells, who
refused to deliver them and repudiated the contract. The
reply admits that Buells tendered $1.10 to plaintiff, but
further avers that the latter's special agent, T.E.
Blakely, advanced to Buells on account of the hops $8 April
8, 1902, and $10 June 30th of that year, no part of which
sums has been repaid or tendered; that plaintiff fully
performed his part of the contract, and tendered $1,200, the
purchase price of the hops, to Buells, who having refused to
accept the same, said sum was deposited with the clerk for
him. A trial...
