Coker v. Richey

• Decision Date: 14 March 1922
• Citation: 204 P. 945,104 Or. 14
• Parties: COKER et al. v. RICHEY.
• Court: Oregon Supreme Court

204 P. 945

104 Or. 14

COKER et al. v. RICHEY.

Supreme Court of Oregon

March 14, 1922

In Banc.

Appeal from Circuit Court, Union County; Gilbert W. Phelps, Judge.

On petitions for rehearing. Former opinion (202 P. 551) adhered to, and petitions for rehearing denied.

See also, 204 P. 947.

Cochran & Eberhard, of La Grande, for appellants.

Ivanhoe & Ringo, of La Grande, for respondent.

BURNETT C.J.

The defendant petitioned for a rehearing of this cause, and in support thereof reargues the same question involved in the principal part of the discussion in the opinion already rendered.

Reduced to its lowest terms, the effort of the defendant is to construct a contract entirely different in its terms and obligations from that expressed in the writing which both parties admit they signed. All this is attempted under the disguise of explaining the consideration. It is so thoroughly settled that the consideration subject to explanation is a monetary and not a contractual one that it is unnecessary to enter into an extended re-examination of that matter. It may be remarked that while the contract calls for a sale of "all the pianos, piano players," etc., the effort of the answer is to contradict the plain statement of "all the pianos," and to interpose exceptions to that language. For instance, the answer says in so-called explanation of the consideration:

"That said plaintiff would receive and pay to defendant in cash the actual inventory cost, with freight charges on all pianos and other musical goods then ordered and not yet received by defendant that defendant should desire or ask plaintiff to receive."

And further:

"That defendant was to have the right to receive and resell all goods of every description, commonly known as reverts, that had been previously disposed of by defendant."

All of this outlines the position of the defendant in his answer to be that not all of the goods were sold, but only such as he himself should desire to sell. If such efforts are to be countenanced, it would be child's play to reduce a contract to writing, and would operate as a virtual repeal of section 713, Or.L.

The plaintiff Bellamy attacks the opinion in the feature contained in this excerpt:

"As a preliminary matter, it is objected that the plaintiff Bellamy has no right to rely upon the covenant made by the defendant with the plaintiff Coker, not to engage in business. Such a covenant does not run with the business of dealing in personal property, like covenants run with the title to realty. So long as Coker remains in business, he will have a right to enforce the covenant, but he cannot transfer that privilege to Bellamy. The decree was right in dismissing the suit, so far as it applied to the plaintiff Bellamy."

While the case of Hillman v. Shannahan, 4 Or. 163, 18 Am.Rep. 281, has been so applied as to support the declaration in this paragraph that Coker could not transfer the covenant to Bellamy, and while it is true that the covenant in question does not run with the physical property as covenants of warranty run with land, but is only appurtenant to and protective of the business and good will included in the contract, by the great weight of precedent the true rule is that such a covenant is assignable with a subsequent sale of the business and good will by the original vendee, and that it will pass to the new purchaser as an incident of the latter sale. In brief, the covenant does not run with the tangible chattels kept for sale, so that each buyer, or all or any of them would have a right to restrain the covenantor from again engaging in the business in La Grande. As said in Francisco v. Smith, 143 N.Y. 488, 493, 38 N.E. 980 981:

"Such an agreement is a valuable right in connection with the business it was designed to protect, and, going with the business, it may be assigned, and the assignee may enforce it, just as the assignor could have enforced it, if he had retained the business. * * * The agreement can have no independent existence or vitality aside from the...