Courtney v. Bridal Veil Box Factory

• Decision Date: 28 December 1909
• Parties: COURTNEY v. BRIDAL VEIL BOX FACTORY et al.
• Court: Oregon Supreme Court

105 P. 896

55 Or. 210

COURTNEY v. BRIDAL VEIL BOX FACTORY et al.

Supreme Court of Oregon

December 28, 1909

Appeal from Circuit Court, Multnomah County; Thos. O'Day, Judge.

Action by A.A. Courtney against the Bridal Veil Box Factory and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The complaint in this action alleges that on the 21st day of January, 1907, plaintiff entered into an oral contract with the defendant Bridal Veil Box Factory, whereby the said defendant promised, within a reasonable time thereafter, to manufacture and deliver to plaintiff 50,000 oil cases of the following dimensions and specifications: "Inside measure 19 1/4X9 5/8X14 1/2. Ends, 7/8 inch, S. 2 S. Sides, 3/8 inch S. 1 S. 2 pcs. T. & B., 3/8 inch, S. 1 S., 1 pc. tops, 1 pc. bottoms. Some 2 pc. bottoms allowed. Ends to be made of fir"--at and for the price of $12 per hundred, f.o.b Martin's Dock, Portland, Or. That about April 23, 1907 the defendant Box Factory sold all its property, including the contract in question, to the defendant Lumbering Company and as a part of the consideration of said sale the Lumbering Company agreed with the other defendant that it would complete and carry out all its agreements, including the contract sued upon. That the defendants have wholly failed to carry out said contract. That during the time defendants had the plaintiff's order for these boxes the market value of the same was $15.62 per hundred cases in Portland, and that plaintiff is damaged in the sum of $1,810. The answer of the defendants deny the execution of the contract sued upon; deny that defendant Lumbering Company took over said contract, or agreed to carry it out; deny that any contracts were ever assumed by the Lumbering Company, except such as were specifically mentioned in its agreement of purchase. Defendants plead the statute of frauds in bar to the alleged oral agreement. Defendants also plead a counterclaim for $1,777.44, which was alleged to be a balance due from plaintiff upon another purchase of merchandise from defendant Box Factory and by it assigned to defendant Lumbering Company. The case was tried by the court without a jury, who found for the plaintiff against the defendant Box Factory, upon the alleged contract, in the sum of $1,810, and allowed defendants' counterclaim to the extent of $1,573.99, giving plaintiff a judgment against the defendant Box Factory in the sum of $236.11. The court further found that the defendant Lumbering Company had not assumed to carry out the contract sued upon, and gave it a judgment for costs. From this judgment, both defendants appeal.

Geo. W. Stapleton (Coovert & Stapleton, on the brief), for appellants.

S.C. Spencer (Walter H. Evans and Spencer & Farrell, on the brief), for respondent.

McBRIDE J. (after stating the facts as above).

Several questions of fact are discussed in the brief; but, as the evidence upon them was contradictory, we must accept the findings of the court below, even if we entertained the opinion that a different conclusion should have been reached. Though tried by the court without a jury, yet, being a law action, the same rule must govern us in considering the findings made in the court below that would apply to a verdict by a jury. B. & C. Comp. § 159; Hallock v. Portland, 8 Or. 29. The contract sued upon was oral; and, if it is a contract for the sale of chattels, it is within the statute of frauds, and therefore void. If, on the other hand, it is to be construed as a contract to manufacture specific articles upon the special order of the purchaser, and upon specifications furnished by him, and not for the general market, then the contract is not within said statute. There is probably no subject of judicial discussion which exhibits such a contrariety of opinion as the question now before us for decision. In England the tendency of the courts is to treat all contracts for the purchase of articles not in existence, but to be afterwards manufactured, as a sale of chattels, and within the statute. In Lee v. Griffin, 1 B. & S. 272, it was even held that a contract by a dentist to make a set of artificial teeth was a contract for the sale of goods, and was void because not in writing. In New York the rule is that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put into a condition to be delivered, is not a contract for the sale of goods within the meaning of the statute. In Massachusetts a third rule is announced, to the effect that a contract for the sale of articles then existing, or such as the vendor in the ordinary course manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods to which the statute applies. But if the goods are to be manufactured upon a special order, and not for the general market, then the agreement does not amount to a contract for the sale of goods so as to come within the statute. The three rules of construction above noted, with a full citation of authorities supporting each, are discussed in the able opinion of Mr. Justice Bean in Hientz v. Burkhard, 29 Or. 55, 43 P. 866, 31 L.R.A. 508, 54 Am.St.Rep. 777, which has become a leading case on this subject. While the learned justice in that particular case did not indicate choice between the rules laid down by the New York and the Massachusetts courts, we are of the opinion that, while the application of the latter rule, or indeed of any fixed rule, is difficult in many cases, it affords a better and fairer test of the applicability of the statute, in the great majority of instances, than either of the others. Indeed the English rule is expressly repudiated in the case of Hientz v. Burkhard. We will now proceed to apply the rule that prevails in Massachusetts and in the majority of the United States jurisdictions to the facts found in this case, bearing in mind that this court has no power to weigh contradictory testimony, if in the record there is found any testimony upon which a particular finding might reasonably have been predicated. Hallock v. Portland, supra; Hicklin v. McClear, 18 Or. 137, 22 P. 1057; Hughes v. Holman, 23 Or. 481, 32 P. 298; Liebe v. Nicolai, 30 Or. 364, 48 P. 172.

The first assignment of error attacks finding No. 3, for the alleged reason that the testimony was insufficient to support a finding to the effect that a contract to manufacture and deliver to plaintiff 50,000 oil cases, of specified dimensions and construction, was entered into between plaintiff and defen...