Crown Cycle Co. v. Brown

• Decision Date: 08 April 1901
• Parties: CROWN CYCLE CO. v. BROWN.
• Court: Oregon Supreme Court

64 P. 451

39 Or. 285

CROWN CYCLE CO. v. BROWN.

Supreme Court of Oregon

April 8, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.

Action by Crown Cycle Company against Sherman D. Brown to recover the value of goods sold and delivered to defendant. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Arthur C. Emmons and Geo. J. Cameron, for appellant.

G.C. Mosier, for respondent.

WOLVERTON J.

The amended complaint herein, omitting formal allegations, runs as follows: "That on or about the 1st day of March 1896, the plaintiff, at the special instance and request of the defendant, sold and delivered to defendant certain goods wares, and merchandise, of the reasonable value of $12,234." The answer denies that the plaintiff sold or delivered to the defendant any goods, wares, or merchandise whatever, except under a special contract of purchase and sale between them, which provided for the payment of a stipulated price at a time certain, which had not elapsed at the commencement of the action. It is further alleged that the goods, wares, and merchandise mentioned in the complaint consist of three lots of bicycles, which were purchased by the defendant from the plaintiff under a special contract as to price, terms, and time of payment; and that, in pursuance of the terms of the contract, the defendant executed and delivered to the plaintiff, as and for the whole of the purchase price of said bicycles, certain bills of exchange which were received and accepted by plaintiff, and are still held and retained by it. The plaintiff replied that the goods were procured and said contract was induced through the fraudulent and deceitful representations of the defendant as to the condition of his credit; that the said bills of exchange were taken and accepted under those conditions, and are wholly worthless. There was a demurrer interposed to the reply, and a motion to strike out the affirmative averment, which were both overruled. The verdict and judgment being in favor of the plaintiff, the defendant appeals.

The complaint is criticised as not stating a cause of action, but it is deemed sufficient, especially as the criticism comes after verdict. Nicolai v. Krimbel, 29 Or. 76, 84, 43 P. 865.

The defendant next urges that the reply constitutes a departure from the ground taken in plaintiff's first pleading. The complaint is in assumpsit for goods sold and delivered on a quantum valebat. The answer pleads, in avoidance of that form of action, a specific contract, and that the time for which credit was accorded under it had not expired. The purpose of the reply is to show that the special contract was a nullity because induced by fraud, and that the defendant, by reason thereof, was not entitled to the credit given him, and thus to overcome or avoid the defense relied upon. This does not state a new cause of action. True, the plaintiff might have anticipated the defense interposed, and stated the fraud attending the transaction in his complaint, but the more logical method was adopted, to simply state its cause of action on an implied contract, and await the movement of its adversary, and, when the specific contract was interposed, then to show that, by reason of the fraud practiced in its procurement, it was ineffectual for the purpose designed by the pleader. The reply does not quit or depart from the complaint, and state a different cause, nor is anything it contains inconsistent with the cause there stated. The defendant seeks to destroy the plaintiff's right of action by setting up this specific contract, and the reply avoids it, and thus is put upon the record a perfectly logical procedure. The reply may be said to fortify the cause, but it goes no further, and cannot be termed a departure. Mayes v. Stephens (Or.) 63 P. 760; Cederson v. Navigation Co. (Or.) 63 P. 763; Rosby v. Railway Co., 37 Minn. 171, 33 N.W. 698; Shillito Co. v. McClung (C.C.) 45 F. 778; Insurance Co. v. Nexsen, 84 Ind. 347; Ankeny v. Clark, 148 U.S. 345, 13 Sup.Ct. 617, 37 L.Ed. 475.

The most important question attending this controversy is whether the plaintiff can waive the tort and sue in assumpsit for goods sold on a quantum valebat. Upon this question the authorities are in hopeless conflict, and we will make no attempt to reconcile or distinguish them. The action is for the reasonable value of the bicycles, not for an agreed price, so that there is no attempt to sue upon the contract which it is alleged was fraudulently obtained, or to adopt any of its terms as controlling in any particular or binding upon the parties to the action. Fraud having vitiated the contract, and rendered it voidable, at the election of the plaintiff, it had proceeded by an action in no wise adapted to its enforcement, and thereby it would seem to logically follow that it has proceeded in its disaffirmance. At any rate, the action which it has employed is wholly inconsistent with the existence of the specific contract, so that it cannot be said that by suing in assumpsit it has affirmed any contract that it may have had with the defendant, except the one which may be implied from the acts of the parties. In a leading case upon the subject ( Roth v. Palmer, 27 Barb. 652, 656), Hogeboom, J., discussing the effect of the waiver of the tort, says: "Does it restore the express contract which has been repudiated for the fraud, or does it leave the parties in the same condition as if...