Glaser v. Haskin
| Decision Date | 29 December 1928 |
| Parties | GLASER v. HASKIN. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge.
Action by F. T. Glaser against Dale M. Haskin. From a judgment for plaintiff, defendant appeals. Affirmed.
This is an action for damages for the breach of a warranty of certain foxes. The cause was tried to the court and a jury, and a verdict rendered in favor of plaintiff. From a resulting judgment, defendant appeals.
Plaintiff is a breeder and a dealer in silver black foxes at Jefferson Or., and the defendant is in the same business at Hood River. On September 26, 1924, plaintiff and defendant entered into a contract for the sale of five pair of foxes by defendant to the plaintiff.
The contract provided that the foxes were to be standard bred advanced, registered quality silver fox, Dalton-Tuplin strains, and also one-half interest in a pair of such foxes to be selected at ranch for the breeding season of 1925, for which plaintiff promised to pay defendant the sum of $6,750. A portion of the price was paid in cash and notes given by plaintiff to the defendant for the balance. The notes were subsequently paid, except a note for $2,482. When the time arrived for delivery under the original contract, a controversy arose between the parties over the foxes to be delivered. As a result, plaintiff brought an action against defendant in the circuit court for Hood River county.
The parties met at Jefferson, and, after negotiations, settled the controversy, and on January 22, 1926, embodied this settlement in writing. The principal parts involved in this action are as follows:
This contract for settlement was signed by both parties.
Pursuant to terms of the settlement, plaintiff accepted certain foxes delivered to him at Jefferson, Marion county, Or. In January 1927, plaintiff brought the present action for $4,275 because of the defendant's breach of his guarantee contained in the settlement contract alleging that (1) of the eleven pups that were produced only five passed registration and (2) that three of the old foxes had "gone sampson" (i. e., lost their guard fur), and (3) that defendant waived the giving of a new note.
The answer defends (first) averring a tender of other young foxes in replacement of those not eligible to registration; and (second) denying the sampson condition of the three old foxes; and (third) denying the waiver of the new note provision, and alleging that, because of plaintiff's breach of the contract by not giving the new note provided for therein, defendant had rescinded the contract. The trial resulted in a judgment in favor of plaintiff for $3,150.
George R. Wilbur, of Hood River, for appellant.
W. C. Winslow, of Salem, for respondent.
BEAN, J. (after stating the facts as above).
In the first answer to plaintiff's complaint, defendant set forth as a counterclaim the note of plaintiff given defendant for the sum of $2,482. Afterward an amended answer was filed with the counterclaim omitted. Plaintiff introduced the original answer in evidence. This was done over the objection and exception of defendant.
The main contention of defendant is that plaintiff cannot enforce the settlement contract, for the reason that plaintiff did not give or tender a new note in place of the old note of his to defendant for the sum of $2,482, "without interest at rate of no per cent. per annum until paid" due October 1, 1925.
The agreement in regard to a new note mentioned in the settlement contract set forth above may as well be considered in plaintiff's favor as for defendant's benefit. While it is in very general terms, it suggests an extension of time for payment which is usually for the benefit of the payor. Defendant claims that he desired a new note not overdue so that it would be better collateral security at a bank. At the time the settlement contract was made, the note of plaintiff for $2,482 was in a bank at Newberg, Or., as collateral security for defendant. Some time after the settlement of the first action, a form of note was presented by defendant to plaintiff for his signature to be in lieu of the old note. This was dated back to January 22, 1926, due December 1, 1926, and provided for "interest after maturity at the rate of 8 per cent. per annum until paid." Another form of note was also presented to plaintiff by the bank. Neither of the notes proffered to plaintiff for his signature conformed to the old note, in that each of them provided for interest after maturity at the rate of 8 per cent. per annum. Defendant, in his brief, suggests that, under the agreement, "the presumption would be that the parties intended the new note to be similar * * * to the original," except as to the due date. The clause in the contract provides that Haskin agrees to take a new note "without interest." Plaintiff admits his liability on the old note, and states in his brief that "appellant can have credit on his judgment for this note without further litigation" as disclosed by the pleadings before defendant filed his amended answer.
Plaintiff suggested and wrote an indorsement on one of the forms of notes making the note subject to the guaranties and conditions contained in the settlement contract which the defendant would not accept, and the parties failed to agree upon the terms of a new note. Under these circumstances, after a discussion of the matter, the testimony of plaintiff shows as follows:
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Haskin v. Glaser
...The trial resulted in a judgment in favor of Glaser for $3,150. Upon appeal to this court, said judgment was affirmed. Glaser v. Haskin, 127 Or. 523, 272 P. 890. mandate was received by the clerk of Hood River county on the 21st day of January, 1929. On the 23d day of August, 1929, executio......
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