Gove v. Island City Mercantile & Mill. Co.

• Decision Date: 29 February 1888
• Citation: 16 Or. 93,17 P. 740
• Parties: GOVE et al. v. ISLAND CITY MERCANTILE & MILLING CO.
• Court: Oregon Supreme Court

17 P. 740

16 Or. 93

GOVE et al. v. ISLAND CITY MERCANTILE & MILLING CO.

Supreme Court of Oregon

February 29, 1888

Appeal from circuit court, Union county.

Rufus Mallory and R. Eakin, for appellants.

Baker Shelton & Baker, T.H. Crawford, and Ramsey &amp Bingham, for respondents.

THAYER J.

It appears from the bill of exceptions herein that the respondents were contractors and builders, engaged in furnishing and putting up what is known as the "Roller Process" for manufacturing flour. The appellants had a flouring-mill at Island City, Union county, Or., and were engaged in operating it. The mill was the old-style "Burr Process;" was run by water-power, the water being conducted in a ditch to the mill from the Grand Ronde river. The respondents, about the last of May or first of June, 1886, visited the appellants at their mill, and after examining it, and the water-power by which it was run prepared and delivered to appellants a written proposition of which the following is the substance:

"We hereby agree to furnish you the following specified machinery and furnishings for your flour-mill at Island City, in the county of Union and state of Oregon, to-wit: [Here follows description of articles.] To set up and connect machinery inside of the mill-house and elevator. The following old machinery, said to be in good repair and condition, fit for use, to-wit: One thirty and a half inch Leffel wheel, one Eureka lengthened scourer, together with all old machinery, belting, and material that is good and suitable, now in the mill, and owned by you,--is to be used in connection with the new machinery furnished by us in the construction of the mill. We are to perform all the mill-wright labor necessary to set up and connect said machinery, build the necessary elevators and spoutings, and connect said machinery to the main power-shaft by belt, and place the whole in good running order, and construct the required wheat, flour, and offal bins, etc. We to raise the roof, and inclose the same, putting in the necessary windows, etc. And the mill-wright work is to be done in a thoroughly workman-like manner and substantial manner. No material to be furnished for, or repairs to be made by us upon, the building, except to raise roof to accommodate the machinery. We agree that the machinery and material furnished by us shall be first class of its kind, and suitable for the purpose used. We are to make all necessary plans for the mill; and, when the mill is constructed according to said plans, we guaranty that it shall have a capacity of sixty barrels of flour in twenty-four hours' time; and that the mill, when it is completed, shall be capable of making as good flour, and as much flour per bushel of wheat, as any mill in eastern Oregon, when grinding the same kind of wheat. The mill to be under our control until it is accepted by you. You to furnish wheat, and bear all expenses of operating the mill from the time of starting it; and, when our guaranty is fulfilled, then you are to immediately accept the mill. We agree to furnish and construct as specified for the sum of eight thousand one hundred and thirty-four dollars and twenty-five hundreths, ($8,134.25,) to be paid by you as hereinafter provided. We agree to prosecute the work as fast as is reasonable, and to have the mill completed ready to run by September 10, 1886, unless prevented by circumstances over which we have no control; and that after the mill is started up, if any changes or alterations are necessary to make it fill the guaranty, by reason of any failure on our part, such changes shall be made at our expense. Should any changes be made at your request or order, the additional costs, if any, over the original amount mentioned, shall be paid by you. The terms of payment are to be as follows: Two hundred dollars in cash upon signing your acceptance of this proposition; three thousand dollars in cash when the specified new machines are delivered; two thousand dollars as called for by us during the process of the work; two thousand nine hundred and thirty-four 25-100 dollars at the time of completion of the mill, and acceptance of the same by you, of the foregoing proposition. We fully bind ourselves to its provisions.

[Signed] "O.C. GOVE & CO."

The appellants accepted said proposition by written acceptance signed by them, and desired the respondents to ship machinery, and perform labor as specified, binding themselves to all its terms and provisions. The action was to recover the last payment specified in the proposition,--the $2,934.25 which was to be made at the time of the completion of the mill, and acceptance thereof; the respondents alleging that they had performed all the conditions of the said contract upon their part. The appellants denied the alleged performance of the contract, and averred the non-completion of the work, and set up a claim to damages for an alleged breach of the guaranty. Several questions were raised at the trial in regard to the construction of the contract, the rights of the appellant under the contract for a violation of its terms by the respondents, and concerning the measure of damages they were entitled to on account of such violation.

The contract is clear and explicit, and, in the light of surrounding circumstances, is easily construed. The respondents proposed to substitute for the process the appellants were using in their mill to manufacture flour a new and improved process, the efficiency of which they especially guarantied. The mill was to be under their control, when constructed, until accepted by the appellants. The latter were to furnish wheat, bear the expense of operating the mill from the time of starting it, and, when the guaranty was fulfilled, were immediately to accept it and were then to make said last payment. The respondents were to demonstrate by a practical test that they had fulfilled their guaranty. The said payment did not mature until that was done; it was a condition precedent to the making of the payment. Glacius v. Black, 50 N.Y. 145. The respondent had no right to demand the $2,934.25 until they had proved by actual trial that the mill had a capacity of 60 barrels of flour in 24 hours' time; and that it was as capable of making as good flour, and as much flour per bushel of wheat, as any mill in eastern Oregon, when grinding the same kind of wheat. This was the respondents' proposition,--the proposition which appellants accepted; thereby making it binding upon both parties. The respondents had no cause of action for the recovery of said payment until they established by proof, not only that they had furnished the material and done the work, but that they had constructed a mill with the capacity to manufacture flour in the quantity and of the quality as expressed in the guaranty. Proof of a substantial performance in the furnishing of the material and constructing the mill would be sufficient. It would not be essential to the maintenance of the action in respect to those matters that there should be an exact performance of the contract in every minute particular; for, as said in 2 Add.Cont. § 864: "Whenever divers acts and things of different degrees of importance are to be done on one side, in return for a stipulated remuneration on the other, a performance of all the things in every...