Gschwander v. Cort

• Decision Date: 08 November 1890
• Citation: 19 Or. 513,26 P. 621
• Parties: GSCHWANDER v. CORT.
• Court: Oregon Supreme Court

26 P. 621

19 Or. 513

GSCHWANDER v. CORT.

Supreme Court of Oregon

November 8, 1890

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

(Syllabus by the Court.)

Where a defendant demurs to the complaint, which being overruled answers over, and a verdict and judgment are rendered against him, the judgment will not be reversed on objection to the complaint on appeal, though some of its material allegations appeared to be legal conclusions, and the breaches in the writing declared upon were defectively assigned.

Alfred F. Sears, Jr., for appellant.

Alex. Brenstein, for respondent.

STRAHAN C.J.

The meaning of two clauses of the contract have been presented one by defendant and the other by plaintiff. The defendant relies upon this clause of the contract: "In case that the performance of the undersigned should prove incompetent or unsatisfactory to the party of the first part, said party of the first part shall have the right to terminate this contract at any time, and shall not be held liable for any damages for such termination, or for any wages after such termination." The defendant claims that he had a right under this part of the contract, to terminate it when he saw proper to do so, and of that he was made the sole judge by the terms of the contract itself. The plaintiff contends that the foregoing clause is modified by this provision: "The engagement holding good until it has been faithfully fulfilled by the parties of the second part or canceled by the party of the first part for intoxication, vulgarity, or infringement of the rules by the parties of the second part." The rule of construction is that each and every part of a contract must be so construed that all may have effect, if it can be done. Looking at this entire contract, and its manifest object, the first clause may properly be held to refer to the competency of the plaintiff's Tyrolean Warblers, and their ability to give satisfaction to the defendant; and the other clause relates entirely to the personal conduct of the Warblers in and about defendant's theater. The two clauses relate to different subjects, and were inserted for different purposes. The last clause does not in any way limit or affect the first. If the defendant had alleged in his answer that the performance of the Tyrolean Warblers proved incompetent or unsatisfactory to him, and that he terminated the contract for that reason, an altogether different question would have been presented. It would have then become necessary to determine whether or not the contract sued on is within the principle announced in Zaleski v. Clark, 44 Conn. 218; Brown v. Foster, 113 Mass. 136; McCarren v. McNulty, 7 Gray, 139; Railroad Co. v. Inhabitants of Brewer, 67 Me. 295; Manufacturing Co. v. Ellis, 68 Mich. 101, 35 N.W. 841; Gibson v. Cranage, 39 Mich. 49; Hoffman v. Gallagher, 6 Daly, 42; Gray v. Railroad Co., 11 Hun,...