Halvorson v. Blue Mountain Prune Growers Co-op.
| Decision Date | 25 April 1950 |
| Citation | 188 Or. 661,217 P.2d 254 |
| Parties | HALVORSON et al. v. BLUE MOUNTAIN PRUNE GROWERS COOPERATIVE. |
| Court | Oregon Supreme Court |
W. C. Winslow, of Salem, and George H. Corey, of Pendleton, for the petition.
Raley, Kilkenny & Raley, of Pendleton, contra.
Before LUSK, C. J., and BRAND, BAILEY and HAY, JJ.
The respondents have petitioned for a rehearing upon six stated grounds as follows:
'(1) The Court is in error in holding that (page 10 of the opinion) where the right to recover on a building contract depends upon the procurement of an architect's certificate, the builder upon substantial performance of the contract, must sue upon the contract, and it is error to permit him to recover upon the common counts.
'(2) The Court is in error in holding that there was a practical construction placed upon the contract by the parties which required the architect's certificate for final payment.
'(3) The Court is in error in holding that there was no waiver of the contract provision of the procurement of the architect's certificate pleaded nor the procurement thereof pleaded or proven.
'(4) The Court is in error in holding that the evidence herein repels any idea that the owner assented to the accuracy of the contractor's final estimate or statement.
'(5) The Court is in error in holding that both parties understood that the owner would not be liable until the architect's certificate was issued.
'(6) The Court is in error in holding that the owner specifically expressed its lack of assent to the accuracy of the statement by its manager's insistence to the contractor that a check for the balance would be issued only on the basis of the architect's certificate.'
Grounds (1) and (3) relate to statements in our former opinion which need not at this time be further considered because they were unnecessary to the decision of the case. The action was not upon the contract; on the contrary, the plaintiffs, ignoring the contract, sued upon an account stated. The contract entered into the case only because the defendant pleaded and relied upon it, and because the proof showed without contradiction that the parties understood the contract to mean that no liability of the defendant would arise until the architect's certificate should be issued. That being so there was no room for an implication of assent by the defendant to the correctness of the statement rendered by the plaintiffs...
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Shepard & Morse Lumber Co. v. Collins
...of this court, and they were more recently applied in Halvorson v. Blue Mt. Prune Growers Co-op., 188 Or. 661, 673, 674, 214 P.2d 986, 217 P.2d 254. In J. R. Meyers & Co. v. Pacific Construction Co., 20 Or. 603, 27 P. 584, a provision in a construction contract that any dispute or differenc......
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...allowed or required having regard to attending circumstances. Halvorson v. Blue Mt. Prune Growers Co-op., 188 Or. 661, 670, 214 P.2d 986, 217 P.2d 254; Vance v. Mutual Gold Corp., 6 Wash.2d 466, 108 P.2d 799; Colfax County v. Butler County, 83 Neb. 803, 120 N.W. The Constitution of Oregon p......
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...He is not entitled to prove liability on some other theory. Halvorson v. Blue Mt. Prune Growers Co-op, 188 Or. 661, 678, 214 P.2d 986, 217 P.2d 254 (1950); Vanbebber v. Plunkett, 26 Or. 562, 567, 38 P. 707 ...
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