Holmes v. Whitaker

• Decision Date: 26 December 1892
• Citation: 31 P. 705,23 Or. 319
• Parties: HOLMES et al. v. WHITAKER et al.
• Court: Oregon Supreme Court

31 P. 705

23 Or. 319

HOLMES et al. v. WHITAKER et al.

Supreme Court of Oregon

December 26, 1892

Appeal from circuit court, Polk county; R.P. BOISE, Judge.

Action by W.H. Holmes, administrator of the estate of Robert Ford deceased, and J.M. Leavens & Co. against George Whitaker and R.H. Bone. Judgment for defendants. Plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by BEAN J.:

This is an action to recover the sum of $1,500 paid by plaintiffs to defendants on a contract for the purchase of about 10,000 bushels of potatoes stored in bins on what is known as "Brown's Island," in the Willamette river about 2 miles above the city of Salem, and which were never delivered to plaintiffs by defendants. The contract for the sale and purchase of these potatoes was in writing, and is as follows: "Know all men by these presents, that Geo Whitaker and R.H. Bone, hereinafter known and designated as the party of the first part, and Robert Ford and J.M. Leavens & Co., hereinafter known as the party of the second part, have this day contracted to and with each other as follows, to wit: The said party of the first part, in consideration of the terms and conditions hereinafter mentioned, has this day sold to the said second party all the merchantable potatoes now stored and raised by said first party in the year 1889 on what is known as 'Brown's Island,' situated in Polk county, Oregon, and situated in a southwesterly direction from Salem, Oregon. The said first party agrees to and with said second party to deliver on board of a steamboat, as fast as the weather will permit of such delivery, said potatoes, properly sacked and sewed; the sacks and twine to be furnished by the said second party, free of charge. It is further agreed between the parties hereto that all of said potatoes shall be, before delivery of the same on board of boat, weighed on said Brown's island, and that one pound on each sack of said potatoes so delivered as aforesaid shall be allowed and deducted from the actual weight of each sack of said potatoes. The said party of the second part, in consideration of the terms and conditions hereinbefore mentioned, agrees to pay for said potatoes, to the said first party delivered as aforesaid, the sum of seventy-five cents per bushel, payable as follows: Seven hundred dollars payable this 23d day of December, 1889, eight hundred dollars on the 28th day of December, and the balance of the purchase price of said potatoes payable within five days from the time all of said potatoes are delivered on board of boat." The complaint, after setting out the contract as above, alleges that plaintiffs complied with all the terms of the contract on their part to be performed, but that defendants failed and neglected to deliver any of the potatoes as in the contract stipulated, but suffered them to be wholly lost and destroyed by a flood or high water, and hence they demand judgment for the money paid on the contract. The answer denies all the allegations of the complaint, except the making of the contract, the payment of the $1,500, and the loss of the potatoes by flood or high water, and as a separate defense, in substance, avers that at the time the contract was made, for a long time prior thereto, and ever since, it was and is the usual custom of the dealers in said property, and of the producers and purchasers of potatoes on Brown's island and along the Willamette river, in the vicinity thereof, for the purchaser to furnish the steamboat, and notify the seller when to have the potatoes ready for shipment, and for the seller to await such notification before sacking and preparing the potatoes for shipment; that the contract in this case was made with reference to such usage and custom, which was well known and recognized by plaintiffs; that it was the duty of plaintiffs to furnish a steamboat upon which the potatoes could be shipped, and notify defendants when to prepare them for such shipment; but that they failed and neglected so to do, in consequence of which the potatoes were destroyed by a flood or high water in February, 1890, without the fault or negligence of the defendants, by which they were damaged in the sum of $6,225, for which they demand judgment against the plaintiffs. The allegations of the answer were put in issue by the reply, and a trial resulted in a judgment in favor of the defendants for $2,300, from which plaintiffs appeal.

W.H. Holmes, for appellants.

Tilmon Ford, for respondents.

BEAN J., (after stating the facts.)

Brown's island, referred to in the contract between the parties to this suit, is situate in the Willamette river, about two miles above Salem, and there is no way of getting produce therefrom except by one of the steamboats plying on the river, nor is there any warehouse or building on the island at the boat landing in which such produce can be stored awaiting shipment, but it must be put on board a boat immediately after its delivery at the landing, in order to protect it from damage by the elements. On the trial of this action, defendants gave evidence tending to show that it is, and was at the time of the contract in question, the general custom or usage for the purchaser of produce on the island, and especially potatoes, to furnish the steamboat for the shipment of such produce, and notify the seller of the time the boat would be at the island to receive it, and for the seller to await such notice before preparing and delivering the produce at the landing for shipment, and that plaintiffs knew of this custom and usage at the time the contract was made, and that such contract was made with reference thereto; but they failed and neglected to furnish the boat, or notify defendants to prepare the potatoes for shipment, until after the flood or high water by which the potatoes were lost or destroyed. Plaintiffs contend this evidence is incompetent and immaterial, because it seeks to import into the written contract terms and conditions not contained therein.

We begin by saying that...