In re Laberee's Estate

• Decision Date: 31 July 1928
• Citation: 269 P. 861,126 Or. 301
• Parties: IN RE LABEREE'S ESTATE. v. SIEMENS. LABEREE
• Court: Oregon Supreme Court

269 P. 861

126 Or. 301

IN RE LABEREE'S ESTATE.

LABEREE v. SIEMENS.

Supreme Court of Oregon

July 31, 1928

Department 2.

Appeal from Circuit Court, Klamath County; J. U. Campbell, Judge.

Final account of J. W. Siemens, administrator of the estate of Oscar G. Laberee, deceased, opposed by Anita Laberee. From a decree of the circuit court, modifying an order of the county court, the administrator appeals, and the opponent cross-appeals. Decree modified and remanded, with directions.

Thomas E. Davis, of Portland (D. V. Kuykendall and Robert Kuykendall, both of Klamath Falls, on the brief), for appellant.

Caleb Jones, of Klamath Falls, for respondent.

BELT J.

This is an appeal and cross-appeal from a decree of the circuit court modifying an order of the county court in the settlement of the final account in the estate of Oscar G. Laberee deceased. Laberee died in September, 1918, and left, as part of his estate, a large cattle ranch in Klamath county, Or. His widow was appointed executrix of the estate, but, on account of ill health, resigned in January, 1920, and, upon her petition, J. W. Siemens was appointed administrator. Prior to his appointment, Mrs. Laberee as executrix of the estate, entered into a written contract with him on September 22, 1919, to sell "110 head of beef cattle now owned by the estate of Oscar G. Laberee, deceased, 375 head of stock cattle also owned by said estate, and about 800 tons of hay which is owned by said estate and now upon the real property belonging to said estate." The contract provided that Siemens was to pay $50 per head for all of said stock upon delivery to him at the Laberee ranch, and that he pay $12.50 per ton for the hay "now stacked and being upon said ranch." Delivery of the cattle on the range was to be made to Siemens as soon as they could be rounded up. Those upon the home ranch near Bly, Klamath county, Or were to be delivered upon the execution of the contract. It was stipulated "that all calves born since January 1 1919, be thrown in free of charge." Siemens paid $12,000 upon the execution of the contract, and agreed to pay the balance of the purchase price upon delivery of the hay and cattle. Siemens made further payments on the contract, namely, $5,000 on October 6, 1919, and $4,750 on November 7, 1919, which he claims was the balance due the estate for the cattle and hay actually delivered to him. It is his contention that he received only 285 head of cattle and 600 tons of hay, which, at the contract price, would amount to $21,750. In other words, Siemens says that he paid for the 285 head of cattle, at $50 per head, the sum of $14,250, and for the 600 tons of hay, at $12.50 per ton, the sum of $7,500.

Mrs. Laberee, in her objections to the final account, seeks to charge Siemens on the basis that 485 head of cattle and 800 tons of hay, as specified in the contract, were delivered to him. The county court found in favor of the plaintiff, cross-appellant, on this issue, and charged the defendant administrator for the full amount of the cattle and hay specified in the contract. On appeal to the circuit court, plaintiff's contention with reference to the number of cattle delivered was sustained, but the order of the probate court relative to the hay was modified, in that it was found that there was delivered to defendant only 600 tons of hay.

On this appeal, relative to this phase of plaintiff's objections to the final account, there is presented the question: What was the number of cattle and the amount of hay delivered to defendant? The burden of proof on this issue rests with the plaintiff. We are unable to concur with counsel for plaintiff that defendant is precluded from questioning the number of cattle and the amount of hay stated in the contract. It would seem elementary that it is the duty of the seller to deliver that which he has contracted to sell. It is always a good defense for the buyer to show that, in fact, the goods which he contracted to buy were never delivered to him. It is not a question of changing the terms of the written contract. Under the terms of this contract, the delivery of the cattle and the hay and the payment of the balance of the purchase price were concurrent acts. Delivery was a condition precedent to recovery of purchase price.

It seems to have been the intention of defendant to buy all of the beef and stock cattle owned by the estate. Likewise he clearly intended to purchase all of the hay then in stack on the ranch. It is certain that the parties to this agreement did not have definite knowledge, at the time of its execution, as to the exact number of cattle or the amount of hay then on the ranch. We take it that this was a matter for final determination at the time of delivery. On the day the contract was executed, and before, Siemens and his agent Givan, an experienced stockman, made a general inspection of the cattle on the Laberee ranch; but, since all of them had not been rounded up from the range, it was impossible to ascertain the exact number of cattle, nor did they undertake to do so. The actual delivery was not made until October, 1919, at which time Givan tallied the cattle. He testifies positively that there were only 281 head, not including calves, which, under the contract, were to be without charge. He says that 4 more head of cattle were delivered at a later date, when rounded up from the range. At the time of the delivery in October, Hotchkins, who was foreman on the Laberee ranch, represented the estate in the transfer of...