Interior Warehouse Co. v. Dunn

• Decision Date: 23 May 1916
• Citation: 157 P. 806,80 Or. 528
• Parties: INTERIOR WAREHOUSE CO. v. DUNN.
• Court: Oregon Supreme Court

157 P. 806

80 Or. 528

INTERIOR WAREHOUSE CO. v. DUNN.

Supreme Court of Oregon

May 23, 1916

Appeal from Circuit Court, Gilliam County; D. R. Parker, Judge.

Action by the Interior Warehouse Company against Edward Dunn. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is an action for damages for a breach of the following contract:

"Grain Contract.

"Condon 25 May, 1914.

"I have to-day sold to the Interior Warehouse Company for delivery on or before 15th September, 1914, three thousand (3,000) sax net weight of Fortyfold wheat, at the price of seventy (70) cents per bushel net weight in the warehouse of Interior Warehouse Co. at Condon, and hereby acknowledge having received on said sale, as earnest money, the sum of One 00-100 ($1.00) dollars.

"It is agreed and understood, that the price of seventy (70) cents mentioned is for No. 1 Forty-fold wheat, equal to the Portland Chamber of Commerce standard now in effect, but off-grade wheat of the same variety will be received against this sale at the customary discount for such wheat.

Edward Dunn, Seller.

"Confirmed:

"Interior Warehouse Company,

"By A. B. Robertson, Agent."

Defendant delivered to plaintiff, 1,587 sacks of wheat, and for a failure on his part to deliver the balance the plaintiff company claims damages in the sum of $446.85. Defendant admits the "execution and signing" of the instrument set forth in the complaint, and affirmatively pleads the facts to be in effect as follows: That plaintiff and defendant contracted with reference to a custom prevailing in the vicinity of Condon, recognized for more than five years by farmers and grain buyers, to the effect that feed and seed for the following seasons be excepted from any estimate of grain sold before harvest, where the language of the contract is not plain or is silent as to details. Defendant further pleads:

"That on the 25th day of May, 1914, defendant orally agreed with said plaintiff, through its agent, A. B. Robertson, to sell to plaintiff all the wheat he had to spare out of crop raised on the James Dunn and Edward Dunn ranches in Gilliam county, Or., which at that time, after deducting seed and feed for said ranches and live stock used thereon, was estimated at 3,000 sacks, delivery to be made during the month of August, 1914. That as soon as said agreement was perfected, the said agent for plaintiff, A. B. Robertson was instructed to draw up said contract in writing in accordance with the terms of said agreement. That this defendant had, prior to said 25th day of May, 1914, divers business dealings with said agent, and had much faith and confidence in his honesty, and relied on him drawing said contract as agreed. That this plaintiff, through its agent A. B. Robertson, instead of drawing said contract as just alleged in paragraph numbered four, for the purpose of defrauding this defendant, knowingly, falsely and fraudulently represented to this defendant that said contract was drawn by him as agreed upon, in said paragraph numbered 4, then hurriedly laid the same onto the counter for defendant to sign, and this defendant, who was without his eyeglasses, could not, without said glasses, read said contract, and, relying upon the representations, honesty and past fair dealings with said agent, and while defendant was in a hurry, did sign said contract without reading the same. That defendant would not have signed said alleged agreement had he known that the same did not contain the true contract of said parties. That said representations were made to deceive this defendant, and did deceive him and he acted thereon."

That plaintiff's agent fraudulently represented (paragraph 6) that in the event Dunn did not raise 3,000 sacks on the premises named, the plaintiff would not exact the delivery thereof, and that the contract agreed to should have contained substantially the following words:

"I have this day sold to the Interior Warehouse Company all the wheat grown for season of 1914 on the James Dunn and Edward Dunn ranches in Gilliam county, Oregon (that will be left after deducting feed and seed for 1915 crops for said ranches), estimated at three thousand sacks. Delivery to be made in August, 1914."

Defendant further alleges:

"That this defendant did not discover said fraud and deception until August, 1914, prior to the date he delivered said wheat, and immediately thereafter informed the agents of this plaintiff, James Walker and one Strang, that said contract as drawn could not be complied with, and that it did not express the true agreement of the parties thereto. That said agents then and there modified said contract, and then and there stated that it would be treated as if made as originally agreed upon, and requested this defendant to deliver all the wheat under the terms of the true agreement, and that further performance would not be exacted. That this defendant relied thereon, and delivered said wheat to said plaintiff in accordance with the terms of the true contract, which on account of the drought and late frost consisted of only 1,587 sacks, when in truth and in fact said land, under ordinary conditions, would have produced 3,000 sacks and more, together with feed and seed for the following season, of the kind and variety contracted for."

Plaintiff demurred to the separate answer on the ground of its insufficiency. The demurrer was overruled, and, plaintiff electing to stand thereon, judgment was rendered for defendant. Plaintiff appeals.

A. L. Veazie, of Portland (Veazie, McCourt & Veazie, of Portland, and Horner & Shanks, of Condon, on the brief), for appellant. T. A. Weinke, of Condon, for respondent.

BEAN, J. (after stating the facts as above).

The issue for determination upon this appeal arises on the overruling of the demurrer. By way of preliminary statement it may be said that the further and separate answers present allegations of a local custom, where crops are sold, to reserve the feed and seed for the ensuing year; of fraud on the part of the plaintiff's agent in reducing the contract to writing; of a representation made to the defendant before the writing was signed that the terms thereof would not be enforced against him; and of a subsequent waiver by agents of the plaintiff.

The provisions of the contract set out in the complaint are definite and certain as to what was to be delivered in fulfillment thereof, and the instrument is free from ambiguity. It is therefore to be construed according to the plain, common meaning of the words used, and a custom or usage inconsistent with its terms cannot be interposed to contradict or qualify its provisions; for in such case the terms of the contract are evidence of the intentions of the parties to avoid the effect of such usage or custom. To admit proof of such a custom would be to contradict the plain stipulations of the writing. Holmes v. Whitaker, 23 Or. 319, 323, 31 P. 705; Willis v. Lance, 28 Or. 371, 374, 43 P. 384, 487; Barnard v. Houser, 68 Or. 240, 137 P. 227.

It is for the court to determine to what extent, if any, the custom or usage relied upon shall modify or control the contract involved. Standard Ency. Procedure, pp. 334, 335. All oral negotiations or stipulations made between the agent of the plaintiff and Dunn, preceding or accompanying the execution of the written agreement, are merged in it, and no contradiction of its legal effect by parol stipulations preceding or accompanying its execution can be admitted. It...