Krebs Hop Co. v. Livesley

• Decision Date: 05 October 1909
• Citation: 55 Or. 227,104 P. 3
• Parties: KREBS HOP CO. v. LIVESLEY et al.
• Court: Oregon Supreme Court

104 P. 3

55 Or. 227

KREBS HOP CO. v. LIVESLEY et al.

Supreme Court of Oregon

October 5, 1909

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Action by the Krebs Hop Company against T.A. Livesley and another doing business as T.A. Livesley & Co. From a judgment for plaintiff, defendants appeal. Affirmed.

See also, 51 Or. 527, 92 P. 1084.

This is an action to recover damages for an alleged breach of a written agreement. The complaint states that the plaintiff is a corporation, and that the defendants are partners, and avers, in substance, that on August 25, 1904, a contract was consummated whereby the defendants stipulated to buy, and the plaintiff to sell, 500,000 pounds of prime Oregon hops, to be grown on the latter's farm in Polk county, of which quantity 100,000 pounds were to be delivered f.o.b. cars at Independence, Or., or in like manner boat at Murphy's Landing, not later than October 15th of each year from 1905 to 1909, inclusive, for which product the defendants were to pay 14 cents a pound, and to advance on account thereof $2,000 in April, a like sum in May, $6,000 in September, and the remainder when the hops were delivered and accepted; that the designation of the places of delivery was inserted in the contract for the benefit of the defendants, whose duty it was to advise the plaintiff at which place the property should be left; that on previous years they had indicated the locality with which selection the plaintiff acquiesced; that, in order to ascertain where the crop so grown in 1907 should be surrendered, the plaintiff about October 10th of that year notified the defendants that it had 100,000 pounds of contract hops for them and requested to be informed at which of the specified places delivery should be made, but defendants refused to comply therewith, and in the year 1906 had unlawfully attempted to rescind the agreement, and wrongfully declined to receive any hops thereunder; that plaintiff duly performed all the terms of the contract required to be kept by it, and in October, 1907, was able ready, and willing to transfer to the defendants f.o.b. at either place, 100,000 pounds of prime Oregon hops, grown that year on the farm mentioned, and would have offered to surrender that quantity if the defendants had designated the place where it should be left, but, because of their refusal in this respect, the plaintiff was unable to tender a delivery; that on October 15, 1907, the defendant refused to receive any of the hops or to pay the stipulated price therefor; that at that time hops of the quality so on hand were worth at the places named only 8 cents a pound; and that in consequence of such refusal the plaintiff had sustained damages in the sum of $6,000, for which judgment was demanded. The answer denied the material allegations of the complaint, and averred, in effect, that without the defendants' knowledge or consent the plaintiff about February 1, 1906, sold and conveyed its farm, assigned the contract, and, as collateral security, transferred the sums of money stipulated to be advanced to Ladd & Bush, bankers which alienations were in violation of the terms of the contract, in consequence of which the defendants rescinded the agreement and so notified Ladd & Bush and the plaintiff.

For a second defense it is alleged that on February 1, 1906, Ladd & Bush, with plaintiff's knowledge and consent, notified the defendants of the assignments of such anticipated payments, whereupon they requested a copy of the transfer and a statement of the ownership of the farm from such bankers, but they refused to comply therewith, in consequence of which the plaintiff is estopped, and ought not to be permitted, to allege or prove that the contract has not been violated by it, or that any payments have matured or will accrue thereunder.

For a third defense it is alleged that on March 24, 1906, the defendants notified the plaintiff that in consequence of such transfers they abrogated the contract, and that thereafter, and during that year, the plaintiff raised, harvested, and baled more than 100,000 pounds of prime hops, but did not tender or offer to deliver any part thereof to the defendants, who, by reason thereof, were induced to believe that it assented to such rescission, which facts are pleaded in bar of a recovery herein.

The allegations of new matter in the answer were denied by stipulation, in lieu of a reply, and, the cause having been tried, judgment was rendered against the defendants, and they appeal.

W.M. Kaiser and Wirt Minor, for appellants.

John A. Carson and Thos. Brown, for respondent.

MOORE, C.J. (after stating the facts as above).

An action involving an alleged prior breach of the contract herein was determined by this court, which held that the conveyance of the farm, and the assignment of the advance payments which were to have been made on account of the purchase of the hops did not render it impossible for the plaintiff to perform its part of the agreement, and therefore the alienations made to the bankers did not justify a rescission of the contract by the defendants. Krebs Hop Co. v. Livesley, 51 Or. 527, 92 P. 1084. The conclusion thus reached was in a different action, but as it related to one of the issues now raised, and was litigated by the identical parties hereto, we shall take it for granted that such question was finally settled by the former adjudication. "The law," says Mr. Justice Bean in Portland Trust Co. v. Coulter, 23 Or. 131, 133, 31 P. 280, 281, "is well settled that a decision of this court upon a point distinctly made becomes in all subsequent proceedings between the same parties concerning the same subject-matter, and upon the same facts, the law of the case by which we are bound whatever our views might be upon an original consideration of the matter." To the same effect are the following cases: Stager v. Troy Laundry Co., 41 Or. 141, 68 P. 405; Pacific Biscuit Co. v. Dugger, 42 Or. 513, 70 P. 523; Baker County v. Huntington, 48 Or. 593, 87 P. 1036, 89 P. 144; Baines v. Coos Bay Navigation Co., 49 Or. 192, 89 P. 371. No error was therefore committed in refusing to receive in evidence the deed to the farm in Polk county or the assignment of all the payments accruing under the contract, executed by the plaintiff to Ladd & Bush, or in rejecting the correspondence between the latter and the defendants in relation to such alienations.

It is contended by defendants' counsel that, though 100,000 pounds of hops were to be delivered each year, the contract was nevertheless entire, to wit, for the sale of 500,000 pounds, the delivery thereof to be in annual installments from 1905 to 1909, inclusive, and, this being so, the failure of the plaintiff to deliver any hops in the year 1906 constituted such a breach of the conditions to be performed by it as to warrant a rescission of the agreement by the defendants. It will be...