Lachmund v. Lope Sing

• Decision Date: 22 June 1909
• Citation: 102 P. 598,54 Or. 106
• Parties: LACHMUND et al. v. LOPE SING et al.
• Court: Oregon Supreme Court

102 P. 598

54 Or. 106

LACHMUND et al. v. LOPE SING et al.

Supreme Court of Oregon

June 22, 1909

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Suit by Louis Lachmund and another, partners under the firm name of Lachmund & Co., against Lope Sing and others. From a decree dismissing the complaint, plaintiffs appeal. Affirmed.

This is a suit to foreclose a contract and chattel mortgage on certain hops. The portions thereof, material to the issues here, are as follows:

"Agreement dated February 5, 1907, between Oliver Beers and Lope Sing of Marion county, state of Oregon, called herein the seller, and Paul R.G. Horst, called herein the buyer concerning the hop crop of the seller for the year 1907 and the sale of hops, not the product of the first year's planting, bright, even color, fully matured free from mould or vermin damage, cleanly picked, properly dried and cured and put up in good merchantable order *** herein called 'Contract Hops' to be grown harvested and prepared for market by the seller on that certain hopyard herein called the 'Hopyard' situated on that certain farm in Marion county, state of Oregon *** owned by Oliver Beers.

"First. The seller agrees, during the year 1907, in a careful and husbandlike manner, and in due season, to do all things which may be necessary in order to produce from the hopyard, contract hops, and to bargain and sell and he does hereby bargain and sell, and he does agree to deliver to the buyer in one lot *** forty thousand (40,000) pounds net weight of contract hops from the hopyard. ***

"Second. The buyer agrees to purchase forty thousand (40,000) pounds of contract hops of the crop of hops raised by the seller upon the hopyard in the year 1907, and to accept and receive the same when delivered in pursuance of this agreement, and to pay therefor the sum of twelve (12) cents per pound, that is to say: to pay one ($1.00) dollar at the time of the signing hereof; eight hundred ($800.00) dollars on or about April, 1907, and twenty-four hundred ($2,400.00) dollars during the picking season as the same shall be actually required. ***

"Third. Should the seller neglect or fail to do anything which, as a careful husbandman, he should do, in order to produce the contract hops, and if by reason thereof, or for any cause, the hops raised shall be inferior to contract hops, the buyer shall have the right and privilege of receiving and accepting so many thereof as are contract hops at the contract price, and the balance of the quantity contracted at a reduction in price equal to the difference in value between the hops tendered and contract hops *** but in the event that the seller, for causes beyond his control, is unable to deliver contract hops and, for this reason, is unable to comply with this contract, the buyer agrees to accept, in satisfaction of this agreement, the hops raised and delivered at the reduced price, to be ascertained as above provided, but should the seller and the buyer fail to agree upon a price at which the inferior hops shall be accepted in fulfillment of this contract, then, in that event, the seller agrees to return all advances heretofore made with interest to the buyer upon demand.

"Fourth. It is contemplated between the parties hereto, that the seller shall require an amount not exceeding thirty-two hundred ($3,200.00) dollars at the time specified, for the purpose of enabling him to pay the expenses of properly cultivating and caring for the hopyard and of picking, drying, curing and baling the product thereof, and for this reason and for these purposes, the buyer agrees to advance said sum at the times and in the manner and upon the request above mentioned, *** that should the seller make default in this agreement and by reason of such default, the buyer not being in default, 40,000 pounds of contract hops be not delivered in pursuance of this agrement, the buyer may recover of the seller damages for the seller's breach of this agreement, and in such event it is hereby agreed that the difference between the contract price and the market value at the time of delivery of forty thousand pounds of contract hops, together with all advances, with interest are hereby fixed as the liquidated damages which the buyer shall recover from the seller for such breach. ***

"Fifth. The buyer shall have the right, prior to making any of the advances above provided, to examine the condition of the hopyard, and if the hop crop at the time when such advances should be made in pursuance of this agreement is in such condition that contract hops cannot be grown, picked, cured and delivered therefrom, the buyer shall be absolved from the obligation to make further advances, but all advances already made hereunder, with interest, shall be repaid to the buyer upon demand."

The sixth subdivision is intended as a chattel mortgage of the whole crop to secure the buyer for the payment of the liquidated damages specified in subdivision 4.

The complaint alleges that, pursuant to the terms of the contract, Horst advanced to defendant $1,329.42, and that thereafter, about September 10th, and prior to the time the money for picking was required to be advanced, Horst ascertained that the hops were moldy and inferior to the hops called for by the contract, and that contract hops could not be picked, cured, and delivered from said yard on account thereof; that Horst notified defendants that he would not advance the money for picking, and would not be further bound by the terms of the contract, and demanded repayment of the advances already made. Thereafter Horst assigned to plaintiffs the contract and mortgage, and all his right and interest thereunder, and this suit is brought to recover the sum of $1,329.42, with interest, and to foreclose the mortgage securing the repayment thereof. At the time Horst refused to make further advances the seller was unable to proceed with the picking, without financial aid. Thereupon in consideration of a bill of sale executed by the seller to defendant Seid Back transferring and delivering to him all the seller's right, title in, and possession of, the crop, Seid Back took charge of the hopyard, paying the laborers for the work already done, and completed the harvesting and baling thereof. Defendants deny that plaintiffs are entitled to recover from them the amount of the advances, and allege that they performed all the conditions of the contract, and that Horst, without cause, refused...