Lentz v. Oregon Growers' Co-op. Ass'n

• Decision Date: 19 January 1926
• Parties: LENTZ v. OREGON GROWERS' CO-OP. ASS'N.
• Court: Oregon Supreme Court

242 P. 826

116 Or. 683

LENTZ v. OREGON GROWERS' CO-OP. ASS'N.

Supreme Court of Oregon

January 19, 1926

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Benjamin Lentz, by Louise Lentz, his guardian ad litem against the Oregon Growers' Co-operative Association. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

This is an action by plaintiff to recover from defendant the sum of $1,762.88 alleged to be the reasonable value of 44,036 pounds of loganberries sold and delivered by the plaintiff to the defendant during the months of July and August, 1922. The cause was tried before the court and a jury, and at the close of all the testimony the court directed a verdict in favor of defendant, and a judgment was entered accordingly. Plaintiff appeals.

The defendant by its answer denied the alleged sale and delivery of berries and the indebtedness, and by an affirmative answer pleaded in bar to the action the decree of the circuit court of the state of Oregon, for the county of Marion, in the case of the Oregon Growers' Co-operative Association v. August Lentz and Benjamin Lentz, which was decided by this court on February 13, 1923, and is reported in 107 Or. 561, 212 P 811. The gravamen of the defense consists of the allegations found in the answer to the effect that the loganberries, for the value of which this action is brought, were the same loganberries involved in the former litigation, and that they were delivered to this defendant in pursuance of an injunction entered in the former litigation.

It is also alleged that the general matter in issue in the former litigation was the ownership of said loganberries, and that it was therein adjudicated that the ownership thereof rested in August Lentz, the father of the plaintiff in this case. It is further alleged that the payment for said loganberries is a matter for adjustment between August Lentz and this defendant, and not between the plaintiff and this defendant that the defendant is barred from bringing this action because of the facts and matters above mentioned particularly set forth in the answer. Plaintiff filed a reply putting in issue the new matter of the answer, except as alleged in the complaint.

Upon the trial the plaintiff, Benjamin Lentz, testified to the effect that during the season of 1922 he delivered to the order of defendant the 44,036 pounds of loganberries mentioned in the complaint, and that receipts were issued to him therefor by the company to whom the defendant ordered the berries to be delivered; that the reasonable value of the berries was then 4 cents per pound; that he was the owner of the berries at the time the same was sold and delivered to the defendant; that the price of 4 cents per pound was the price paid by the defendant to the different growers during the season of 1922; that he had not been paid for the berries; that the berries were grown upon plaintiff's father's place near Salem upon 26 acres of land, 19 acres of which was covered by a contract between his father and the defendant, and 7 acres, about one-third, came from acres not in the contract.

Upon cross-examination of the plaintiff as a witness, the defendant brought out that the plaintiff, Benjamin Lentz, was one of the defendants in the equity suit mentioned, and the berries were delivered to the defendant association as a result of the injunction issued by the circuit court in the former litigation, and were delivered "in obedience and the direction of the court to make delivery to no one other than the Oregon Growers' Association."

The defendant introduced in evidence the record of the judgment roll in the former litigation in the suit mentioned, and moved the court to direct a verdict in favor of defendant for the reason that the berries for which recovery is sought were the same berries that were involved in the former litigation and produced on the same farm; that the claim of ownership now advanced is based upon the same lease, and is the same as that in the former litigation; that the issues in this case were determined in the former suit.

W. C. Winslow, of Salem, for appellant.

A. A. Hampson, of Portland (Dey, Hampson & Nelson and C.J. Young, all of Portland, on the brief), for respondent.

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

It appears that on April 22, 1920, August Lentz entered into a contract with the defendant association, whereby the association agreed to purchase and August Lentz agreed to sell and deliver to the association all of the agricultural or horticultural products of the varieties specified at the end of the contract, grown by or for him during the years 1920 to 1924, both inclusive, that he intended to sell or market or deliver for sale or marketing. A copy of the contract is set forth verbatim in the case of Oregon Growers' Association v. Lentz, 107 Or. 561, 212 P. 811, commencing on page 566 of the former report. The notation at the end of the contract, on page 573 of the report (212 P. 815), reads in part as follows:

"Growers present acreage in Oregon of products subject to this contract: 15 acres of Logans. B. located at Salem. 4 acres of Logans. N. B. located at Salem."

It appears that in the early part of January, 1922, August Lentz, who had the marketing contract with the association, leased the premises to his son, Benjamin Lentz, the plaintiff. The son was to cultivate and harvest the berries and pay all the expenses thereof and divide the net proceeds with his father. In 1922 Benjamin Lentz, the lessee, delivered the loganberries, not only grown on the 19 acres referred to in the contract between the association and August Lentz, but also all the berries grown upon the 26 acres bearing loganberries upon the premises, for the reason, as he asserts, that the decree was not specific as to what 19 acres were involved, and to avoid any violation of the injunction.

There was no suggestion by the defendant in its answer that it has paid any one for the berries in question, or that it has any offset or counterclaim to the demand made by plaintiff, either as against August Lentz or Benjamin Lentz.

Upon the trial of the equity suit, the circuit court, after reciting the execution of the contract, found, among other things, in effect, that Benjamin Lentz was then a minor of the age of about 19 years, residing at the home of his father, August Lentz, and that he had knowledge of the signing of the marketing contract by his father with the association; that August Lentz made deliveries under the contract in 1921; that "5th, about the month of January, 1922, the defendants (August Lentz and Benjamin Lentz) entered into a working agreement, by the terms of which the defendant Benjamin Lentz was to work the same for the year 1922, pay all bills, receive wages, and thereafter divide the proceeds received equally with his father, August Lentz, and under such an agreement the defendants claim the farm was being operated at the time of the commencement of this suit."

The court further found, after reciting the purpose of the association, that the defendants knew that the association had incurred financial and other obligations in reliance upon the expected faithful performance by the defendants and other members of their respective agreements similar to that of August Lentz; that during the year 1922 the defendants "produced loganberries on 19 acres of the land owned by the defendant August Lentz, which loganberries were subject to the obligation on the part of the defendants to deliver to the plaintiff" association under the terms and provisions of the marketing agreement; that they had refused to so deliver; that "plaintiff (association) is entitled to the delivery of loganberries from 19 acres of defendants"--and entered a decree enjoining both the defendants, August Lentz and Benjamin Lentz, from delivering any loganberries produced or grown by or for them, or either of them, upon the 19 acres of land mentioned, covered by the contract, "to any other person, firm or corporation than the plaintiff or its order until the 1st day of January, 1925."

This decree was affirmed on appeal to this court. See Oregon Growers',...