Livesley v. Johnston

• Decision Date: 03 April 1906
• Parties: LIVESLEY et al. v. JOHNSTON et al. [*]
• Court: Oregon Supreme Court

84 P. 1044

48 Or. 40

LIVESLEY et al. v. JOHNSTON et al. ^[*]

Supreme Court of Oregon

April 3, 1906

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

Action by T.A. Livesley and another, doing business as T.A. Livesley & Co., against John Johnston, Jr., and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

See 82 P. 854.

On September 5, 1902, the plaintiffs and the defendant Johnston entered into a contract by the terms of which Johnston agreed to sell and deliver to the plaintiffs and they agreed to purchase 20,000 pounds of hops at 9 1/2 cents a pound, for each of the years from 1903 to 1907, inclusive, such hops to be grown on a yard leased by Johnston from Frank Chappelle and others. The plaintiffs agreed to advance to Johnston on or before April 1st of each year $336, with which to pay the rent of the yard, and $250 "on or about April, May, and June," for cultivating purposes, and at or during picking time 4 1/2 cents a pound for picking purposes, the balance of the purchase price to be paid when the hops were delivered to and accepted by the plaintiffs. The contract was so drawn that the advances made and to be made by the plaintiffs were to become a lien upon the hops. Johnston refused to deliver the hops for the year 1903, and on the 24th of September this suit was commenced against Johnston Wolf & Son, and the Southern Pacific Company, to compel a specific performance of the contract and to restrain and enjoin the sale or disposition of the hops or their removal from the jurisdiction of the court. In their complaint plaintiffs allege that they were, and are, ready and willing to perform all the terms and conditions of the contract on their part and tendered and offered to make the advances as stipulated, but that Johnston refused to accept the same and early in the year 1903 notified then that he would no longer be bound by the contract, and would not deliver the hops as agreed upon; that Johnston is insolvent and wholly unable to answer in damages for a breach of the contract. Wolf & Son were made defendants on the ground that they claimed a lien on the hops, and the Southern Pacific Company, because the hops had, prior to the commencement of the suit, been delivered to it for storage and transportation, and were then in its possession. A preliminary injunction was issued as prayed for, restraining the defendants, and each of them from selling, disposing of, encumbering, or removing the hops from the jurisdiction of the court, but a demurrer to the complaint was sustained, and a decree entered, dismissing the suit, and dissolving the injunction. From this decree an appeal was taken, and the cause reversed and remanded for such further proceedings as might be deemed proper. Livesley v. Johnston, 45 Or. 30, 76 P. 13, 946, 65 L.R.A. 783, 106 Am.St.Rep. 647. After the mandate had been returned to the court below, the plaintiffs filed a supplemental complaint, setting up the commencement of the original suit, the preliminary injunction, the motion to dissolve such injunction, the demurrer to the complaint, and the rulings thereon, the appeal therefrom, and the decision on such appeal, and averring that after the appeal had been taken and perfected and a supersedeas bond given, the defendant Johnston, for the purpose of cheating and defrauding the plaintiffs, sold the hops to his codefendants. Wolf & Son, who caused them to be removed from the state by the defendant the Southern Pacific Company; that the hops were bought by Wolf & Son and removed by the Southern Pacific Company, for the purpose of defeating any decree plaintiffs might recover in the suit; and that hops so disposed of and removed from the state were of the value of $5,000, by reason whereof plaintiffs have been damaged and defrauded out of $3,100 over and above the amount they agreed to pay therefor.

The defendant Johnston in his answer admits the execution of the contract as alleged, but denies that plaintiffs have been ready and willing to perform the contract on their part, or that they tendered or offered to make the advances as stipulated, or to perform any of the conditions of the contract; or that he is insolvent or unable to answer in damages for breach of the contract; admits that he raised 20,000 pounds of hops during the year 1903, which he delivered to the Southern Pacific Company, for his codefendants Wolf & Son; but denies that the same was in contravention of any contractual rights of the plaintiffs. For a further and separate defense he pleads a breach by the plaintiffs of the stipulation that they would advance on or brfore April 1st of each year money with which to pay rent and "on or about April, May, and June," money for cultivating purposes, by alleging that on or about the 2d of April they notified him that they would refuse to pay the rent or make the required advances or deal further with him under the contract; that defendant was without money with which to pay the rent and was in great peril of losing his lease and suffering great and irreparable damage, and therefore immediately after the default of the plaintiffs notified them that he had rescinded the contract and would no longer be bound thereby; that in order to preserve his rights he was compelled to, and did, borrow of the defendants Wolf &amp Son money with which to pay the rent, and entered into a contract with them for such money as might be necessary properly to cultivate, harvest, and market the crop, since which time he has had no contractual relations whatever with the plaintiffs; that up to the time of the default by the plaintiffs, he was ready and anxious to comply with the contract on his part, but was prevented from so doing by reason of the refusal of the plaintiffs to make the advances to him as stipulated. He also alleges that he is solvent and has property to the value of $8,200, and is therefore able to satisfy on execution any judgment plaintiffs may secure against him for breach of the contract. The defendants Wolf &amp Son admit the execution of the contract between the plaintiffs and Johnston, but deny all other allegations of the complaint on information and belief, and affirmatively allege that on or about April 3, 1903, they loaned Johnston $336 with which to pay the rent on his hopyard, and thereafter, on May 10th, entered into an agreement with him to advance money for the purposes of cultivating, picking, harvesting, and marketing the hops; that at the time of making such advances and contract they believed, in good faith, that the agreement between him and the plaintiffs had been lawfully rescinded and the contractual relations terminated; that in pursuance of their agreement and contract with Johnston they have advanced to him from time to time money for the purposes of cultivating, harvesting, and marketing the hops amounting in the aggregate to the sum of $1,818.49; that after the preliminary injunction had been dissolved they purchased the hops of Johnston in good faith, believing they had a right to do so, and paid him therefor. Johnston and Wolf & Son joined in an answer to the supplemental complaint in which they admit all the material matters alleged therein except that the acts charged were done with a fraudulent purpose or design. The Southern Pacific Company answered the original complaint denying a part of the allegations thereof and alleging that it received the hops from Johnston for Wolf & Son as a warehouseman and common carrier for the purposes of storage and transportation only, and that it had no other interest therein; that at the time the preliminary injunction was dissolved, the court ruled and so stated in the presence of counsel that it could remove or dispose of the hops as it might see fit, and relying on the order dissolving the preliminary injunction and such opinion and ruling, it did thereafter on or about the ____ day of December, 1903, deliver the hops to Wolf & Son upon their demand and that of the defendant Johnston, and thereby parted with the possession and control thereof. The plaintiffs filed replies to the several answers of the defendants in which they deny the material allegations of such answers and affirmatively allege that on March 28, 1903, they mailed to the defendant Johnston their check on Ladd & Bush, bankers of Salem, for the sum of $336, payable to the owners or lessors of the hopyard, and at the same time a check for $250, payable to Johnston personally on account of advances to be made by them on their contract; that on the 31st of March, they observed that the payment of the $250 to Johnston was premature, and so notified him, and stopped payment of the check therefor, but not the check in favor of the owners of the land for rent; that no objection was made by Johnston at any time that the payment of the advances was made by checks and not in money; that at the time the checks were drawn and at all times plaintiffs had and still have sufficient funds in Ladd & Bush's bank to pay such checks; that immediately upon the rendition of the decree dissolving the preliminary injunction, the plaintiffs appealed and served and filed an undertaking for stay of execution; that the sale of the hops by Johnston to Wolf & Son was made after such appeal had been taken and perfected, with full knowledge of the plaintiffs' contention. Upon the issues thus joined the cause was tried and decree rendered in favor of plaintiffs and against the defendants jointly for the sum of $2,500, the value of the hops at the time stipulated for their delivery by Johnston to the plaintiffs over and above the price which plaintiffs were to pay therefor, with interest thereon at the rate of 6 per cent. per annum from October 31, 1903. From this decree the present appeal was taken.

Geo. G....