Livesley v. Krebs Hop Co.

• Decision Date: 01 March 1910
• Citation: 107 P. 460,57 Or. 352
• Parties: LIVESLEY et al. v. KREBS HOP CO.
• Court: Oregon Supreme Court

107 P. 460

57 Or. 352

LIVESLEY et al. v. KREBS HOP CO.

Supreme Court of Oregon

March 1, 1910

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

Suit by T.A. Livesley and John J. Roberts, copartners as T.A Livesley & Co., against the Krebs Hop Company, a corporation. From a decree in favor of defendant, plaintiffs appeal. Affirmed.

See also, 97 P. 718 and 104 P. 3.

This is a suit for an accounting, and to enjoin the issuance of execution and collection of a judgment, for the sum of $4,000, in a certain action, wherein this defendant was plaintiff and these plaintiffs were defendants. The facts leading up to the controversy are as follows: On August 25 1904, the parties hereto entered into a contract in writing wherein Livesley & Co., the plaintiffs, agreed to purchase and the Krebs Hop Company, defendant, agreed to sell, a certain quantity of hops therein specified. Under this contract (see 51 Or. 527, 528, 92 P. 1084) the Krebs Hop Company agreed to sell and deliver to these plaintiffs, f.o.b. cars Independence, Or., or f.o.b. boat Murphy's Landing, not later than the 15th day of October, during each of the years 1905, 1906, 1907, and 1908, 100,000 pounds of hops, the hops to be the product of, and grown on, the Krebs Hop Company's Buena Vista farm, sometimes known as the Henderson W. Murphy farm, situated in Polk county. The contract price of the hops was 14 cents per pound, to be paid $2,000 between the 1st and 15th day of April of each year, $2,000 between the 1st and 15th day of May of each year, $6,000 between the 1st and 5th day of September of each year, and $4,000 on delivery and acceptance of the hops by the buyer. No controversy respecting compliance with the contract occurred during the year 1905, but on November 4th of that year the Krebs Hop Company executed a warranty deed, purporting to convey to Ladd & Bush the entire farm upon which the hops were to be grown. The deed was recorded 11 days later, at which time an instrument in writing was executed, assigning to Ladd & Bush all payments to accrue to it under the hop contract. Subsequently Ladd & Bush gave notice to Livesley & Co. that all moneys accruing under the contract must be paid to them, and not to their assignor. After some correspondence Livesley & Co. notified Ladd & Bush and the Krebs Hop Company in writing, to the effect that they would retire from and refuse to be bound by the contract. The Krebs Company, without offering to deliver any hops, on May 19, 1906, brought an action against the plaintiffs on the contract, not for damages, but to recover and secure, and did secure, judgment in the sum of $4,000 for the April and May installments. Livesley & Co. then appealed to this court, resulting in an affirmance of the judgment, and on April 30, 1908, a mandate from this court, affirming the judgment in the court below, was entered. At the time of the commencement of this suit defendant was threatening to issue an execution against plaintiff on this judgment; hence this proceeding. The complaint, after alleging facts in substance as above, further alleges, in effect: That during the year 1906 no hops were harvested or baled on the premises described in the contract until after the 1st of September of that year, and that at all times, from the 1st day of September, 1906, until after the 15th day of October, 1906, hops, of the kind and quantity mentioned in the contract, were of the reasonable market value of 14 cents per pound. That defendant company did not deliver or tender to the plaintiffs any of the hops raised upon said premises in the year 1906, but raised more than 100,000 pounds of hops, which it retained and sold, and for which no accounting or offer of accounting has been made to plaintiffs. That on April 30, 1908, plaintiffs made to defendant the following tender in writing: "To Krebs Hop Company, a corporation, salem, oregon: we, the undersigned, T.A. livesley & co., do hereby offer to pay to you and do hereby tender to you the sum of $127.55 in money in full payment, settlement and satisfaction of that certain judgment obtained by you against T.A. Livesley and John J. Roberts, doing business under the name of T.A. Livesley & Co., in the Circuit Court of the State of Oregon, for Marion County, Department No. 1, on the 16th day of July, 1906, for the sum of $4,048.00 and $39.30 costs and disbursements, as appears by your cost bill on file therein, from which said judgment, T.A. Livesley & Co. appealed to the Supreme Court of the State of Oregon, and which said judgment was affirmed on appeal by the Supreme Court, December 17, 1907. This tender is intended to cover any loss on your part on account of any additional interest you may have had to pay by reason of our failure to pay to you the said advances sued for in said cause, and also your costs and disbursements in the Circuit Court and your costs and disbursements in the Supreme Court and legal interest thereon. And we hereby tender to you and offer to pay you any and all legal damages, if any, which may have resulted to you in the year 1906 on account of our failure to make the said advances to you and on account of our withdrawal from the contract sued on therein, and we hereby demand the immediate cancellation and satisfaction by you of the whole of the said judgment. Dated at Salem, Oregon, this the 29th day of April, 1908. T.A. Livesley & Co., by John J. Roberts."

The further averments in the complaint, so far as material to the controversy, are: "That it is unjust and inequitable and unconscionable to require plaintiffs to pay said judgment for part of the purchase price of said hops, when the defendant has failed and neglected to deliver to plaintiffs the same or any part thereof, and failed and neglected to account to plaintiffs therefor, and plaintiffs would be unable to have any redress against defendant after paying said judgment. That the said action was brought long before the time mentioned in the contract for the delivery of the hops in 1906, and the plaintiffs could not make any defense thereto on account of nondelivery of the hops, and the failure of defendant to make any accounting thereof to plaintiffs, and that the defendant took an unfair and unconscionable advantage of plaintiffs by suing upon the contract, instead of bringing an action for damages on account of the breach thereof on the part of plaintiffs for not making said advances on the purchase price of said hops. That the only damages that could have resulted to defendant on account of the failure of plaintiffs to pay said advances sued for in said action, and their withdrawal from said contract, is any additional interest it might have had by reason of such failure on the part of plaintiffs, and the said costs and disbursements and legal interest thereon. That plaintiffs have no knowledge or information of any other damages sustained by defendant on account of plaintiffs' said failure to make said payments on said contract for the year 1906, or on account of their withdrawal from said contract and that said sum of $127.55 so tendered to defendant will cover all said damages. That the plaintiffs do hereby tender to defendant and bring into court said sum of $127.55 in payment and satisfaction of said judgment and do hereby offer to pay to it any and all additional damages, if any, which may have resulted to defendant in the year 1906 on account of their failure to make said advances, and on account of their withdrawal from said contract, after a due accounting and the amount thereof duly ascertained by the court. At the time said contract was entered into the Krebs Hop Company was the owner and in possession of the lands described in said contract comprising more than 640 acres of land in the county of Polk, state of Oregon, and was the owner also of other lands situate in Marion county, Or., a part of...