McCormick v. Williams

• Decision Date: 15 April 1953
• Citation: 199 Or. 66,255 P.2d 1071
• Parties: McCORMICK et al. v. WILLIAMS.
• Court: Oregon Supreme Court

Page 1071

255 P.2d 1071

199 Or. 66

McCORMICK et al. v. WILLIAMS.

Supreme Court of Oregon.

April 15, 1953.

Argued and Submitted Jan. 6, 1953.

Philip A. Levin, of Portland, argued the cause for appellant. With him on the brief were Coan, Rosenberg & Swire, of Portland.

William E. Dougherty, of Portland, argued the cause for respondents. With him on the brief were Robin D. Day, of Salem, and Maguire, Shields, Morrison & Bailey, of Portland.

Before LATOURETTE, C. J., and WARNER, LUSK, BRAND and PERRY, JJ.

LUSK, Justice.

Plaintiffs brought this action to recover the purchase price of 21 bales of hops alleged to have been sold by them and delivered to and accepted by the defendant. A jury trial resulted in a judgment for the plaintiffs in the amount prayed for, $3,477.40, from which this appeal is taken.

The plaintiffs, father and son, operate a hop farm near Woodburn, Marion County, Oregon. The defendant, Ralph E. Williams, Jr., doing business under the firm name and style of 'Williams & Hart', is a hop buyer. The controversy has its inception in a written contract entered into under date of March 9, 1944, at which time the firm of Williams & Hart consisted of the defendant, Ralph E. Williams, Jr., and Harry L. Hart, who has since died. By the terms of the contract plaintiffs agreed to deliver to Williams & Hart their entire salable crop of hops of the growth of the year 1947. The purchase price to be paid is provided for in the contract as follows:

'Buyer agrees to pay to the Seller, as the purchase price of said hops, the growers' ceiling price as established by the O.P.A. or other governmental agency as such price exists on October 1, 1947. In the event that no ceiling price shall have been established by October 1, 1947, the price shall be the market price generally paid growers for hops of like quantity and quality on that date, but in no case shall it be less than 50cents.'

Delivery was to be made free on board cars or in the warehouse at Donald or Salem, Oregon, between the first day of October, 1947, and the 31st day of October, 1947.

The entire crop was delivered to the defendant and paid for except 22 bales of late clusters. One of these 22 bales was subsequently rejected, and the dispute relates to the remaining 21 bales.

The hops were brought to the warehouse in Salem in September, 1947. About September 19 most of them were inspected and accepted. The late clusters which were accepted were paid for on October 9, 1947, at the rate of 83 cents a pound, the market price on October 1, 1947. At the time of the original inspection 22 bales of late clusters were not accepted because the hops in them, or some of them, were found to be damp. They were returned by plaintiffs to their farm for further drying, and, after a lapse of several days, brought back to the warehouse in Salem. Plaintiffs claim that 21 bales of this lot were accepted by the defendant on October 14th. This the defendant denies, and he has argued in his brief that there is no evidence of such acceptance. He further contends that the action was brought, and the case tried, on the theory of an 'agreed price' for the hops, and that there is no proof of such agreed price in the record. These questions were properly raised in the court below by motions for a directed verdict and for judgment notwithstanding the verdict, and the denial of the latter motion is the basis of defendant's first assignment of error.

We will first consider an objection made by plaintiffs to the sufficiency of this assignment of error. It reads:

'The court erred in failing to grant defendant's motion for a judgment in his favor notwithstanding the verdict of the jury.'

Plaintiffs urge that the assignment presents nothing for review because it is too general, especially since the brief does not set out either the motion n. o. v. itself or the motion for a directed verdict upon which it was presumably based. The bill of exceptions discloses that the motion n. o. v. was based upon the ground that the defendant's motion for a directed verdict should have been granted, and that the cause was submitted to the jury at the request of plaintiffs with leave to defendant to move for a judgment n. o. v. should the verdict be in favor of the plaintiffs, agreeably to the practice outlined in § 6-707, O.C.L.A., as amended. We think that an assignment of error of this kind should incorporate the motion for a directed verdict so that we may be enabled by a reading of the brief to determine whether the points argued here were presented to the trial judge as grounds of such motion. It would not be just, however, to penalize the defendant in this case for the inadequacy of his assignment of error, because a deficiency in our own rules may well have misled counsel for the defendant. Rule 13, subd. 3, par. a, which governs assignments of error in law actions, provides in part:

'The following arrangement and wording, as far as applicable, together with reference to page of bill of exceptions, are required:

* * *

* * *

'The court erred in denying the motion for nonsuit or directed verdict (Set out motion haec verba) * * *.'

There is no requirement in the case of an assignment of error based on the denial of a motion for judgment n. o. v. that the motion for a directed verdict be set out. That being so, counsel would have been justified in assuming that the general provision of the rule that 'each assignment of error shall be clearly and succinctly stated' was not intended to include a specific requirement of that kind. We will, therefore, consider the appeal on its merits.

As stated, the grounds of the motion for a directed verdict were that the plaintiffs failed to prove either acceptance of the hops or the agreed price alleged. Defendant in his reply brief appears to have abandoned the issue of acceptance; this discussion will be confined, therefore, to the question whether there is proof of an agreed price. While the written contract, which is set up as an exhibit to the complaint, provided that the price to be paid for the hops, if there were no O.P.A. ceiling price on October 1, 1947 (and the evidence shows there was none), should be 'the market price generally paid growers of like quantity and quality on that date', the amended complaint does not allege the market price on October 1, 1947, and does not seek to recover it as such, but alleges an express agreement as to the market price on October 14, 1947. We quote paragraph VII of the amended complaint:

'On or about October 14, 1947, after said hops had been harvested and baled and placed in the Oregon Electric Railway Company warehouse at Salem, Marion County, Oregon, Ralph E. Williams, Jr. and Harry L. Hart sampled, weighed and inspected all of said twenty-two (22) bales of hops; and at that said time there was no governmental ceiling price on said hops, and plaintiffs and the said Ralph E. Williams, Jr. and Harry L. Hart agreed that the grower's market price, on that date for hops of the kind and quality of those so sampled and inspected and taken in by the said Ralph E. Williams, Jr. and Harry L. Hart, was eighty-three (83) cents per pound.'

There is no allegation that the parties agreed that the growers' market price on October 14, 1947, was to be paid by the defendant. But the intent of the pleader and the theory on which the case was tried are disclosed by the following colloquy between Mr. Day, attorney for the plaintiffs, and Mr. Swire, attorney for the defendant, and the court upon the trial and before the taking of testimony commenced:

'Mr. Swire: It is the defendant's understanding of the issues of this case, based upon the pleadings, that the factual and legal issues are these: (1) whether or not the defendant accepted the hops which are the subject of this action; (2) whether or not the parties agreed to the payment for the hops as alleged and set forth in the plaintiffs' complaint. I think that is all.

'Mr. Day: It is further stipulated that all facts outside of the foregoing contentions of the defendant need not be proven. (Discussion, off the record.)

'Mr. Swire: I am not admitting the price. I admit the only other issue is as to whether or not the defendant accepted the hops. If you think you have to prove the quality of the hops in order to establish your price, you will have to carry that burden. I cannot admit the quality of the hops. (Discussion, off the record.)

'The Court: You are going to prove that there was an acceptance of the hops and that there was an agreed price.

'Mr. Day: Yes.

'The Court: And any other proof is incidental to that issue?

'Mr. Day: Yes.

'Mr. Swire: Yes.

'Mr. Day: And that will shorten the case considerably.

'Mr. Swire: Yes, it will.'

The written contract did not call for an agreed price in the sense that we are satisfied the term was used by court and counsel in the foregoing colloquy. The contract fixes the standard by which the price would be determined, i. e., the...