Miles v. Sabin

• Decision Date: 12 November 1918
• Citation: 175 P. 863,90 Or. 129
• Parties: MILES v. SABIN ET AL.
• Court: Oregon Supreme Court

175 P. 863

90 Or. 129

MILES v. SABIN ET AL.

Supreme Court of Oregon

November 12, 1918

Department 2.

Appeal from Circuit Court, Linn County; George G. Bingham, Judge.

Action by Struble Miles against R. L. Sabin and another. Judgment for plaintiff, and defendants appeal. Reversed, and cross-complaint dismissed.

The defendant John Deere Plow Company, hereinafter referred to as the "plow company," is an Illinois corporation engaged in the manufacture and sale of farming machinery and duly licensed to transact business in the state of Oregon. The plaintiff is a merchant doing business at Brownsville in this state. On March 2, 1916, plaintiff and defendant entered into a written agreement, known as a general implement contract, under which the plow company promised to furnish goods, wares, and merchandise to the plaintiff until November 1st of the same year, on the terms and conditions therein stated. The contract provides:

"First. The terms and conditions of sale herein set forth apply to all goods ordered herein, and to all subsequent orders whether given by mail, telephone, telegram, verbally or otherwise, during the life of this contract, which is to remain in force and effect until November 1, 1916, and shall apply to all orders given and accepted subsequent thereto, until the next annual general implement contract between the parties hereto is made, approved and in effect it being understood, however, that subsequent orders accepted by the plow company shall be governed, as to prices, by the origin of shipment, as shown on the plow company's current price list."

"Fourth. It is expressly agreed that the title to and ownership of all goods delivered to and held by the second party under this contract shall remain vested in the plow company unless expressly surrendered by it in writing signed by an officer thereof, and said goods shall be held subject to its order until fully paid for in money. Sales at retail may be made by the second party before payment, but only in the regular course of business, and the second party has no authority to make sales in bulk. Nothing in this contract shall release the second party from paying the agreed price. Notes of the second party or his customers, taken by the plow company, are not accepted as payment."

"Sixth. The second party agrees to give his notes, maturing as herein provided, for all goods shipped by the plow company, upon receipt of same or on any subsequent date, at the option of the plow company, and whenever requested by the plow company said second party shall deliver to the plow company proceeds of sales held by said second party as hereinbefore provided amounting to twenty per cent. (20%) in excess of the amount of notes given by the second party."

Among other things, the eighth clause provides that at the termination of the contract the plow company has the option to take possession of any unsold goods and credit the amount of the invoice price thereof upon any notes or accounts of the plaintiff, and that the plaintiff shall be liable to the plow company for any depreciation in the value of the goods the amount of such depreciation to be determined by the plow company. "Any note or notes held by the plow company shall continue to be a valid obligation of the second party for the amount of such depreciation."

In the placing of an order for goods, the plaintiff signed the following specially prepared written application:

"John Deere Plow Company of Portland, Oregon, Portland, Oregon: Please ship goods specified in the within list, as per instructions and conditions contained herein, on or about ______ at once ______, 191--, or as soon thereafter as possible, for which I agree to pay according to prices, terms and conditions stated herein, based on delivery f. o. b. Portland, except on such goods as are priced f. o. b. factories.

"It is understood that the prices named herein apply to this order only, and are subject to change without notice, and clerical errors in prices herein entered may be corrected by the plow company before approval.

"The conditions of agreement, notices and warranty as they appear on pages 3, 4, 5, 6, 7 hereof are made a part of this contract, and this order is given subject thereto.

"Struble Miles."

Such an order was always subject to the approval of the plow company.

After the execution of such contract and pursuant to its terms, the plaintiff placed certain written orders with the plow company, and on May 17, 1916, executed to it his certain promissory note for $249.95, payable July 15, 1916, with interest at 8 per cent. per annum from maturity, and a certain other promissory note for $90, payable August 15, 1916, with like interest, in each of which it was provided that in the event of suit or action he would pay reasonable attorneys' fees, the amount of the notes corresponding with the respective amounts of charges for merchandise which was shipped to the plaintiff pursuant to his written application. Thereafter, before July 31, 1916, the plow company under the terms and provisions of the contract furnished to the plaintiff merchandise to the amount of $73.91, for which the plaintiff did not execute his note.

The notes and account were assigned to the defendant Sabin for collection, and for failure to pay he commenced an action against the plaintiff here in the circuit court of Linn county, to recover the amount of the notes, attorneys' fees, and the account. To defeat the action, the plaintiff filed his complaint in equity against the defendants, claiming in legal effect that he had never purchased any goods, wares, or merchandise from the plow company, and that the facts made and constituted the plaintiff a bailee of the plow company for all the goods which were shipped and delivered to him under the contract; that the notes were without consideration; and asking for a decree enjoining the prosecution of the action at law and for an accounting between himself and the defendants. The defendants filed an answer in which they set forth and allege the terms of the written contract and the placing of the written orders, and claim that under the facts such transactions were conditional sales, and that, the conditions having been waived, the plaintiff is now liable as a purchaser.

The only question to be determined on this appeal is the legal force and effect of the written instruments under consideration. The trial court found that under such instruments the plaintiff was the bailee of the plow company enjoined the prosecution of the action at law, and...