Oregon Growers' Co-op. Ass'n v. Riddle
| Decision Date | 05 January 1926 |
| Citation | 116 Or. 562,241 P. 1011 |
| Parties | OREGON GROWERS' CO-OP. ASS'N v. RIDDLE. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.
Suit by the Oregon Growers' Co-operative Association against Ernest D. Riddle. From an order sustaining demurrer to plaintiff's petition and dismissing suit, plaintiff appeals. Reversed and remanded, with directions.
On November 21, 1919, defendant executed one of plaintiff's standard form of marketing agreements. By the terms of this contract the association agrees to buy, and the grower agrees to sell and deliver to the association, "all of the agricultural or horticultural products, of the varieties specified below, grown by or for him, or acquired by or for him at any place in Oregon, during the years 1920, 1921 1922, 1923 and 1924, that he intends to sell or market or consign, or deliver, directly or indirectly for sale or marketing or consignment to any person or corporation whatsoever." Below the signature of the parties to the contract appear the following notations:
A copy of the agreement is set forth verbatim in the abstract of record. A copy of this form of agreement is set out in hæc verba in the opinion in the case of Or. Growers' Co-op. Ass'n v. Lentz et al., 107 Or. 561 commencing at page 566 (212 P. 811); the only difference in the contract in that case and the present case being as to date and the name of the grower signed thereto, and the notation of the acreage at the end of the agreement, which describes a certain number of acres or loganberries.
During the year 1921, the defendant grower produced prunes on the 15 acres of land mentioned in the foregoing notation, but sold and delivered them to persons other than plaintiff herein. In 1922 defendant again produced prunes on the same 15 acres of land, but at the time when the prunes were ready to be picked and marketed, defendant informed plaintiff that he refused to deliver his prunes, or any part thereof, to plaintiff. On September 15, 1922, plaintiff instituted this suit to compel specific performance of the above-mentioned contract, to obtain an injunction against the delivery of prunes to any one other than to plaintiff, and for accounting as to deliveries made in violation of the contract; the necessary facts being set forth in plaintiff's complaint with a copy of defendant's marketing agreement attached thereto. To this complaint defendant interposed a general demurrer the contention being that on the face of the complaint equity had no jurisdiction of the subject-matter therein contained and that the complaint did not state facts sufficient to constitute a cause of suit against defendant. On January 11 1922, an order was entered sustaining the demurrer. Plaintiff failed to further plead, and on January 23, 1923, an order was entered dismissing plaintiff's suit. Plaintiff appeals.
Prior to the filing of its complaint herein, this plaintiff had brought suit in the circuit court for Marion county, Or., against August Lentz, also a member of the plaintiff association, to compel specific performance of his marketing agreement and to obtain an injunction against delivery of his loganberries to any one other than to plaintiff and for accounting as to deliveries made in violation of the contract. The contract therein sued upon, as we have stated, was identical in terms with that in the instant case, except that it referred to loganberries instead of prunes. The complaint therein filed was practically a duplicate of that in the instant case, and the relief therein sought was the same as that prayed for in this case. The Lentz Case went to trial on its merits, and on August 31, 1922, a decree was entered enjoining and restraining August Lentz and his codefendant, Benjamin Lentz, from a delivery of loganberries grown upon the land mentioned in the marketing agreement to any person other than the association, until January 1st, 1925, and for attorney's fees and costs. The decree also provided that if delivery was not made to the association, the association should then recover from August Lentz liquidated damages in the amount set forth in the contract. Thereafter August Lentz and Benjamin Lentz prosecuted an appeal to this court, and on February 13, 1923, a short time after the suit in the instant case was dismissed, this court handed down its opinion affirming in all respects the decree of the circuit court for Marion county.
H. F. Cabell and Alfred A. Hampson, both of Portland (Dey, Hampson & Nelson and C.J. Young, all of Portland, and Rice & Orcutt, of Roseburg, on the brief), for appellant.
B. L. Eddy, of Roseburg (George Neuner, of Portland, on the brief), for respondent.
BEAN, J. (after stating the facts as above).
The decision of this court, written by Mr. Justice Rand, in affirming the injunctive decree granted by the circuit court for Marion county, in the case of the Oregon Growers' Co-op. Ass'n. v. Lentz, supra, necessarily held that the complaint in that suit which is substantially like the one in the present suit is not demurrable. In the Lentz Case, at page 587 (212 P. 819), we find recorded the following:
"As the contract in question is not oppressive, unjust or illegal, and its enforcement by mandatory injunction restraining the defendant from selling the products contracted for, to any one except the plaintiff, will work no injustice or hardship upon the defendant, and as plaintiff is clearly entitled to the relief granted, the decree of the circuit court is affirmed."
It is contended in the present case, as it was in the Lentz Case, that the marketing agreement lacked mutuality of remedy; that is, the grower could not have specific performance against the association because the duties rested upon the association were in the nature of personal services, and therefore it was inequitable to grant specific performance at the suit of the association. This question is fully covered in the opinion in the Lentz Case at page 583 (212 P. 818) of the report, which reads as follows:
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