Oregon R. & Nav. Co. v. Dumas

• Decision Date: 03 October 1910
• Docket Number: 1,812.
• Citation: 181 F. 781
• Parties: OREGON R. & NAVIGATION CO. v. DUMAS.
• Court: U.S. Court of Appeals — Ninth Circuit

181 F. 781

OREGON R. & NAVIGATION CO. v. DUMAS.

No. 1,812.

United States Court of Appeals, Ninth Circuit.

October 3, 1910

[Copyrighted Material Omitted]

W. W Cotton, Arthur C. Spencer, Dunphy, Evans & Garrecht, Ralph E Moody, Lester S. Wilson, and E. M. Barnes, for plaintiff in error.

Sharpstein & Sharpstein, W. H. Fouts, Winn & Burton, J. A. Hellenthal, A. P. black, George Clark, and W. C. Sharpstein, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The plaintiff in error contends that the complaint is fatally defective for failure to state a cause of action. A demurrer was interposed on this ground, but it was waived by an answer to the merits. In some respects the averments of the complaint are aided by the allegations of the answer. While the complaint is not as specific as the rules of good pleading require, it nevertheless contains all the essentials of a cause of action. It alleges the agreement between the parties whereby the defendant was to equip a side track to be laid to the plaintiff's orchard, and was to furnish sufficient refrigerator cars to handle the plaintiff's apple crop, estimated to be about 50 cars, to be furnished at the rate of 6 or 8 per week, as required by him. But it is said that the complaint is uncertain, in that it specifies no time at which the cars were to be furnished, and defective, in that it alleges no promise of the plaintiff to ship his crop by the defendant's road. It must be taken for granted, however, that the contracting parties made their agreement in view of the usual custom relative to such a transaction, and that they had knowledge of the time when in the ordinary course the crop would be moved. Nor does the complaint fail to show that the contract was mutually binding. It alleges that it was mutually agreed that the plaintiff would ship all his crop of apples over the defendant's road.

At the close of the testimony, the defendant moved 'that the court direct the jury to return a verdict in favor of the defendant,' and error is assigned to the order of the court overruling the motion. It would be a sufficient answer to this assignment of error to point to the fact that the ground on which the motion was made does not appear to have been presented to the court below. But, assuming that the ground was that which is now urged in this court, namely, that the testimony was insufficient to show that there was a valid and enforceable contract, we find no error in the denial of the motion. There was evidence that the plaintiff's orchard was within reach of the Northern Pacific Railroad, as well as that of the defendant; that he had entered into negotiations with the Northern Pacific Company for the construction of a spur to handle his crop for the year 1907, when he was approached by agents of the defendant, with whom negotiations were had which culminated in the contract which is sued upon. There was evidence that the defendant refused to construct a side track for the use of plaintiff, except upon the express condition that all of his apple crop be shipped over its road; that said agents and the plaintiff made an estimate of the quantity of the crop, and the number of cars requisite for the shipment of the same; and that the defendant definitely promised to furnish cars sufficient for the prompt handling of the entire crop. It was further shown that the plaintiff exhibited to said agents a written contract whereby he had sold his crop to an eastern purchaser. That contract was admitted in evidence, and it shows that the shipments were to begin between September 10th and 15th, and to end about November 20th, and there was testimony in the record to show that those dates were agreed upon between the parties to the action. There was further evidence to show the failure and refusal of the defendant to furnish cars as agreed upon, and the consequent damages to the plaintiff.

Error is assigned to the exclusion of evidence offered by the defendant to sustain its defense that it made careful investigation of the apple crop likely to be offered for shipment in the year 1907, and made adequate provision for what could reasonably be expected, that the crop was an extraordinary one, far in excess of any previous year, that there was an extraordinary demand...