Rosenau v. Lansing
| Decision Date | 27 January 1925 |
| Citation | 232 P. 648,113 Or. 638 |
| Parties | ROSENAU v. LANSING [*] |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.
Action by Ben Rosenau against C. F. Lansing. Judgment of nonsuit and plaintiff appeals. Reversed and remanded.
This is an action for damages arising from the alleged failure of C F. Lansing, defendant, to deliver 1,200 Italian prune trees to Ben Rosenau, plaintiff herein, in accordance with his written contract for the sale and delivery thereof. Trial was had, and at the conclusion of the plaintiff's evidence the defendant moved the court for a nonsuit, which motion was granted upon the ground that plaintiff failed to show that he was at the place of delivery on the day of the alleged breach. From the judgment of the court based thereon the plaintiff appeals.
W. H Trindle, of Salem (Brown & Helgerson, of Dallas, on the brief), for appellant.
John H McNary, of Salem (McNary, McNary & Keyes, and E. M. Page, all of Salem, on the brief), for respondent.
BROWN J. (after stating the facts as above).
The contract involved herein, so far as is necessary to this opinion, reads:
No. Articles. Size or Age. Dollars. Cents.
The foregoing fruit tree agreement is a printed form supplied by the defendant, and properly signed.
The terms of an agreement having been reduced to writing, the law commands that that writing be considered as containing all those terms. Hence it became the duty of the court "to ascertain and declare what is, in terms or in substance, contained therein." Or. L. §§ 713, 715, 136.
The parties disagree as to the meaning of the word "fall," as used in the contract.
Or. L. § 728.
The vendor contracted to deliver the trees in the fall of 1919. The term "fall," as used in the foregoing contract, was employed in its usual and popular sense, and in accordance with its true signification. Throughout the United States that term, when used to designate one of the four seasons of the year, embraces the three months commencing with the 1st day of September, and terminating with the last day of November. See Webster's New International Dictionary; Century Dictionary; Funk and Wagnalls' New Standard Dictionary of the English Language.
The conflicting views of the parties, as disclosed by their learned discussion relative to the popular and astronomical definitions of the term "autumn," do not affect the result of this case in any way. There is testimony supporting the contention that the buyer was, at all times mentioned in the contract, not only ready, willing, and able, but that he was anxious to perform his contract.
The contract was made in April, 1919. According to its terms, the vendor was to deliver the trees in the fall of that year, the day to be "set for delivery" by himself. He was the party clothed with the power to name the day. The vendee agreed "to come or send for the goods purchased herein on the day set for delivery." Lansing, the vendor, never set a day. He gave no notice whatever. Neither did he, at any time, attempt to make a delivery of the trees to Rosenau, the vendee.
There is testimony in the record tending to show that the plaintiff is the owner of, and resides upon, a farm situate three miles southeast of Sheridan, Or., designated in the contract as the place of delivery; that the defendant's nursery is situate near Salem, in Marion county; that the plaintiff, as stated in the contract, was desirous of improving his farm by planting thereon an orchard consisting of 1,200 prune trees; that the trees bargained for were to be from four to six feet in height, and that the price to be paid therefor was $240, or at the rate of 20 cents per tree. The record further shows that the plaintiff, due to defendant's failure to deliver the trees in fulfillment of his contract, in order to carry out his desire to improve his farm, was compelled to go elsewhere and purchase 1,200 prune trees at about 50 cents per tree for the kind and quality of trees described in the contract. Concerning his ability to meet his contract, there is testimony to the effect that the plaintiff's farm is of the value of $10,000, with an incumbrance of $2,500, and that during the whole of the period of delivery named in the contract he had in a bank at Sheridan between $500 and $600.
The record shows that the plaintiff went to Sheridan every Saturday, and at other times; but, because he could not testify that he was at Sheridan on the last day of the fall of the year named in the contract, a nonsuit was granted.
The cases discussed below are illustrative of the principle that governs the decision of this cause.
The case of Weltner v. Riggs, 3 W. Va. 445, arises from a contract to sell and deliver fruit trees. The vendee "bought of Edward Riggs 2,000 grape roots, one year old, at $16 per hundred," together with 3,200 fruit trees, "the same to be delivered this fall at Lineford," in Monongahela county, W.Va. In that case, as in this, the vendor had the option to deliver the fruit trees at any suitable time in the fall. The Supreme Court of that state held that it was necessary for the vendor to notify the vendee of the day of delivery; and, in speaking of the delivery and notice, it was said:
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Rosenau v. Lansing
...No. 2. Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge. On petition for rehearing. Petition denied. For former opinion, see 232 P. 648. Brown Helgerson, of Dallas, and W. H. Trindle, of Salem, opposed. BROWN, J. For a full statement of the facts in this case, and a copy of t......