Rosenau v. Lansing

• Decision Date: 17 March 1925
• Citation: 113 Or. 638,234 P. 270
• Parties: ROSENAU v. LANSING.
• Court: Oregon Supreme Court

234 P. 270

113 Or. 638

ROSENAU v. LANSING.

Supreme Court of Oregon

March 17, 1925

Department 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 &amp 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 the contract for the sale and delivery of nursery stock, see Rosenau v. Lansing (Or.) 232 P. 648.

A familiar rule of law is stated thus:

"The cardinal principle in the construction of all contracts, including contracts of sale, is to ascertain the intention of the parties, and give effect thereto, if it can be collected from the instrument and the circumstances without the violation of some settled legal principle. So the courts in the construction of contracts of sale for the purpose of arriving at the intention of the parties may look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described." 23 R. C. L. § 147, Sales.

See also, Or. L. §§ 715-717.

This case involves the construction of an agreement for the sale and delivery of nursery stock to be planted on plaintiff's farm near Sheridan, Or. The city of Sheridan was incorporated by the legislative assembly of the state of Oregon, and the court will take judicial notice of its boundaries. Or. L.§ 729. Under the terms of the contract, the nurseryman agreed to deliver to plaintiff, in the fall of the year, 1,200 prune trees, in good condition. In order to meet the conditions set forth in the contract, it was essential that the trees, when delivered, be sound, healthy, vigorous and in fit condition, when properly transplanted, to germinate and grow. Kitchin v. Oregon Nursery Co., 65 Or. 20, 130 P. 408, 1133, 132 P. 956; Kelly v. Lum, 75 Wash. 135, 134 P. 819, 49 L. R. A. (N. S.) 1151 and note.

It must be borne in mind that the agreement under consideration involves the sale and delivery of prune trees intended, and fit, for the purpose of planting. It has been decided that where a contract relates to the sale and delivery of perishable articles, such as nursery stock, in the "fall," the vendor is required to make delivery in that part of the fall suitable for transplanting. 23 R. C. L. § 191, Sales.

This contract is in writing and should be construed as a whole, giving effect to every part thereof. It provides, among other things:

"That the entire contract is written and printed herein."

It is "written and printed" in the contract that the plaintiff agrees "to come or send for the goods purchased herein on the day set for delivery, at which time said goods are to be in good order." The seller promised to set the day for delivery at Sheridan. It is written in the contract that the nursery stock is "to be delivered at the town of Sheridan, in the fall of 1919, in good condition." The particular place in Sheridan for delivery is not named. Both the time and place for delivery in Sheridan were to be fixed by the seller. Under the provisions of the writing, the seller could have set a day for delivery of the trees at Sheridan as early in the "fall" of the year specified in the writing as delivery could have been made without injury to the health, thrift, and vigor of the young prune trees, and not earlier. He could likewise have delivered the perishable prune trees as late in the fall as he chose, provided delivery and receipt thereof might have been had without injury to them. The early days of September may, or may not, have been a suitable time for delivering the trees. Again, the last day of November may, or may not, have been a fit time to deliver fruit trees intended for transplanting. Weltner v. Riggs, 3 W. Va. 445. The period of time for delivery named in the contract embraced the entire "fall" of that year. But the contract also required that the trees be delivered in "good condition." These provisions should be read together. It was for the mutual benefit of the parties to the contract that the seller was impliedly named to fix the time for delivery. Young trees are tender. Climatic conditions affect them. From the defendant's pleadings we learn that winter began with unusually cold weather. He says the trees were frozen, but the date on which he alleges that they were frozen was subsequent to the time designated in the contract for delivery.

In the preparation of the original opinion we had, and now have, in mind a general rule in the law of sales relating to the time of delivery, which is stated as follows:

"If the seller is given the option of delivering the goods at any time within a stated period, he must, to bind the buyer, give notice of his election to deliver before the last day of the period or such

...