Sig C. Mayer & Co., Inc. v. Smith
| Decision Date | 18 November 1924 |
| Citation | 112 Or. 559,230 P. 355 |
| Parties | SIG C. MAYER & CO., INC., v. SMITH. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Sig C. Mayer & Co., Inc., against J. R. Smith, doing business under the assumed name of J. R. Smith Company. Judgment for defendant, and plaintiff appeals. Affirmed.
This is an appeal from a judgment rendered on a verdict in favor of the defendant, who is respondent, and against the plaintiff the appellant. The action was instituted to collect the sum of $2,135 owing to the plaintiff from the defendant. The answer denies the indebtedness and alleges a counterclaim amounting to $6,663.74. The counterclaim arose out of dealings between the plaintiff and defendant wherein the defendant claimed that the plaintiff had violated a contract for the purchase by the defendant from the plaintiff of 250,000 cigars, by misbranding the cigars. According to the contention of the defendant, the cigars were to have been packed either loose in boxes with 13 on the top and marked "3 for 20 cents" or "3 in foil" with the boxes marked "3 for 20 cents." The cigars actually delivered and shipped were either loose according to the arrangement, or were wrapped "2 in foil," and all of the boxes were marked "2 for 15 cents." The defendant is a wholesale dealer in cigars, and did not discover that the boxes were so misbranded and those wrapped in foil were not according to the order until after part of them had been sold. The defendant claims that as soon as he discovered the mistake he rescinded the order. The defendant paid for the cigars before he discovered the mistake. The reply challenges the allegations of the affirmative defense and alleges that the orders given to the plaintiff by the defendant were from time to time modified and changed by the defendant with the acquiescence of the plaintiff; that the cigars actually shipped to the defendant by the plaintiff were shipped in accordance with the orders actually received that the cigars as shipped were accepted without reservation by the defendant; and that the defendant, by reason of having sold a large quantity of cigars already shipped and having paid for them, waived any right he may have had for rescinding the sale and recovering the purchase price.
At the trial the defendant admitted the indebtedness alleged in the complaint, and the issues tried were upon the allegations and denials in the affirmative answer and the reply. The verdict was for the difference between the amount claimed by the plaintiff and admitted by the defendant and the counterclaim alleged by the defendant.
The errors assigned are the court's ruling admitting the evidence in support of the counterclaim because the counterclaim, as pleaded, "did not present a cause of action"; the court's refusal to direct a verdict for the plaintiff, and the court's refusal to give certain instructions requested by the plaintiff. No exceptions were taken to the instructions given.
Sidney Teiser, of Portland (W. G. Keller, of Portland, on the brief), for appellant.
Wilber Henderson, of Portland (Henry E. McGinn, of Portland, on the brief), for respondent.
COSHOW J. (after stating the facts as above).
The issues having been tried and submitted to the jury, if there is any material evidence supporting the verdict this court is without authority to set aside the verdict, unless material error was committed in the admission of testimony, or in refusing to give the instructions requested by the plaintiff. Article 7, § 3c, State Constitution.
The counterclaim of the defendant was not moved against or demurred to. It will be construed most favorably to the defendant. So construed, it clearly states a good counterclaim. There was sufficient evidence of the counterclaim to carry the case to the jury.
The principal contention of the plaintiff is that the contract relied upon by the parties was in writing. Plaintiff's contention is that the contract was made by the following telegrams:
It will be readily seen that the contract claimed to have been framed by these three telegrams is ambiguous. The evidence offered by the defendant was not for the purpose of changing the alleged contract, but for the purpose of making intelligible its terms. Another reason why oral testimony is admissible: It appears that the plaintiff did not deliver the cigars according to the alleged contract, but delivered comparatively few of them. It was well known that the defendant was a wholesale dealer in cigars. Owing to the failure of the plaintiff to deliver the cigars as ordered that is, 100,000 of them per month, the defendant bought other cigars in order to hold his trade. Thereupon the defendant requested the plaintiff to discontinue the El Wadoras until further instructions from him. Later, an arrangement was made orally between the defendant and Marshall, the agent of the plaintiff on the Pacific Coast whereby the original order was modified by providing for the delivery of 250,000 of the El Wadora cigars in addition to the quantity that had been theretofore delivered under the original order. The cigars, thereafter delivered in compliance with the modification of the original contract, were not packed or marked as agreed upon according to the contention of the defendant. No argument or authorities are necessary for upholding the ruling of the circuit court admitting oral testimony in order to ascertain the contract between the plaintiff and the defendant. No other evidence was available.
It is earnestly contended by the plaintiff, however, that the defendant having sold a part of the cigars, and having paid for all of them prior to discovering that the cigars were not packed or branded as described in the contract, defendant's only remedy was for damages; for he, in view of having accepted the delivery of the cigars and exercised control over them inconsistent with the ownership of the plaintiff, was precluded from rescinding the contract. Plaintiff cites, in support of this contention, section 8211, Or. L., and other authorities.
This contention presents to the court the liability of the seller and buyer in mercantile transactions. These transactions have been a fruitful source of litigation, and there is apparently at least a great conflict and confusion of the authorities.
The principles involved in this litigation are completely and thoroughly discussed in an extensive note in the case of Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 P. 233, 35 L. R. A. (N. S.) 258. See, also, 2 Mechem on Sales, 1193, § 1380; Waeber v. Talbot, 167 N.Y. 48, 60 N.E. 288, 82 Am. St. Rep. 712; Pierson v Crooks, 115 N.Y. 539, 22 N.E. 349, 12 Am. St. Rep. 831; Lewiston Milling Co. v. Cardiff (C. C. A.) 266 F. 753, 764; Reed v. Randall, 29 N.Y. 358, 86 Am. Dec. 305, 308, and note page 314; Hills v. McDonald, 17 Wis. 100; Meyer v. Everett Pulp & Paper Co., 113 C. C. A. 643, 193 F. 857; Neal, Clark & Neal Co. v. Tarby, 99 Misc. 380, 163 N.Y.S. 675; Harrison v. Scott, 203 N.Y. 369, 96 N.E. 755, 38 L. R. A. ...
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