State ex rel. Salem King's Products Co. v. La Follette

• Decision Date: 22 March 1921
• Citation: 100 Or. 1,196 P. 412
• Parties: STATE EX REL. SALEM KING'S PRODUCTS CO. v. LA FOLLETTE.
• Court: Oregon Supreme Court

196 P. 412

100 Or. 1

STATE EX REL. SALEM KING'S PRODUCTS CO. v. LA FOLLETTE.

Supreme Court of Oregon

March 22, 1921

Department 1.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Proceeding by the State, on the relation of the Salem King's Products Company, against J. W. La Follette for an alleged contempt of court. From a judgment sentencing him to be punished, defendant appeals. Reversed.

This proceeding was brought in the name of the state upon the relation of the Salem King's Products Company, a corporation, against J. W. La Follette for an alleged contempt of court. The circuit court held that La Follette was guilty of a contempt of court on account of having willfully disobeyed a preliminary injunction issued in a suit begun by the Salem King's Products Company against J. W La Follette. There was a judgment sentencing La Follette to be punished by a fine of $100, and he appealed.

Under date of July 30, 1917, J. W. La Follette entered into a contract whereby he agreed to sell to the Salem King's Products Company all the loganberries grown on 11 acres of land, owned by him, during the period of 10 years beginning with 1918 and ending with 1927. The contract fixed 4 cents per pound as the price to be paid for the loganberries; but attached to the contract and made a part of it was a rider reading as follows:

"If Salem King's Products Co. raises their buying price to other growers in 1918, or thereafter, this contract will automatically conform with that price."

The form of the contract is exactly like the contract exemplified in full in Salem King's Products Co. v. Ramp, 196 P. 401.

La Follette delivered all or at least most of the crop raised by him in 1918. He refused, however, to deliver his 1919 crop. Before and at the beginning of the picking season of 1919 the market price of loganberries had advanced to 9 cents. The Salem King's Products Company had in the spring of 1919 made certain contracts for berries at 5 cents per pound, and in addition the company had promised to pay a bonus of one-half a cent per pound to growers with whom it had made term contracts.

A few days before La Follette began picking his 1919 crop, as well as upon prior occasions, he told officers of the company that he would not deliver any berries to the corporation unless paid the market price, because, as he claimed, he was entitled under the terms of the rider to receive the market price which exceeded 4 cents per pound. The officers of the company told La Follette that the company would pay only 5 1/2 cents for the 1919 crop because, as the company claimed it was obliged to pay more than 4 cents only in the event it actually bought berries at an advanced price, and even then the advanced price actually paid by the company and not the market price constituted the measure of the price to be paid to La Follette; and since the company had actually contracted for berries at 5 cents and had agreed to pay a bonus of one-half a cent, the officers of the company told La Follette that the limit of the company's liability under the terms of the contract was 5 1/2 cents per pound. In short, the respective contentions of the litigants in the instant case are similar to the respective contentions of the parties in Salem King's Products Co. v. Ramp, 196 P. 401 .

La Follette commenced picking on or about July 1, 1919. The crop amounted "to about 33 tons." La Follette had picked about 16 1/2 tons of loganberries and had delivered all of them to the Equity Queen Canning Company when on July 10 1919, the Salem King's Products Company began a suit to compel La Follette specifically to perform his contract by delivering the remainder of his loganberries to the Salem King's Products Company and also to compel him to account for the berries which he had delivered to the Equity Queen Canning Company. The complaint was filed on July 10th, and the summons was served on July 11th. Affidavits for and against a temporary injunction were filed on July 11th and 12th; and on July 12th the circuit court issued a temporary mandatory injunction commanding La Follette to deliver the remainder of his loganberry crop to the Salem King's Products Company and commanding the Salem King's Products Company to pay directly to La Follette 5 1/2 cents for every pound of berries delivered by him, and to pay to the clerk of the court an additional 3 1/2 cents per pound to be held by the clerk until the final determination of the suit. Resolved to its final analysis, the controversy between La Follette and the Salem King's Products Company was one129 concerning the price to be paid; for La Follette was willing to sell, provided he received the market price for his berries. La Follette demanded 9 cents per pound, the market price; the company was willing to pay 5 1/2 cents; and hence the difference between 5 1/2 and 9 cents, or 3 1/2 cents per pound, was the amount in dispute. The court required the payment of 3 1/2 cents per pound to the clerk with a view of returning the money to the company in the event the court ultimately determined that the company was entitled to receive the berries at 5 1/2 cents, or of paying it to La Follette in the event the court finally decided that he was entitled to the market price. La Follette appealed, or at least attempted to appeal, from the order directing the issuance of the temporary injunction by serving and filing on July 15th a notice of appeal together with an undertaking on appeal.

On July 16, 1919, the Salem King's Products Company caused an affidavit to be filed pursuant to section 673, Or. L., as a basis for a contempt proceeding against J. W. La Follette. The affidavit recited the fact that a suit had been begun by the Salem King's Products Company against La Follette for the purpose of compelling him specifically to perform his contract for the delivery of loganberries. The affidavit related the fact that a temporary mandatory injunction had been issued and also recited the terms of the injunction. The affidavit further stated that on July 12, 14, 15, and 16, La Follette had sold large quantities of berries to the Equity Queen Canning Company and had failed to make any deliveries to the Salem King's Products Company.

On July 17th La Follette first demurred to the affidavit and then answered by filing a general denial. On the same day, July 17th, there was a trial, which terminated in the judgment and sentence involved in this appeal.

John Bayne and Roy F. Shields, both of Salem ( Smith & Shields, of Salem, on the brief), for appellant.

Prescott W. Cookingham, of Portland (James G. Heltzel of Salem, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

It must be remembered that so far as the record here discloses, up to the moment when La Follette was adjudged guilty of contempt and sentenced to pay a fine of $100, the suit in equity brought by the Salem King's Products Company v. La Follette had proceeded no further than the filing of the complaint, service of summons and complaint on La Follette, and the issuance of the preliminary mandatory injunction. The issues between the parties had not yet been defined, for the time for answering the complaint in the suit had not yet expired; nor had La Follette yet filed an answer. The record does not tell us about the result of the suit in equity; nor, indeed, is the final outcome of that litigation material here. In the instant case we are concerned with nothing except the contempt proceeding. It must be remembered, too, that, regardless of whether or not the order granting a temporary mandatory injunction is an appealable order, La Follette has an unquestioned right to appeal from the judgment declaring him guilty of a contempt because section 684, Or. L., expressly grants a right of appeal, and State v. O'Day, 41 Or. 495, 499, 69 P. 542, is a precedent for holding that the appeal from the judgment rendered in the contempt proceeding "brings up for consideration" the question of the validity of the temporary injunction, even though it be assumed or held that the order for the injunction is a nonappealable order. See, also, State ex rel. v. Gray, 42 Or. 261, 265, 70 P. 904, 71 P. 978.

In the very nature of things courts must and do have power to enforce observance of their orders by employing contempt proceedings. The power to enforce obedience is not dependent upon whether an order has been wisely or inconsiderately made. If a court has power to make a given...