Steiger v. Fronhofer

Decision Date08 June 1903
Citation72 P. 693,43 Or. 178
CourtOregon Supreme Court

Appeal from Circuit Court, Baker County; Robert Eakin, Judge.

Action by George Fronhofer against John Steiger. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover a balance alleged to be due the plaintiff on a contract for the sale and delivery of sheep. It is alleged in the complaint that on or about the 20th of September, 1901, the plaintiff sold and delivered to the defendant 177 ewe sheep, at the agreed price of $2.50 per head, and 20 lambs, at the agreed price of $2 per head amounting in the aggregate to the sum of $482.50; that no part thereof has been paid, except the sum of $82.50; and that the balance is due and payable. The answer denies the contract as alleged in the complaint, except as thereinafter set out, and for an affirmative defense avers, in substance that on or about the 20th day of September, 1901, the plaintiff and defendant entered into a contract whereby the defendant agreed to purchase of the plaintiff the number of sheep and at the price alleged in the complaint; that plaintiff agreed to deliver the same when requested, and in such numbers as the defendant might elect; that the defendant at the time was engaged in the butchering business at Baker City, and the sheep he bought were intended for such purpose--a fact well known to the plaintiff; that notwithstanding the agreement, plaintiff delivered sheep to him in a diseased and unhealthy condition, all of which, with the exception of 41 ewes and 6 lambs, were wholly unfit for use in his business; that he did not discover their condition until some time after their receipt, and that immediately upon such discovery he notified the plaintiff that he could not use them, and that he held them subject to plaintiff's order; that by reason of the diseased condition of the sheep, and because they were wholly unfit for the purpose for which they were purchased, he was obliged to, and did, care for them, and pay out therefor the sum of $761.20, for which he asks judgment against the plaintiff. The reply denies all the material allegations of the answer. The evidence tends to show that the defendant went to the corral of the plaintiff, and inspected a band of about 2,000 head of sheep therein, for the purpose of buying some for butchering; that after making the examination he agreed to take 177 ewes, at $2.50 a head, and 20 lambs, at $2 a head that he did not have time on the day of his examination to make the selection himself, but agreed to leave that to the plaintiff, and directed him to put the sheep, after they had been segregated from the band, in a pasture near by belonging to one Worley, engaging to take care of them himself thereafter. On the next morning the plaintiff, as he testifies, separated the requisite number of sound, prime mutton sheep from the band, and put them in Worley's pasture for the defendant, as directed. A few days later he called upon the defendant for his pay, and received $82.50 thereon. About October 10, 1901, Worley took 20 head of sheep to Baker City, where they were delivered to and butchered by the defendant, and on the 27th or 28th of the same month 22 more were taken and used by him. The rest of the sheep remained in the pasture until about the 20th of November, when Worley drove them down to Baker City; but at that time they were diseased and unfit for mutton, which was the first that defendant knew of their unsuitable condition. The defendant testifies that a few days later he notified the plaintiff "that the sheep was in very poor condition and diseased, and had the scab, and I could not use them, and I did not like to make any trouble for him. He should let me know what he wanted to do. I asked him to say what he wanted to do." Receiving no answer to this letter, he again wrote to the plaintiff on the 11th of December, saying: "As I wrote you before the sheep were affected and I had to pay Willett (Worley) for dipping them; then they broke out again and I had to have them dipped again. I had the stock inspector look at them again, and I guess they are about all right now. I have done all I could to protect you, so if you will do the right, all right; if not, you can take the sheep back and be involved in a lawsuit." The defendant also gave evidence tending to show the cost and expense he had incurred in taking care of the sheep, and, at the conclusion of the evidence, requested the court to charge...

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7 cases
  • F. C. Austin Co., Inc. v. J. H. Tillman Co.
    • United States
    • Oregon Supreme Court
    • July 25, 1922 remembered that the parties contracted for a machine which was not yet in existence when they made the agreement: Steiger v. Fronhofer, 43 Or. 178, 183 (72 P. 693); Lenz v. Blake, 44 Or. 569 (76 P. 356). If, on other hand, the parties intended to agree that the defendant could keep the h......
  • Feeney & Bremer Co. v. Stone
    • United States
    • Oregon Supreme Court
    • March 19, 1918
    ... ... machine which was not yet in existence when they made the ... agreement. Steiger v. Fronhofer, 43 Or. 178, 183, 72 ... P. 693; Lenz v. Blake, 44 Or. 569, 76 P. 356. If, on ... the other hand, the parties intended to ... ...
  • McGregor v. Oregon R. Co.
    • United States
    • Oregon Supreme Court
    • January 28, 1908 the conclusion we have reached on the merits of the controversy, a consideration of this point becomes unnecessary. Steiger v. Fronhofer, 43 Or. 178, 72 P. 693. action is based upon the common-law liability of the defendant, which, after denying any negligence on its part, sets up four d......
  • Mine Supply Co. v. Columbia Min. Co.
    • United States
    • Oregon Supreme Court
    • August 21, 1906
    ... ... old-style mill, there was a breach of the contract, for which ... the plaintiff is liable in damages ( Steiger v ... Fronhofer, 43 Or. 178, 72 P. 693; Lenz v ... Blake, 44 Or. 569, 76 P. 356), and the fact that it made ... an effort to use ... ...
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