Watson v. Oregon Moline Plow Co.

Decision Date24 June 1924
PartiesWATSON v. OREGON MOLINE PLOW CO.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Multnomah County; Fred W. Wilson, Judge.

Action by H. B. Watson against the Oregon Moline Plow Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John Manning, of Portland (Manning & Harvey, of Portland, on the brief), for appellant.

E. K Oppenheimer, of Portland (Wilbur, Beckett & Howell, of Portland, on the brief), for respondent.

McCOURT J.

This is an action to recover damages for the breach of a contract for the sale and purchase of 10 farm tractors and equipment pertaining thereto, and granting to the Western Implement &amp Seed Company, a copartnership in which plaintiff was a partner, the exclusive right to sell, in a designated territory, tractors and farm machinery manufactured by the Moline Plow Company of Moline, Ill. In his complaint plaintiff charged that defendant at the time part performance was due upon its part, wrongfully repudiated the contract in its entirety. Plaintiff demanded damages in the amounts following: $115 expended in preparing to sell tractors, for stationery, advertising, and demonstrating the machines $1,500 for injury to business; and $537.20 upon each tractor-- or a total of $5,372, the profits plaintiff estimated the copartnership would have realized if it had not been prevented by defendant from performing the contract.

Defendant, by its answer, denied all the material allegations of plaintiff's complaint, except the incorporation of defendant, and pleaded affirmatively, among other things: (1) That the writing referred to in plaintiff's complaint was merely a proposal made by the Western Implement & Seed Company to defendant for a dealer's contract and the purchase of tractors, which proposal was never accepted by defendant; (2) that the alleged contract was abandoned by the partnership; and (3) that the Western Implement & Seed Company bought and sold tractors from others to supply its customers, and could have secured for sale tractors of other makes, which it could have sold at as great or greater profit than it could have realized under the contract sued on.

The new matter in the answer was denied in plaintiff's reply. A jury trial resulted in a verdict and judgment in favor of plaintiff for $3,612.

Defendant appeals, and in its assignment of errors complains of the action of the trial court: (1) In overruling its motion for nonsuit seasonably interposed; (2) in admitting certain evidence; (3) in excluding other evidence; and (4) in giving certain specified instructions to the jury.

The decision of the questions raised by defendant's assignments of error requires a brief review of the evidence adduced at the trial. Prior to August 9, 1918, and thereafter up to September 1, 1918, the plaintiff H. B. Watson, J. D. Hansen, and Sherrill Fleming were employed by Frank Everett & Co., a concern doing a hardware and implement business at Chehalis, Wash. Watson was employed as manager of, and Hansen held stock to the amount of $5,000 in, Frank Everett & Co. That concern was then the authorized dealer and distributor in the immediate territory of the agricultural implements manufactured by the Moline Plow Company of Moline, Ill.

On the 9th day of August, 1918, Watson, Hansen, and Fleming entered into an agreement of copartnership for the purpose of engaging in the implement and farm supply business at Chehalis, Wash., the same to be conducted under the active supervision of Watson. The partnership agreement provided that the partners should furnish capital in the following amounts: Watson, $400; Hansen, $1,000; Fleming, $1,000; and that Hansen should loan the firm approximately $3,000. They adopted the firm name of "Western Implement & Seed Company." Whether any of the above sums of money were advanced or loaned to the partnership does not appear from the evidence.

The defendant is an Oregon corporation, engaged in the business of distributing throughout the states of Oregon, Washington, and Idaho farm machinery and agricultural implements manufactured by the Moline Plow Company of Moline, Ill.

After some negotiations with one E. E. Gilbert, a traveling salesman employed by defendant, plaintiff, acting in behalf of the partnership, on August 27, 1918, forwarded to defendant, at its office in Spokane, Wash., the check of plaintiff drawn upon the Security State Bank of Chehalis, Wash., for $300 in favor of defendant, together with a proposed contract, the form and terms of which material to this controversy follow:

"Moline-Universal Tractor, Model D.
"Sales Contract.
"Oregon Moline Plow Co. (Incorporated), of Spokane hereinafter called 'company' and Western Seed and Implement of Chehalis, Wn., in the county of Lewis and state of Wash., hereinafter called 'dealer,' contract this 27th day of ______, A. D. 191--, as follows:
"The company sells and the dealer buys the goods ordered in this contract, subject to the conditions hereinafter enumerated to be shipped according to schedule shown herein.
"The dealer agrees to sell said tractors in the following described territory only, Lewis, Pacific, Cowlitz, Thurston and Grays Harbor counties inclusive, and herewith deposits with the company $300.00; said deposit to be refunded in cash to the dealer by the company when the last of the above-ordered tractors shall have been shipped and paid for and to be retained by the company as liquidated damages in case the dealer fails to accept and pay for all tractors purchased herein. If the dealer fails to accept shipments as made each per schedule the company may, at its option, cancel this contract and retain said deposit as liquidated damages. * * *
"The prices named herein apply to this order only. Subsequent orders at prices then prevailing.
"The dealer agrees that in case he fails to furnish in any month shipping instructions for the number of tractors specified for that month in the schedule of shipments below specified, company may, at its option, ship said tractors, on which no shipping instructions have been received, to dealer. On such shipment sight draft to be made on dealer through Security State Bank, Chehalis, Wash., which is authorized to pay same on presentation of draft with bill of lading attached.
"Said company will allow said dealer a discount of 15% from above-specified prices on each tractor shipped and paid for under this contract. An additional discount of 5% from the specified prices on each tractor will be allowed dealer by company when three tractors have been shipped and paid for under this contract; such 5% additional discount will not be allowed unless three tractors have been shipped and paid for. A discount of 20% will be allowed by company to dealer from above-specified prices on each tractor over three in number, shipped and paid for under this contract. Discounts are payable only to dealer when the purchase price is paid in full; no discount will be allowed dealer if tractor is refused by purchaser. The discounts specified herein include and are in full for all compensation for services of dealer, both before and after the sale, cost of unloading, handling, telegraphing, telephoning, exchange, advertising or any other expense or outlay by the dealer in connection with his agency. Said dealer agrees as follows:
"1. To use his best efforts in canvassing and working for the sale of Moline-Universal tractors and recommending them in preference to all others, and will furnish a list of all prospective purchasers of tractors to the company, and will report within thirty days on all prospects for sales referred to him by the company.
"2. To take from each customer an order on the printed form furnished by the company, which form contains a written warranty printed thereon and said dealer will make no other warranty; to send to company original order blanks with shipping instructions, all terms and agreements thereon.
"3. To offer, advertise, and sell the tractor on terms which shall provide that tractor shall be shipped with bill of lading attached to sight draft for the price of said tractor with exchange and collection charges. Prices f. o. b. cars, Moline, Illinois; purchaser to pay back freight in case shipment is made from any point except Moline, Illinois. Tractors to be shipped in the name of the company and title to remain vested in it until fully paid, when tractor becomes the property of the purchaser. If purchaser does not pay the sight draft covering balance of purchase price promptly, then the payment accompanying order on the deposit is forfeited and shall be retained by the company as agreed and liquidated damages.
"4. To accept the general guaranty of the company as its warranty on the tractor, which warranty is printed elsewhere in this contract and is made a part of this contract.
"5. In case factory expert's services are required on any tractor, said dealer shall notify the company and give it ample time to send an expert to demonstrate the tractor and agrees that in case it is shown that the trouble was due to the operator and not in the tractor, the dealer agrees to pay the company five dollars ($5.00) per day for the expert's time and services, together with his necessary railroad and hotel expenses for his trip from and back to Moline, Illinois. To keep in his employ during the period of this contract an expert, competent to render all services in connection therewith; said expert to accompany company's factory expert when said factory expert is used on mechanical or educational services.
"6. Not to sell tractors outside of territory assigned above, and if tractor is sold to be used outside of said territory, said dealer shall forfeit his discount and agrees that such
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2 cases
  • Crim v. Thompson
    • United States
    • Oregon Supreme Court
    • October 21, 1924
    ... ... and 27, Oregon Homes, Clackamas county, Or., according to the ... duly recorded ... ...
  • Herr v. Brakefield
    • United States
    • Washington Supreme Court
    • July 11, 1957
    ...(2d ed.) 253-54; Hunter v. Waynick, 67 Iowa 555, 25 N.W. 776; Bender v. Hemstreet, 12 Misc. 620, 34 N.Y.S. 423; Watson v. Oregon Moline Plow Co., 112 Or. 414, 227 P. 278. There was no finding that the sale of the herd effected a dissolution of the partnership or a breaking up of its farming......

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