Wigan v. La Follett

• Decision Date: 12 June 1917
• Citation: 165 P. 579,84 Or. 488
• Parties: WIGAN ET AL. v. LA FOLLETT ET AL.
• Court: Oregon Supreme Court

165 P. 579

84 Or. 488

WIGAN ET AL. v. LA FOLLETT ET AL.

Supreme Court of Oregon

June 12, 1917

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Action by Edgar Clare Wigan and others against C. M. La Follett and another. Judgment for plaintiffs for $104.10, and plaintiffs appeal. Affirmed.

On account of the failure of the defendants to raise the quantity and quality of hops described in a certain contract of sale, plaintiffs brought this action to recover the sum of $2,100, advances made by them to the defendants for the purpose of raising the hops. The agreement was executed March 10, 1913, and the material part necessary to detail here provided that the defendants, mentioned therein as the "vendor," should complete the cultivation of about 20 acres of land then set out to hops on the farm of defendant C. M. La Follett, situated at Wheatland, Or harvest, cure, and bale the hops grown thereon in the years 1913, 1914, 1915, 1916, and 1917, in a careful and husbandmanlike manner, bargain and sell, and between the 1st and 31st days of October of such years deliver to the plaintiffs, designated in the contract as the "purchaser," at the agreed price of 14 cents per pound, 30,000 pounds of hops to be grown upon such premises "in bales of about 185 to 205 pounds each, in new 24-ounce bale cloth five pounds tare per bale to be allowed in entire lots f. o. b. boat, at Wheatland, Or.," as the purchasers might direct. Such hops were not to be of the first year's planting nor affected by spraying or mold to be of good color, fully matured, cleanly picked, free from damage by vermin, and in good order and condition, otherwise known as "prime quality," and the purchasers were to have preference and selection both as to the quantity and quality over all other persons who might thereafter make contracts in relation to said hops. It was also stipulated:

"That the vendor shall serve notice in writing on the purchaser, or his authorized agent, at Salem, Or., at least ten days before the date on which the vendor proposes to tender the delivery of said hops; but such notice shall not be sent until the entire lot is actually in bale and ready for delivery."

The purchasers agreed to buy 30,000 pounds of said hops, and pay 14 cents for each pound thereof, less advances made and interest thereon, conceding the right of the plaintiffs to inspect the same before acceptance, and of accepting--

"any part less than the whole of the hops so bargained should for any cause the quantity of hops of the quality, character, and kind above described and which shall be raised, picked and harvested from said premises and tendered to him for acceptance be less than the amount bargained for."

It was further provided that to enable the vendors to cultivate and harvest the crop, 7 cents for each pound of hops which might be grown upon said lands, not exceeding $2,100 of the purchase price, should be advanced, $600 about April 1st, and $1,500 on or about September 1st, for each contract year. Paragraph V of the contract is in part as follows:

"The parties hereto further agree that should any breach be made in the terms of this contract by the purchaser, the vendor not being in default, the vendor may recover from the purchaser, as liquidated damages, a sum equal to the difference between $4,200.00 and the value of thirty (30,000) thousand pounds of hops of the quality and in the condition above specified and hereby contracted, at the market price thereof in Salem, Oregon, on October 31, 1913 1914, 1915, 1916, 1917, less the amount of all advances made by the purchaser to the vendor by the terms of this agreement, with interest thereon at the rate of 6 per cent per annum, and the purchaser agrees to pay the said damages on demand, and should any breach be made in the terms of this contract by the vendor, the purchaser not being in default, the purchaser may recover from the vendor, as liquidated damages, a sum equal to the difference between $4,200.00 and the value of thirty (30,000) thousand pounds of hops of the quality and in the condition above specified and hereby contracted, at the market price thereof in Salem, Oregon, on October 31, 1913-14-15-16-17, and in addition thereto all moneys which the purchaser may have advanced to the vendor in pursuance hereof and interest on the advances as above provided, and the purchaser agrees to pay the same upon demand [here follows a provision that the purchasers shall have a lien upon the hops as security for the advances which they may make and for such damages as they may sustain by reason of the default of the vendor and authorizes them to foreclose the same as a mortgage if such default be made]; but the vendor shall not be responsible for any default in the provisions of this contract, except to repay advances and interest, by reason of the shortage of the crop of hops to be raised upon said premises, if such shortage be occasioned by unfavorable seasons and could not be, for this reason, prevented by him: Provided, however, that nothing in this agreement contained shall be construed as a waiver by either party of the right to sue for the specific performance of this agreement, or as the exclusion or waiver of any other right or remedy which such party may have at law or in equity, or which may be vouchsafed him by this agreement. * * *"

In pursuance of this contract plaintiffs advanced to defendants the sum of $600 on April 1, 1914, and $1,500 on September 1, 1914. In that year defendants raised and harvested from the farm described 28,085 pounds of hops. The plaintiffs claim that these hops were not of the quality specified in the contract, but were moldy, not cleanly picked, not of good color, and were broken and the product of the first year's planting; that they were of the grade designated by the hop trade as "commons" and "mediums." After the hops were baled and stored in defendant La Follett's warehouse the agents of the plaintiffs went to his farm for the purpose of inspecting and, as they contend, of accepting and paying for the hops. They inspected eight samples at this time, which, according to their contention, proved to be uncleanly picked, broken, moldy, and not of the quality described in the agreement. They assert that further privilege of inspection was denied them, unless they would consent to accept the whole of the hops. Plaintiffs duly demanded a return of the $2,100 which was refused by the defendants. Consequently, on November 4, 1915, plaintiffs commenced this action setting forth the contract, asserting the breach of the same, the advances made, the failure of the defendants to raise the quality or quantity of hops specified therein, and their failure to permit the plaintiffs to inspect the hops. The defendants filed an answer admitting the advances, denying that the hops did not comply with the quality stipulated in the contract, or that they refused to permit the plaintiffs to inspect said hops, and denying any failure on their part to fulfill the terms of the agreement, and alleging as a further answer and counterclaim that they fully performed the contract on their part and produced 28,085 pounds of hops; that plaintiffs inspected the same on October 31st of that year and arbitrarily and wrongfully rejected them, after which the defendants sold the hops at the best price obtainable, to wit, $1,936. They further allege that they sustained general damages in the sum of $1,000; that they were entitled to a commission of $140 for selling such hops, and pray for a judgment of $1,050.90. A reply was filed putting in issue the allegations of the answer. The action was tried to the court and jury resulting in a verdict in favor of the plaintiffs for $104.10. From a judgment entered thereon plaintiffs appeal, assigning errors.

John H. McNary and Roy F. Shields, both of Salem (McNary, Smith & Shields, of Salem, on the brief), for appellants. Thos. Brown, of Salem, and W. T. Vinton, of McMinnville (Carson & Brown, of Salem, and McCain, Vinton & Burdett, of McMinville, on the brief), for respondents.

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

The first contention made by the plaintiffs is that the court erred in its refusal to permit W. B. Magness, a witness for the plaintiffs, to answer a question asked for the purpose of laying the foundation for showing that the witness had made contradictory statements. Referring to the time of the inspection of the hops in question this witness testified as follows in answer to interrogatories by plaintiffs' counsel:

"Q. You may state whether or not there was mold in this sample. A. There was a light trace of mold, three or more berries. Q. Did Mr. La Follett look at this sample? A. Not that I know of. * * * Q. How many berries did Mr. Durbin show you that were moldy? A. Two or three; I couldn't say exactly. * * * Q. Didn't Mr. Durbin show you off the top of the sample, some hops that were moldy? A. I couldn't say whether he showed me hops off the top or whether he split that sample; I couldn't say. I forget. Q. Didn't you tell me yesterday about noon in the office of Mr. Conner of this city, there being present Mr. Shields, Mr. Durbin, and myself and Mr. Conner's stenographer, that Mr. Durbin showed the samples that he drew, the last sample rather, and asked you to look at it, and that you did look at this sample, and you found lots of black mold in the top of it? A. No, I never told you I found lots of black ______."

Objection being made by counsel for defendants to such question, the court sustained the same. The witness had, however practically answered it, and such answer was not withdrawn from the consideration of the jury, nor was any motion made to strike out the same. It is the contention of the plaintiffs that they...