Wilhelm v. Eaves

• Decision Date: 02 November 1891
• Citation: 21 Or. 194,27 P. 1053
• Parties: WILHELM v. EAVES et al.
• Court: Oregon Supreme Court

27 P. 1053

21 Or. 194

WILHELM v. EAVES et al.

Supreme Court of Oregon

November 2, 1891

Appeal from circuit court, Multnomah county; ERASMUS D. SHATTUCK Judge.

Action by P. Wilhelm against D.W. Eaves and A.M. Plato for breach of contract. Judgment for plaintiff. Defendants appeal. Reversed.

STATEMENT BY THE COURT. This is an action to recover damages for a breach of the following agreement between plaintiff and defendants: "This agreement, made the fourteenth day of August, in the year of our Lord one thousand eight hundred and ninety, between David W. Eaves and A.M. Plato, doing business as Eaves & Plato, of the Metropolitan Market parties of the first part, and Peter Wilhelm, the party of the second part, witnesseth, that the said party of the first part, in consideration of the covenants, promises, and agreements on the part of the said party of the second part hereinafter contained, hereby covenant, promise, and agree to and with the said party of the second part that the said party of the first part will, as soon as they become possessed of the Metropolitan Market, its lease, stock fixtures, and appurtenances, all in clear title, from the administrator or representative of Todd's interest in said market, then the party of the first part will and hereby agree to make said Peter Wilhelm the superintendent of said market, with such duties as will be hereinafter described. The said party of the first part also agrees, in consideration of the services of said Peter Wilhelm as superintendent, to give said Wilhelm the free and full use of the room (known as the 'restaurant') in the east end of said market for use as a coffee-room during the continuance of said lease, and the faithful fulfillment of duties as said superintendent. And it is further agreed that whenever the rental income from stalls shall equal ($500) five hundred dollars per month, then said Wilhelm is to receive, in addition to use of said coffee-room, the sum of fifty dollars ($50) per month, and when income from stalls shall equal or exceed one thousand dollars per month said Wilhelm shall receive one hundred dollars ($100) per month for services as superintendent; and said Wilhelm agrees at such time to maintain a special night watchman in said Metropolitan Market. And the said party of the second part in consideration of said covenants, promises, and agreements on the part of said party of the first part hereinafter contained, covenants, promises, and agrees to and with the said party of the first part that the said party of the second part will and hereby agrees to act as superintendent of said Metropolitan Market; and the duties to be performed and accepted as share of the work is to see that the said market shall at all times be kept clean and in a wholesome sanitary condition; that he will have said market properly opened every morning at five o'clock; and that said market shall be kept open for the transaction of business until the hour of eight at night, excepting Saturday nights when the market must be kept open until eleven o'clock at night. He agrees further to see that rules and regulations governing said market shall be strictly enforced; that all occupants of stalls are to keep their premises in good order; and the said Wilhelm agrees to obey the parties of the first part in all matters relating to the welfare of the said market; and in the business it is understood that the said Wilhelm shall not contract any bills, order any labor performed, or do anything to bind or make the said party of the first part liable for money, excepting on the written order or authority of said party of the first part; nor shall the said Wilhelm collect any money, unless authorized to do so. Said Wilhelm accepts as pay in full such sums as hereinbefore agreed. And for the true and faithful performance of all and every of the said covenants, promises, and agreements, the said parties to these presents bind themselves, each unto the other, in the penal sum of two hundred dollars of the United States of America, as fixed, settled, and liquidated damages to be paid by the failing party to the other, their heirs or assigns; and if at any time either of the said parties shall be guilty of gross misconduct, drunkenness, or engaged in any dishonest or criminal matter, then agreement shall be void. In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. ...