William Hanley Co. v. Combs

• Decision Date: 23 October 1906
• Citation: 87 P. 143,48 Or. 409
• Parties: WILLIAM HANLEY CO. v. COMBS.
• Court: Oregon Supreme Court

87 P. 143

48 Or. 409

WILLIAM HANLEY CO. v. COMBS.

Supreme Court of Oregon

October 23, 1906

Appeal from Circuit Court, Grant County; George E. Davis, Judge.

Action by the William Hanley Company against J.D. Combs. Judgment for the defendant, and the plaintiff appeals. Reversed.

This is an action to recover $3,300 advanced by the plaintiff on an executory contract for the sale of personal property. The complaint alleges: That on August 2, 1905, the plaintiff and defendant entered into the following written contract "This agreement, entered into this 2nd day of August 1905, by and between J.D. Combs, of John Day, Or., and Wm Hanley, or., Mgr., of Burns, Ore., for and in consideration of thirty-three hundred dollars ($3,300.00) and further consideration hereinafter stated, that the said J.D. Combs sells to Wm. Hanley, Mgr., 600 head of three and four year old steers, now in Bear Valley and vicinity, at $2.65 per hundred, delivered and weighed at Baker City, Or., on or about 1st day of September, 1905, cattle to be taken off feed and water at six o'clock in the morning and weighed at two o'clock evening, it is further agreed that said cattle shall be passed as to quality, in Bear Valley, before starting and that no thin-fleshed or rough cattle, or Holstein or Jersey blood shall be accepted. [ Signed] J.H Combs, Wm. Hanley, Mgr." That under and by virtue of the terms of this contract the plaintiff advanced and paid to the defendant $3,300 on account of the purchase price of the cattle mentioned and referred to therein, but that defendant has wholly failed, neglected, and absolutely refused to deliver the cattle or any part thereof at Baker City or elsewhere, or at all. That plaintiff has demanded a repayment to it of the moneys so advanced, which has been refused. The complaint prays for judgment for such amount, with interest from the commencement of the action. The answer admits the making of the contract set out in the complaint and the payment of the money by the plaintiff, and affirmatively alleges that on August 20, 1905, the defendant tendered to the plaintiff at Bear Valley 600 head of cattle of the kind and quality specified in the contract for the purpose of being passed as to quality, but that plaintiff, without cause, failed, neglected, and refused to pass such cattle or any part thereof, except 222 head, whereupon defendant elected to rescind the contract and thereafter sold and disposed of the cattle to other parties. The reply put in issue the new matter alleged in the answer. After the commencement of the action a writ of attachment was sued out by the plaintiff and certain personal property seized by virtue thereof, but on motion of the defendant the attachment was dissolved. A trial was thereafter had and a verdict rendered in favor of the defendant. From the judgment entered on such verdict plaintiff appeals, complaining that the court erred in dissolving the attachment, in the giving of certain instructions to the jury, and in the admission of evidence.

W.F. Butcher and M.D. Clifford, for appellant.

W.W. Wood, for respondent.

BEAN C.J. (after stating the facts).

The argument in support of the motion to dissolve the attachment is that the complaint does not state facts sufficient to constitute a cause of action, because it does not allege that the plaintiff was ready, willing, and able to perform the contract on its part, or that it tendered or offered to pay the balance of the purchase price. This is not an action for a breach of the contract between the plaintiff and defendant. It is an action to recover back money paid by the plaintiff thereon as money had and received by the defendant for its use, on the ground that the contract has been wrongfully and unlawfully rescinded and put an end to by the defendant. In such an action the plaintiff is not required to allege or prove an offer of performance on its part, nor readiness to perform, whatever might be the rule in an action to recover damages for a breach of the contract. Main v. King, 8 Barb. (N.Y.) 535; Monroe v. Reynolds & Upton, 47 Barb. (N.Y.) 574. If one of the parties to a contract wrongfully refuses to comply therewith, the other party, if not himself in fault, may elect to treat the contract as rescinded and recover back the consideration, or whatever else has been paid thereon. Bishop, Contracts, § 834. And he is not obliged to allege or prove a tender or offer to perform the rescinded contract. An action to recover back the money paid on a contract which has been wrongfully rescinded is in form assumpsit, and is on an implied contract within the meaning of the attachment laws of this state. 2 Enc.Pl. & Pr. 1016; S.C.V. Peat Fuel Co. v. Tuck, 53 Cal. 304. The complaint therefore states a cause of action, and the motion to dissolve the attachment should have been denied.

The record discloses that on August 20, 1905, the plaintiff's manager, William Hanley, and the defendant met by agreement in Bear Valley for the purpose of passing upon the quality of the cattle to be subsequently delivered by the defendant to the plaintiff at Baker City in pursuance of the written contract; that defendant had at the time and place stated a band of 578 head of cattle which he offered to Hanley for the purpose of having him pass upon the quality; that after Hanley looked the band over he selected therefrom some 200 or 250 head as complying with the contract and such as he would be willing to accept when delivered, but the defendant, being dissatisfied with the manner in which Hanley was cutting the cattle, notified him that he would refuse to be further bound by the contract, and subsequently sold the cattle to other parties, and never delivered or offered to deliver to plaintiff any cattle whatever under the contract in question. There is much testimony in the...