Wright v. Morton

• Decision Date: 29 May 1928
• Citation: 125 Or. 563,267 P. 818
• Parties: WRIGHT v. MORTON ET AL.
• Court: Oregon Supreme Court

267 P. 818

125 Or. 563

WRIGHT v. MORTON ET AL.

Supreme Court of Oregon

May 29, 1928

Department 1.

Appeal from Circuit Court, Jackson County; C. M. Thomas, Judge.

Action by W. T. Wright against J. J. Morton and others, a corporation doing business as Morton & Sons. From a judgment for plaintiff, defendants appeal. Affirmed.

Rand C.J., dissenting.

This is an action to recover the sum of $875.33, which the plaintiff alleges is a balance due arising out of the sale of a quantity of wheat by the plaintiff to the defendants.

The complaint alleges that December 8, 1924, the plaintiff and the defendants entered into an agreement, whereby the plaintiff undertook to deliver to the defendants for storage a quantity of wheat, and that the defendants agreed to store it. Continuing, the complaint alleges that the plaintiff delivered to the defendants 3,581 bushels; it recites that upon the same day the parties entered into a further agreement and expressed it in writing to this effect.

"That whereas the said first party has this day sold to the said second parties and the said second parties have this day bought from the said first party all of said first party's wheat now stored in the Central Point Mills consisting of 3,581 bushels and 31 pounds of club wheat as shown by said first party's warehouse receipt.

"The price agreed upon is $1.50 per bushel.

"The said second parties are to have delivered to them today one thousand bushels of said wheat and are today paying to said first party fifteen hundred dollars, the receipt of which sum is hereby acknowledged by said first party."

"The balance of the wheat is to be evidenced by a new warehouse receipt for 2,581 bushels and 31 pounds, which said wheat is to be delivered to and accepted by said second parties as follows: An amount equal to $1,000.00 on the 8th day of January, 1925, and a like amount on the 8th day of March 1925, and the balance on the 8th day of April, 1925, and said second parties do hereby agree to accept said wheat at said times and pay for same on said dates to said first party at the rate of $1.50 per bushel.

"New warehouse receipts are to be issued to said first party when any amount has been taken from said wheat, thereby keeping a complete record of the amount in the warehouse so in case of fire the said first party may make claim for the insurance thereon."

The complaint alleges that thereafter the defendants withdrew from the warehouse from time to time various quantities of wheat, each time paying for the quantity withdrawn, and that each time the defendant delivered to the plaintiff a new warehouse receipt covering the quantity remaining in storage. It is averred that on April 8, 1925, there remained in the defendant's warehouse 1,248 bushels and 11 pounds, and that on that day the defendant paid the plaintiff $1,000 and issued to the plaintiff a new receipt for 581 bushels and 31 pounds, which the plaintiff declares constituted the balance of wheat remaining in the defendants' custody. The complaint avers that the defendants have not paid for this remaining quantity and asks judgment for $875.33 representing its value at the price of $1.50 per bushel.

The answer sets forth that August 23, 1923, the plaintiff delivered to the defendants 105 bushels of baart wheat, which was placed in bin No. 1, 2,893 bushels and 53 pounds of club wheat, which was placed in bin No. 2, and 1,864 bushels and 21 pounds of club wheat, which was placed in bin No. 4; thus they admit the receipt of a total of 4,863 bushels, 14 pounds.

The defendants allege that between October 20, 1923, and May 15 1924, the plaintiff removed the entire contents of bins 1 and 4, leaving in the defendants' possession only the contents of bin No. 2, 2,893 bushels and 53 pounds, but that through the error of the defendants, the plaintiff was charged with the removal of only 1,176 bushels and 53 pounds from bin No. 4. Thus the defendants say that on December 8, 1924, through their error, they were led into believing that there was, in bin No. 2, 3,581 bushels and 31 pounds, when in fact there was only 2,893 bushels and 53 pounds, but that through the error of the defendants the plaintiff was charged with the removal of only 1,176 bushels and 53 pounds from bin No. 4. Thus the defendants say that on December 8, 1924, through their error, they were led into believing that there was, in bin No. 2, 3,581 bushels and 31 pounds, when in fact there was only 2,893 bushels and 53 pounds, in that bin. Continuing, the defendants aver that thus through their mistake they charged themselves with 3,581 bushels and 31 pounds as the contents of bin No. 2, and that thereafter as they deducted from time to time the quantities they purchased, the error crept into each warehouse receipt by reason of the original mistake in miscalculating the contents of bin No. 2. They allege that they have paid for all the wheat they have received, and have actually overpaid the plaintiff $159.17, and ask for judgment against the plaintiff in that amount.

The reply denies this new matter and pleads an estoppel; since the estoppel is not involved in our inquiries, we shall not review these allegations.

After the plaintiff had submitted his evidence in support of the...