156 P. 584 | Or. | 1916
delivered the opinion of the court. -
1, 2. It was competent for the parties to modify their original contract which would amount to making a new agreement; but this later stipulation, like all others, must be one in which the minds of the parties meet on identically the same proposition. The record shows that the plaintiff proposed certain changes in the contract, but it does not show that the defendant accepted the offer. It was therefore error for the court to say to the jury:
“That a modification of a contract submitted and taken under consideration must be answered. If it is not answered, it is agreed to.”
No one receiving an overture to change an agreement to which he is a party is obliged to answer the same. His silence cannot be construed as an acceptance if nothing else is shown. The doctrine of contract by offer and acceptance is stated in Henry, v. Harker, 61 Or. 276 (118 Pac. 205, 122 Pac. 298), and Lueddemann v. Rudolf, 79 Or. 249 (154 Pac. 116, 155 Pac, 172).
3. Section 6028, L. O. L., reads thus:
“The rate of interest in this state shall be 6 per centum per annum, and no more, on all moneys after the same becomes due; on judgments and decrees for the payment of money; on money received to the use of another and retained beyond a reasonable time with*129 out the owner’s consent, expressed or implied, or on money due upon the settlement of matured accounts from the day the balance is ascertained; on money due or to become due where there is a contract to pay interest and no rate specified but on' contracts, interest up to the rate of 10 per centum per annum may be charged by express agreement of the parties, and no more.”
This enactment furnishes a category of monetary transactions into which interest enters as an element. The mention of these excludes all others. Interest is not a matter of course. It must find justification in the statute, or not at all. The demand of the plaintiff is not within the scope of the law; hence interest was not allowable. The subject has been exhaustively discussed in an opinion by Mr. Justice Harris, filed April 4, 1916, reaching this conclusion in the case of Sargent v. American Bank & Trust Co., ante, p. 16 (156 Pac. 431). See, also, Richardson v. Investment Co., 66 Or. 353 (133 Pac. 773).
4. The motion of the defendant to strike out all the testimony relating to the refusal of the architects to approve the trim furnished constituted an objection to that evidence. This induced the plaintiff to apply for leave to amend his complaint, in the particulars noted above, at the close of all the evidence. That pleading up to that stage of the trial was to the effect that the plaintiff had fully and completely performed all the terms of its engagement. It then proposed to make a radical change of front and say in substance: “It is true that I did not meet all the requirements of my stipulation, but it was not my fault.” The rule is succinctly stated thus by Mr. Justice Bamsey in Horn v. Davis, 70 Or. 498, 504 (142 Pac. 544, 546):
“Section 102, L. O. L., provides for amendments of pleadings before the trial begins, and also during the*130 trial. Amendments substantially changing the cause of action or the defense cannot be allowed during the trial: Foste v. Standard Ins. Co., 26 Or. 449 (38 Pac. 617); Talbot v. Oarretson, 31 Or. 265 (49 Pac. 978).”
Hitherto the moving party had warned its opponent to be prepared to meet the allegation of absolute performance in every particular. This required one class of proof. Altering its tactics as indicated was to challenge its adversary to a new field of investigation, namely, to determine whether or not the architects acted without right or reason in refusing to approve the trim. "While this could have been allowed before the trial, as stated by Mr. Justice Ramset, it was error to allow the change after all the evidence was in.
5. It becomes necessary therefore to consider whether the traversed allegation of that pleading to the effect that the plaintiff had duly performed the contract on its part is satisfied by proving the delivery of the material, but failing to show that the same had received the indorsement of the architects; and, further, whether this is saved by the averment in the reply that the withholding of the architects’ approbation was arbitrary and without reason. It is said by 'Mr. Justice "Wolverton, in Livesley v. Johnston, 45 Or. 30 (76 Pac. 13, 946, 106 Am. St. Rep. 647, 65 L. R. A. 783):
“There is another class of cases where the article sold or the work to be done or performed is to be subject to the approval of, or to be satisfactory to, some third person, and in many instances that person is the agent or employee of one or the other of the parties to the contract. In cases of this character,'the approval of the party so designated becomes a condition precedent to a recovery for the price. He must, however, have acted in good faith and with an honest purpose, and cannot arbitrarily or capriciously exercise his judgment. If he violates his duty in this regard,*131 a recovery may be had, in the absence of his approval, for the nonacceptance of the articles furnished.”
The principle being established that the approval of the umpire is a condition precedent, it is necessary as a matter of pleading that the party show a compliance with the contract or a valid reason for a shortcoming in that particular. This he must do in his complaint, for it is his duty to state the whole truth respecting his grievance in the first pleading.
6. The instructions of the court regarding the standard to be observed by the architects is not referable to any issue properly raised by the pleadings, in. which it is maintained on one side and challenged by the other that the moving party had strictly performed its covenant. Whether it would be correct if the first pleading had stated compliance with the agreement except obtaining the expression of satisfaction from the architects, who arbitrarily withheld the same fraudulently or without reason, we do not here decide. We only hold that it was not applicable to the dispute as it was framed by the parties. It may be that by proper amendments the precise question involved in that transaction can be presented, but it is not regularly before us at this time.
The judgment of the Circuit Court is reversed and the cause remanded for further proceedings.
Reversed.