130 P. 397 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
On April 1, 1910, C. F. Daniels and the defendants entered into a contract by which the defendants agreed
“That said seller * * does hereby agree to sell and deliver to the buyers * * twenty thousand (20,000) pounds of hops. * * And to deliver the said hops in said year at the McMinnville depot * * at such time between the 1st and 31st days of October of said year as the buyers may direct. Bach bale of said hops to contain from 180 to 210 pounds of hops (five pounds tare per bale to be allowed), and are to be put in new bale cloth. The said hops shall be of prime quality of even color, well and cleanly picked, and not broken. And the seller further agrees that this contract shall have preference, both as to quantity and quality, over all other contracts made as to said growth of hops by the seller with any other purchaser. The buyers agree to advance to the seller for cultivation purposes $400.00, upon the signing of these presents, and for picking purposes, on or about the first day of September of said year to enable the seller to harvest said crop of hops, and to prepare the same for market in the manner in which the seller agrees to harvest and prepare the same, the sum of 5 cents per pound at their office. * * And upon the delivery and acceptance of said hops the buyers will pay in current funds of the United States or their equivalent 9 cents, the balance due on said hops at 16 cents per pound, that being the agreed price for said hops, and all money advanced for the purposes aforesaid, with -per cent interest to be deducted from the purchase price of said hops. * * It is further agreed that if the seller should sell said hops, or any part thereof, in violation of the. terms of this agreement to any other person or persons or refuse to deliver the same to the buyers, as herein agreed, or otherwise fail to perform the terms and conditions of this contract, to be kept and performed by him, the buyers not being*292 in default, in the terms and conditions to be by them kept and performed, the buyers shall be entitled to receive, in addition to all advances made and interest thereon; * * and should the buyers fail on their part to accept and pay for the hops herein agreed to be sold, the seller not being in default in the terms and conditions to be by him kept and performed, the seller shall be entitled to receive as liquidated and ascertained damages for such breach on the part of the buyers, the difference between the contract price of said hops, as herein specified, and the market value of the kind and quality in this contract mentioned at McMinnville, Yamhill County, Oregon, on the 31st day of October, 1910.”
Daniels thereafter assigned the contract to Daniels & Bishop, these plaintiffs. Defendants raised about 31,000 pounds of hops, and cured and baled them, amounting to 155 bales in all. Plaintiffs advanced to defendants under the terms of the contract, $1,576.32. On October 8th defendant had delivered in the warehouse at the depot, in McMinnville, 95 bales of hops, containing about 20,000 pounds, and that on that day defendants tendered to plaintiffs the said' 95 bales, which plaintiffs examined, and pronounced the hops damp and not properly dried. When plaintiffs first declined to receive the hops, and said that they were slack dried, defendant took 21 bales thereof back to the dryer, and redried them, which resulted, to some extent, in breaking up the hops. The Morrises testified that when they opened up the bales they were found to be well dried, and further admit -that about 5 bales of the last picking were out of color, and not prime hops. Witnesses who identified the classification made by them show that the objectionable hops were mostly those redried, because badly broken up, and the 5 bales of the last picking, which were not of good color. At that time plaintiffs gave defendants notice
The contract calls for hops of prime quality, even color, cleanly picked, and not broken. Plaintiff Han
If defendants’ hops did not fill the contract, he has no remedy, but, if they did, plaintiff must meet the
The decree of the Circuit Court will be modified accordingly. Modified.
Rehearing
On Petition for Rehearing.
(132 Pac. 958.)
delivered the opinion of the court.
The result attained in the former opinion was correct, and the petition for rehearing is denied.
Rehearing Denied.