61 P. 837 | Or. | 1900
Lead Opinion
delivered the opinion of the court.
This is an action to recover an installment alleged to be due under a contract entered into March 29, 1898, between the defendant and Yee Sing & Company, by the terms of which he agreed to> plow, put into a good state of cultivation, and seed 100 acres of suitable land in Union County, Oregon, to- sugar beets, and, as soon as they were up and read}'- for cultivation, to surrender the premises to Yee Sing & Company, who, in the proper season, were to furnish sufficient labor to care for said crop in a good and husband-manlike manner, as directed by the agricultural superintendent of the Oregon Sugar Company, causing the beets to be properly thinned, weeded, and cultivated while growing, to top them when matured, and load them upon wagons to be furnished by the defendant, who, in consideration thereof, agreed to1 pay them $1.15 per ton for all the beets grown on said land, as follows: $5 per acre at the expiration of six weeks after entering upon the performance of the work,
The defendant, after denying the material allegations of the complaint, set up separate defenses, in substance, as follows : (1) That when the beets were up and ready for cultivation he tendered the possession of said land to Yee Sing & Company, who for more than ten days thereafter refused to enter upon the performance of their agreement, and that after taking possession of said premises they neglected to furnish sufficient laborers to care for said crop in a good and husbandmanlike manner, or as directed by said superintendent, in consequence of which the first payment of $5 per acre never became due or payable to plaintiff’s assignor; (2) that in order successfully to grow sugar beets, or as required by the terms of said contract, it is necessary that the young plants should be thinned not later than ten days after they are out of the ground, and for six weeks from that time they must be constantly hoed and weeded, requiring one laborer to each two acres of land; that about May 18, 1898, defendant had growing, ready for thinning and weeding, 100 acres of sugar beets, on .which day he so notified Yee Sing & Company, to whom he tendered, but they refused to take possession, of said premises, and did not enter upon the performance of their contract until May 28, 1898, and thereafter they refused, though requested to do so, to furnish a sufficient number of laborers to properly care for and cultivate said crop, in consequence of which the beets were in
In Phillips v. Terry, 3 Abb. Dec. 607, an action was brought to recover damages for injuries resulting from backing water on a meadow, and the plaintiff, having testified in regard to- the injury sustained thereby, was asked, “Taking that hay as it stood there, what would it yield to the acre?” and, having been permitted to answer the question, it was held that no. error was thus committed, the court say
Plaintiff’s counsel assigned other alleged errors relating to the competency of witnesses and the admissibility of testimony of like character, but we think the legal principles insisted upon have been examined, and such alleged errors will not be further considered.
The bill of exceptions states, in effect, that testimony was introduced at the trial tending to show the following facts: That on May 18, 1898, the said sugar beets were up and growing on 100 acres of defendant’s land, and should have been thinned and weeded within ten days from that time, to accomplish which required from 40 to 50 laborers daily; that Yee Sing & Company took possession of said land about May 28, 1898, with 22 laborers, and from that time until July 1, 1898, there were not less than 11 nor more than 32 laborers daily employed in cultivating said beets, which was not completed until about July 21, 1898, and that, in consequence of the failure of Yee Sing & Company to comply with the terms of their contract in these respects, the defendant was damaged from $500 to $1,000; that plaintiff advanced money to Yee Sing & Company, taking as security therefor an assignment of the first payment due under the contract entered into between them and the defendant, who on June 23, 1898, was notified by plaintiff’s agent that said installment of $500 had been assigned to his principal; that on July 2, 1898, the laborers employed by Yee Sing & Company quit work, refusing longer to continue cultivating defendant’s beets unless they were .paid for their labor, whereupon the defendant, in order to save his crop from being destroyed, was compelled to guaranty to said laborers the payment of $250 for the labor which they had performed, and to assume the payment of $250 for the work which they might thereafter render, and in consideration of such guaranty and assurance said laborers resumed work, and com
It is contended by plaintiff’s counsel that the defendant, having been notified of the assignment by Yee Sing & Company, could not thereafter make payments to their employees to plaintiff’s prejudice; while defendant’s counsel insist that Yee Sing & Company could not transfer any greater interest in the chose in action than they possessed, and that the defendant, having been compelled to pay to said laborers the sum of $500 in consequence of the failure of Yee Sing & Company to keep their contract, is entitled to< off-set his damage against plaintiff’s demand. It is admitted that, if the defendant had made the payment directly toi Yee Sing & Company afer he was notified of the assignment, such payment would not ■ relieve him from liability to> the plaintiff: 2 Am. & Eng. Enc. Law (2 ed.), 1077; Andrews v. Beecker, 1 Johns. Cas. 411; Sanders v. Soutter, 136 N. Y. 97 (32 N. E. 638); Eastman v. Wright, 6 Pick. 316; Parker v. Kelly, 10 Smedes & M. 184. So, too, if Yee Sing & Company had earned the first installment at the time they assigned it, and defendant had notice thereof, he could not thereafter pay any portion of the sum so due to the employees of Yee Sing & Company, to the prejudice of the plaintiff.: McCloskey v. City of San Francisco, 66 Cal. 104 (4 Pac. 1092). In Fisken v. Milwaukee Bridge Works, 86 Mich. 199 (49 N. W. 133), the defendant, having enterd into a contract with the City of Detroit for the construction of a bridge, sublet the building of the piers thereof to¡ one Esson, agreeing to pay him monthly 85 per cent of the work done or material furnished, and the remainder of the contract price upon the completion of the work; reserving the right, however, to refuse at any time to1 make payments to Esson until he should have presented full releases or waivers of claims or liens by
In James v. Cincinnati, etc., Ry. Co., 2 Disn. 261, it is held that, if the subject-matter of the contract be left within the power and under the control of the assignor, the risk of its being impaired or destroyed, so as bo defeat the performance, is assumed by the assignee, the court saying: “The defense is, in substance, a want of ability on the part of one of the contracting parties to comply with the terms of the contract. If this want of ability had been caused by the defendant, after notice of the assignment, then the assignee might justly complain of such an act as a fraud upon his rights. But how can it be claimed that the assignment and notice devolved upon the defendant the duty of so supervising and controlling the acts of the assignor that a continued
There are other alleged errors assigned, but, deeming them unimportant, the judgment is affirmed. Affirmed.
Rehearing
Decided 8 July, 1901.
On Rehearing.
delivered the opinion of the court.
At the rehearing of this cause it was insisted that the statement in the former opinion (61 Pac. 837), to the ef
Affirmed on Rehearing.