115 P. 721 | Or. | 1911
Lead Opinion
Opinion by
The contract was evidently drawn by a' layman, who did not understand the technical meaning of some of the terms he used. By the contract, the first parties are made liable for one-half of the difference between the existing rate and any reduction that may be made. The existing rate is not alleged; hence the difference cannot be computed; but probably it was intended to require payment of only half of the amount of the reduction, but it is not so stated. Neither does it fix the time within which it is to be performed, but includes all future reductions in rates.
The contract by its terms was intended to bind the farmers to pay without any consideration moving to them, as they promise to pay “whether the said reduction shall hereafter be voluntarily made by said transportation lines conveying from said territory, or the said reduction in said rates shall result from the agitation set on foot by the said party of the second part, his agents, servants and employees, or from proceedings instituted by the said party of the second part for such reduction or from any other cause.” This clause of the contract alone indicated bad faith on the part of Peebler — an attempt to create a liability on the part of the farmers without obligation on his own part. The contract is not mutual, and the promise of defendant to pay is without consideration, and is void.
The judgment is affirmed. Affirmed,
Rehearing
On Petition for Rehearing.
[115 Pac. 1122]
Opinion- by
By the petition for a rehearing it is contended that the contract was fulfilled on the part of plaintiff and that, the conditions being fulfilled, defendant cannot question its validity. But the fallacy of plaintiff’s position is in assuming that the contract provides for the doing of some specific acts, and that the acts so contracted for were performed by plaintiff. As held in the opinion, the contract does not specify anything definite to be done. If the complaint alleged generally that plaintiff performed all the conditions of the contract, which would be a sufficient allegation of performance, it could not aid his pleading, as it cannot be known what conditions are to be performed; and the contract is not aided by an allegation that he did a great many things, the court being unable therefrom to say that such acts were the acts specified in the contract. Defendant cannot be required to accept the pretended performance alleged in the complaint as the fulfillment of the contract. The contract is void for indefiniteness.
Motion denied. Affirmed: Rehearing Denied.