86 P. 357 | Or. | 1906
Lead Opinion
delivered the opinion of the court.
It is conceded by the defendant’s counsel that the plaintiff was entitled to the sums for which judgment was rendered on the fourth and fifth causes of action; but it is insisted that the court erred in permitting the complaint to be amended after immaterial testimony had been admitted over objection and exception, and also in refusing to grant a judgment of nonsuit on the second cause of action, for the recovery of discounts, etc., and that, as the' defendant was entitled to a counterclaim of $2,277.25, judgment should have been rendered in its favor and against the plaintiff for $1,135.28, in excess of the sums so admitted to be due. It is argued that, though the contract in question contains a stipulation for the reciprocal purchase and sale of furniture, the second cause of action is based on the theory that the agreement created an agency, whereby the plaintiff was authorized to sell the goods delivered to it by the defendant at any price it might demand and to allow such discounts and reductions as it chose to grant to its customers, retaining a commission of 13 per cent, and that the defendant was bound by sneh action. The court filed with its findings an opinion to the effect that the contract of the parties manifested a sale and did not create an agency; that, though the plaintiff’s counsel asserted at the trial that the second cause of action was founded on the original contract, the averment in the complaint of an agreement to allow extra discounts and special freights was equivalent to an allegation of the making of new agreements modifying the original contract, and, as
The plaintiff’s manager testified that the corporation which he represented was the agent for the defendant and as such was not authorized to- sell the furniture delivered to it above or below the stipulated prices, for which service it was entitled to 13 per cent for handling the goods. We think it was the theory of the plaintiff and of its counsel that the contract of the parties created an agency, and that the averment in the complaint that plaintiff, on ascertaining the amount of the discounts and reductions, immediately gave a statement thereof and charged the same to the defendant, to all of which it assented, confirms this view. If the plaintiff was such agent and sold the furniture at a discount or paid the freight on the shipment of goods and the defendant, upon notice thereof, assented thereto, as alleged, such acquiescence was a ratification which rendered it liable to repay the sums so expended, without an averment of an agreement to pay the same. The fact that the clause “and agreed to pay the same” was omitted from the complaint, but incorporated therein by amendment after the cause was submitted, tends to corroborate the belief that the second cause of action was founded on the theory of an agency. The defendant’s manager evidently thought the contract created an agency, for in a letter which he wrote the plaintiff November 18, 1903, he says:
“We note that you have made quite a material advance on the price of chiffoniers, and would like to inquire if you have been selling them at the list price, as you now have it? If so, we trust you will figure out the difference coming to us on them.”
“(11) That thereafter and after said contract had been entered into as aforesaid, the defendant as a manufacturer of the furniture referred to in the said contract and other manufacturers of a like kind of furniture and competitors of plaintiff entered into an agreement whereby said factory list price was reduced by the allowance of freights on various shipments to various parts of said territory, and said factory list price was reduced after said contract had been entered into in other respects by direction of defendant to plaintiff, and under and by virtue of said clause above mentioned, defendant was required to modify said schedule of prices attached to said contract and make out a new schedule based upon said factory list prices as the same were reduced as aforesaid, but defendant failed to modify said schedule attached to said contract or make out a new schedule in accordance with said reductions.”
We concur in the opinion of the lower court that the contract did not guaranty to the plaintiff any rate per cent of profit on the sale of the furniture. The property in the goods being vested, on the delivery thereof, in the plaintiff, it could have resold the furniture at such prices as the demand for and the competition in the trade would warrant. The agreement of the parties was subject to the construction placed upon it by the lower court, as evidenced by its opinion, from which we take the following excerpt:
“According to the terms of this original contract the defend*367 ant had a right to insist that plaintiff pay it the list price in force at any particular time, less 15 per cent as agreed upon. If the list price was too high, the plaintiff could have insisted upon its revision; but, as long as it stood, plaintiff was bound by it. The mere agreement by the parties that a larger discount should be allowed to a particular purchaser or in a particular town or district did not amount to a change in the list price.' Such agreement when made was not in accordance with the terms of the original contract, but was a new agreement, or a modification of the original contract.”
In consequence of the error committed, to which attention has been called, we believe justice would be promoted by reversing the judgment and remanding the cause for such further proceedings as may be necessary; and hence an order to that effect will be entered. Reversed.
Rehearing
On Motion eor Rehearing.
delivered the opinion.
A petition for a rehearing having been filed by defendant’s counsel, it is asserted therein that judgment should have been rendered in this court in favor of their client for the sum of $1,135.28, and that the cause should not be remanded for a new trial, thereby imposing additional expense upon the parties. The question now suggested was argued when the cause was submitted, in answering which it is stated in the opinion: “We believe justice would be promoted by reversing the judgment and remanding the cause for such further proceedings as may be necessary.” In order to recover any of the freights claimed to have been paid by the plaintiff, it will be necessary to secure an amendment of the complaint, and, an alteration in this respect being imperative, it is quite probable that the court will, upon application, allow the complaint further to be amended, so as to aver a modification of the original contract. We adhere to the former opinion, and hence the petition will be denied.
Reversed: Rehearing Denied.
On Motion to Retax Costs.
Mr. Justice Moore delivered the opinion of the court.
Reversed: Rehearing Denied.
Motion to Retax Costs Denied.