*1 330 1949; 13,
Arguеd December and remanded 11, October reversed February rehearing petition 1950 denied FIREMAN MANUFACTUR- v. IRON HOWLAND COMPANY, ING A CORPORATION (2d)
213 P. (2d)
215 P.
Manley Strayer, argued the cause Portland, B. Hugh appellant. L. for With him on the brief were Biggs, Spencer, McCulloch Hart, H. Fraser, G-. all of Rockwood, Portland. argued the cause Swire, Portland,
Marvin W. S. Ralph respondent. brief were A. With him on the Rosenberg, Coan, & all of Portland. and Coan Justice, Before Chief Brand, Bailey, Lusk, Justices. Hay Page, *6 J.
BRAND, corporation engaged is a The defendant in the manufacturing business of automatic coal burners April oil Under automatic burners. date of 24 argeement and defendant entered into an in writing, ap- the under terms which pointed County, dealer defendant’s Multnomah Ore- gon, right with exclusive to sell and deal in de- No. 4 fendant’s and smaller sizes of defendant’s coal burners. automatic Said written contract is set forth as an exhibit to the defendant’s answer and was objection. alleging received without evidence After corporation and the defendant business of the alleges complaint contract, execution of the No. 4 and thereof, of the execution at the time coal burner con- automatic smaller sizes of defendant’s heating equipment entire line of stituted defendant’s territory. It is said for within available sale in accordance of the contract the terms that under requirements: policy and with defendant’s “* * * required aggressively Plaintiff was territory, merchandising pursue, his said within heating equipment, employment home of said survey premises adequate facilities to equipment installed, would be such wherein adequate equipment,' to render installation of said satisfactory purchasers service to thereof and promote required to and ener- Plaintiff was also equipment getically pursue sales of such territory.” his said heating home defendant’s equip- refer to
We shall smaller sizes of No. 4 .and defendant’s wit, ment, brevity, as the “coal burn- burners, coal automatic plaintiff alleges and the de- or “stokers”. The ers” *7 plaintiff continued to be the exclu- fendant denies up in coal burners to 4th sive defendant’s dealer alleges day 1946. The that on or June, July the defendant commenced the active about 1 burning equipment of oil for home heat- manufacture “requested ing Plaintiff to act as its exclusive and County, Oregon, in Multnomah the sale of dealer Plaintiff oil burners to the end that would be its said territory position sell to all customers his in a heating equipment might as such customers such home require, or oil and that burners”, either coal burners agency thereupon accepted said and was “Plaintiff prepared to sell thereafter Defendant’s at all times territory oil burners in Ms County, said of Multnomah ’’ Oregon. complaint alleges: The further ‘‘ year That in the summer and fall of the began
Defendant sufficient to manufacture oil burners in quantities so that the same could be sold to customers and Defendant announced to all of its selling dealers heating equip Defendant’s home particularly ment, and to Plaintiff, two addi new tions to Defendant’s line heating of automatic home equipment, to-wit: the Iron Fireman’s Luminous Vortex Oil Burner, and the Iron Fireman’s Type Standard Pressure Burner. Oil That said oil competitive burners were to Defendant’s No. 4 and smaller size automatic coal burners and Defendant represented particularly to its dealers, and sup Plaintiff, that its said oil burners would be # * * plied including to said dealers, Plaintiff, * * * position so that sell to the Plaintiff, would be in a public either coal burners or oil burners, preferred by prospective pur whichever was “To chaser.”, that, induce Defendant’s dealers aggressively market and sell said oil burners, represented holding Defendant that the dealers ex including coal clusive would burner franchises, Plaintiff, also be exclusive dealers for the sale of De respective oil burners in fendant’s their territories urged and Defendant and solicited their said deal particularly employ ers, the Plaintiff, their obtain full efforts to the maximum sales of oil burners.” complaint alleges further rep- that defendant
resented to “that he was and would continue Defendant’s exclusive to be dealer for the sale of said territory”, oil burners his said representations believed reliance thereon ex- pended approximately employing training $5,000in *8 increasing office facili- salesmen, men and service equipment space, securing warehouse ties, treated its conduct that the defendant trucks, burners. for oil dealer as its exclusive complaint Paragraph follows: is as VIII exclu- Plaintiff as Defendant’s “That solicited County, Oregon, oil in Multnomah sive dealer contracts with entered into burner customers and purchasers oil for the sale of Defendant’s such thereupon placed orders with Plaintiff burners. furnished burners to for such oil be Defendant shortage of oil to the said customers. That due
his burners great upon demand the market and position take un- Plaintiff in a to therefor, burn- for Defendant’s oil limited number of orders doing from so and instead thereof ers, but refrained daily almost Defendant as counseled with oil burners number of orders and sales of such accept number of Plaintiff should and the which sup- oil burners Defendant could would which accepted ply and Plaintiff at all times Plaintiff, only such orders for oil burners as the Defendant promised and assured Plaintiff that the Defendant supply for his such could and would Plaintiff within a reasonable time.” customers alleges Complaint that the in reliance promises representations “continued defendant’s accept sup- as fast as oil burners orders were and, plied to install the same until Defendant, on January, the middle of 1946” and de- about received paid posits from customers and salesmen commissions.
Paragraph complaint X of the is as follows: day January, on or about the
“That 15th herein ceased fill 1946, Defendant Plaintiff’s although oil burners, orders for Defendant had оn ready Oregon, Portland, hand sale and in- large number of oil stallation burners sufficient *9 supply in number to fill Plaintiff’s orders and part Plaintiff’s and action customers, said on the of the Defendant continued until on or the about day February, 15th of at which 1946, time Defendant notified Plaintiff it that would not deliver to Plain- necessary
tiff the oil burners to fill the that orders Plaintiff had taken from customers, all with the ’’ knowledge acquiescence the of Defendant. complaint alleges plaintiff that as a result
compelled deposits. to cancel certain orders and refund complaint Attached to the is Exhibit anA, itemized containing concerning the list data 82 oil burners con- by plaintiff tracted to be his customers, sold to required alleged he which contracts was to cancel. It is plaintiff profits lost which he would have thereby damage on made said contract and suffered alleged sum of It is further $9,926.78. that in an attempt carry purchasers, out his contracts with plaintiff fabricated oil burners twelve not included thereby expense A and in Exhibit incurred in the sum price in excess of the he of which would have $858.12 pay required to under his dealer’s been contract. plaintiff incorpo- cause action
For his second of allegations by of rates reference the the first cause, except paragraph quoted supra, except 8, remaining paragraphs to9 15 which we have sum- immediately following quoted para- marized of text alleges graph he 8, and between defendant, day day 4th October, the 18th of 1945 and the of June, rights plaintiff’s violation as exclusive large sold a number of dealer, oil burners direct accounting purchasers plaintiff without as to sales. It reason of the said direct plaintiff’s sales the defendant within the exclusive territory profits plaintiff lost “that he would have through plaintiff”, been made had said oil burners sold damaged thereby sum and that has been acknowledges Plaintiff $27,624.85. indebtedness open in the the defendant on account sum $8,851.13 judgment prays plus of $9,926.78 in the sum the first $27,624.85 on cause action and on owing $358.12 less action, second cause the $8,882.75 from to defendant.
In its answer the defendant admits the execution concerning of the written contract coal burners but denies that continued be the exclusive dealer *10 up day of June, the 4th 1946.' The defendant denies agreed plaintiff it to constitute the its exclusive alleges: dealer sale of oil and burners actively “that it resumed the manufacture of equipment heating during oil burner for home day fall of until on 5th about the of permitted plaintiff December, 1945, defendant equipment quantities sell said at retail in limited supplied plaintiff to be in accordance with de- plan policy equitably fendant’s announced of distributing supply among its limited of oil burners its numerous retail outlets.”
Defendant denies that it towas furnish oil burners plaintiff so that could all sell to customers such home heating they might equipment require. as The answer alleges commencing that after the manufacture of oil burners in 1945: * ** “it announced to its coal automatic including plaintiff,
burner dealers, two new addi- heating tions to defendant’s line automatic home equipment, the Iron to-wit, Fireman’s Luminous Vortex Oil Burner and the Iron Fireman’s Standard Type alleges Pressure informed Oil Burner. Defendant that it accept that it would initial orders equipment for this from its automatic coal burner pending it of individual the issuance dealers burners, oil for the sale its dealer franchises would dis- that it and defendant informed among supply its limited of oil burners tribute its ain other retail outlets coal burner dealers and equitable fair and manner.” plaintiff’s allegation
Answering defendant agree- recognized had the exclusive character of admits burners, for the sale oil defendant ment that it did: inquiries pros- from instances refer
“in some concerning pective burn- customers defendant’s oil alleges plaintiff. ers to that it did so Defendant at times defendant’s own retail staff when efficiently inquiries such because to handle unable of large requests inquiries con- volume of cerning oil said burners which were addressed to defendant.” plaintiff solicited, “admits that obtained
Defendant large placed number of orders for defendant with plaintiff’s oil burners to be furnished to defendant’s “alleges accepted many as but, that it customers”, supply plaintiff’s its limited of oil burners orders accept, policy permit it to in accordance with its would among equitable all its retail outlets in distribution alleges areas.” that in so Defendant far as *11 may accept upon to it orders, have continued was done plaintiff’s responsibility, own and: promises or assurances from defend- “without plaintiff supply or
ant that it could would suf- with orders, burners to of ficient take care such contrary express representations defendant’s to plaintiff supply that it and statements could not large part prevailing even in demand for oil County any in Multnomah other of burners its retail areas.” plaintiff’s alleges to fill
Defendant that it ceased day on orders for oil burners or about the 5th at time and was forced to dis- December, 1945, gov- continue the manufacture thereof “because of shortages material restrictions, ernment and other alleges had control.” It conditions over which it no further if on that date the did have on defendant supply hand of oil burners sufficient in number to plaintiff’s fill orders “all of burners were said com- plan equitable mitted accordance defendant’s with distribution other retailers” and that defendant plaintiff supply twenty- nevertheless, offer to did, plaintiff’s oil three burners excess allotment. The allegations other first cause action are denied.
As its answer to the second cause of action the defendant reiterates its answer to first cause, alleging that it has at all times maintained its own department through retail which it has sold all of its products, except equipment burners, the coal as such any available, became and never issued exclusive deal- ership alleges for its oil burners. It that the is indebted defendant in the prays judgment sum of $8,882.75 for in that reply general amount. The is a denial. The verdict prayed was as heretofore stated. The full amount for the first cause of action was awarded jury. Upon verdict of the second cause of action prayed verdict was $1,462.85less than the amount for.
The denial of defendant’s motion directed assigned verdict as to each cause action as error. contends that an oral contract was made
between the defendant and himself, under which he was to have an exclusive franchise for the sale of oil *12 County. He contends that in Multnomah
burners agreement during part the latter of the was reached August, July in oral con- summer of Mayne district Read, himself and versation between making company. manager sales of defendant by agreement was the defendant of such an denied by for the defendant witness, Read as a but counsel jury requires properly that concedes the verdict accepted plaintiff’s as true for version be ruling purpose passing upon the the motion on only. purpose While for directed and for that verdict, testimony conceding be of the must testimony, accepted against opposing as the defendant plaintiff’s is evidence nevertheless contends that the It asserts, not to establish a valid contract. sufficient acceptance evidence that there is no substance, testimony that the of the Read, the offer made only negotiations looking preliminary plaintiff shows constituting but contract, one, toward not purported agreement plaintiff’s testi- the mony shown uncertain
was indefinite and and therefore purported also claims that invalid. Defendant mutuality agreement void for lack of and that apparent authority actual or make Read was without any agreement. such Defendant contends that there agree- was no of Read’s acts and ratification that the by plaintiff, being ment as void oral, testified under the statute frauds. relationship take
We will first note of parties prior concerning it was many years oil For the defendant burners. had been engaged in the manufacture and sale of coal burners employed by or stokers. The had been Company Pacific Coast Coal which then a fran- held company whereby chise from the defendant the coal company became the dealer coal defendant’s *13 Early January, by be stokers. 1944 was informed company coal that it was about to surrender during stoker franchise that month the and negotiations opened pur- with the defendant for the pose securing of the stoker franchise for himself. In negotiations by which were initiated January, inquiry 1944, he first made at the defend- by Mayne ant’s Portland and was office referred it to “proper as the Eead man talk to”. then talked He with Mr. Sammons who was the Vice Presidеnt of the company, plaintiff’s and thereafter Mr. Eead. In with incorrectly brief Eead is as described the Western Manager company. proper Division His title Manager. agreement was District Sales The verbal for the stoker franchise was reached in conversation agreed between the and It was Eead. that a written franchise would follow. The evidence does not disclose the detailed of oral terms plaintiff operated under which the in the sale stokers prior to the effective date the written franchise. It appear dealership does that his towas be exclusive company’s from the date of the termination the coal employ- franchise. Even termination of his before the company, apparently ment with the coal before the company, surrender of the stoker franchise the coal plaintiff began seeking orders stokers for future delivery upon activity began his own This account.
February March, the last of 1944he had secured nearly quote plain- $3,000 worth of orders. We from testimony concerning tiff’s the stoker franchise: you your
“Q At that time knew, course, April franchise towas become effective on 25th? My already “A had become franchise effective.
“Q Tour written franchise? too. franchise, a verbal no,
“A No, Mayne wonld be told me that franchise Read forthcoming.
‘£ you effective Q tell it would become Didn’t he April 25th? might have-
“A He ex not have had an could ££Q course, You, long an exclusive outstand there was as clusive Company? ing with the Pacific Coast Coal ££ Surely, me mine he would A effect when their’s assured ended. take
££ one ended off, there to be a cut when had Q So the other started? it whether that, ££A all understood I think we not.” said or *14 operations aas stoker he continued Thereafter agreement prior the a verbal and under dealer any receipt a franchise. He received written written April The 1944. testified franchise dated 25 franchise in June he the written stoker received got signed as returned it as soon he of 1944 agreement may the oral have been it. Whatever April parties prior it the to 25 is clear between by the their relations were controlled written agreement The franchise after its execution.
April the exclusive dealer constituted County for sale of coal within Multnomah stokers. provided: The written franchise
t i X X X ££15. AND STIPULATIONS OTHER AGREE Anything contrary herein to the not MENTS: withstanding, specifically is it understood agreed that tenure of the franchise herein year-to-year granted on a basis. It is is understood following the first twelve months the date
2-17 proving period, agreement a this are serve of and that of satisfactory to both if this may parties it be for a hereto then renewed agreed upon period to be further of time which is ’’ at that time. company the manufac-
The commenced defendant of the ture of oil burners 1939 and unlike case coal the oil sold and distributed stokers, burners were through through any responsible or either dealеr through the retail dealer, licensed Iron Fireman department company. of the oper- about stoker
The defendant had dealers ating upon franchises. exclusive In 1943 or 1944 their defendant offered oil burners to stoker dealers alleged on a from nonexclusive basis. Aside con- plaintiff, tract with the no exclusive franchises were During issued on oil burners until late in 1946. production drastically
war, curtailed the re- imposed by strictions War Production Board, suspended except manufacture oil burners was by government priority. small number authorized Upon termiilation of the war the defendant resumed production, completed but the oil first burners were not September, until 1945. The written stoker franchise April rights concerning of 25 1944 conferred no oil controversy burners. relates to here the violation constituting oral contract only. a dealer in oil defendant’s burners It was the *15 position plaintiff defendant at the trial that the was authorized to as a act in oil burners, dealer but only upon a nonexclusive basis. testimony
willWe now set forth the substance of the plaintiff concerning alleged agreement for the present purpose which for our will be treated as true. plaintiff Mr. a conversation between
There was plaintiff, and in the latter at the office Read plaintiff part Read told of 1945. of the summer burners would of oil that models that he two was sure plaintiff production be the dealer was to that be company. Read that he wished told Plaintiff for the agent, he not want that did sales but added be their to agency Plaintiff to be exclusive. it was unless company’s policy disapproved of the he that told Read competition selling store in with in its at retail own plant’s to take “inclined dealers. Read was its handled dealers said, Read “It would be view”, but referred to The conversation exclusive basis.” on Burner and Luminous Yortex Oil models, the two plain- Type Burner. Read told Pressure Oil Standard definitely price fixed at tiff that the type Plaintiff on the other. said one on $110 $85 price willing pay that for them. Plaintiff he many get orders for as burners he could Read that told him “that at but Read “warned” secure, he could production rather of burners would be slow”, first plaintiff, as other have dealers, as well would that manufacturing take that would satisfied to be very quickly they would be said but Read time, production complete and that then the into territory. in the Plain- all was needed have could agency if received the he he had Read tiff told get money he it and that would a first- to handle explained place. Plaintiff to Read suitable class have to make and that he he would investments which “money agency put into an unless not want did replied, “Boy, to which Read exclusive”, if it was you you going get will do, are the ex- that is what ’’ that the should said have the Read clusive. *16 County territory would see about and he of Multnomah. Washington, quote: giving also. We him Vancouver, anything Mr. that time said at “Q Was agency if this salesmаn not, as to Read whether factory you, given make would sales that the was customers ? direct to they going saying not were “A from Aside put way any it in and would it that more handle agreed that a He with me of a dealer. the hands put goods high-grade piece not be out and could factory, and the between the dealer cross-fired so forth. question? you that
“Q So discussed certainly “A We did.” disapproved practice he Read said that selling Again quote: factory we direct.
“A I asked him if the contract would be similar in relation to and he time, the stoker contract contract, be similar to said it would only had in reference to time. discussion we the contract on a me, That satisfied because days. thirty year’s and could be cancelled in basis anything being about “Q Was said its reduced writing? “A I asked him for the and he Yes, franchise, they they from made, were not had to come said they get I and when came would one.” Cleveland, Read told the that the At conference be available and that would machines would shortly”. inquiry get “right In answer to them with Read, of the conference to the conclusion said: “ * * * Mayne a little rankled at Read was what way at the office and the I criticized the I had said company, put he was kind of out about that, taking company’s part. Still, he was when good he in a office, our mood and we we left np and had
went lunch and we mat- discussed the going further, ter and I him told what moves I was plans to make and what I had, and he said, ‘Well, boy, you get get will franchise. I will the fran- you’.” chise foregoing summary fairly *17 plaintiff’s states the agreement concerning version of the the exclusive agency, types character of the of burner involved, prices plaintiff, agree- the duration of the territory quantity ment, the involved and the to be supplied so far as that was discussed in the initial conversation between the and Read. The eight obliga- contends that there were other tions assumed him. We will list them as set forth plaintiff’s in brief and refer to the evidence offered support quote: in of each. From the brief we
“(d) Obligations Respondent— “(1) “(2) space. To obtain warehouse acquire To trucks.
“ (3) up display To a set room.” * * Plaintiff testified: I told him if I took the agency get that I space would have to warehouse and * * put good display and in a trucks, room, “ (4) employ To first class salesmen. “ ’’ (5) To hire installation crew. put him
Plaintiff “I testified: told we would on good him get first-class salesmen, and I told we would ’ good put jobs right crew of men behind it and in ’;
“(6) products To handle Iron only Fireman exclusively.”
and agreed Plaintiff testified: “We were both that we were to handle throughout and nothing only the Iron Fireman else. [*] * * ”; equipment “(7) spend exclusively To sale of time and effort Appellant’s equipment.” * “* # if I were him I told testified: Plaintiff spend all our agency, would that we get exclusive equip selling their put effort all our forth time ment.”; year period of one
“(8) service To service) 90-day oil all (including free in Multnomah and installed sold burners County, Ore.” arrangement with his under testified
Plaintiff required Iron Fireman all to service he was Mr. Read Manager Howard, Mr. Elmer stokers, burners Department testi- of the defendant of the 'Sales Order responsible on all any for service dealer fied quote further We made. which the dealer installations testimony: plaintiff’s from you Mr. this talk with After concluded “Q hesitancy going you any ahead have
Read, did up? starting sales the same as our “A not. This talk was I did *18 in our I tried to tie Mr. Read down stoker talk. say give got me him he would I never talks and only dealership, time this the but the exclusive long period of and time, tallied this out over we thought something go in I I was on, we had good position and and exclusive, I had the and felt we sales, deal on their I the exclusive he said had worry.” have a bit of out, then I didn’t from plaintiff that about the of testified The wife the plaintiff bought September, and before the of middle plaintiff, Mr. Read state to the the she heard trucks, your territory, you, you exclusive in “I have the told you get plaintiff The the one to the burners.” are testified: you talking the conversation about Q Now, are ‘ ‘ only you this exclusive dealer-
is the one discussed ship ? in the oil burners my morning “A Yes, that was the he came to ’’
office. testimony concerning It is the this conversation on plaintiff dealership which oral bases his claim an quote following contract. the statement from his We brief: Appel- result “Asa of and conversation, acting through Respondent,
lant, Read, entered into a verbal and contract is the which * * *” Respondent’s basis of of causes action. fairly We believe we have set forth in substance testimony plaintiff all favorable concern- ing alleged agreement made that conversation. subsequent There is other evidence of conduct of the parties tending on which the relies as to show recognition making oral but not contract, Concerning agreement, of it. duration only allegation complaint that the is “was and would continue to be exclusive Defendant’s * * only testimony upon dealer Plaintiff’s point relation to time, contract “would already be similar” to the stoker contract. haveWe quoted controlling provision of the stoker fran- chise. buy did fact two new trucks at a approximately
cost and tools at a cost $2,000 of. enlarged purchased about He office, his office $400. equipment, partitioned furniture and a warehouse, alleged performance contract, all his he hired expense and trained installation crew at further August himself. He also hired a salesman on 27 *19 1945, and moved into a new location in December, 1945.
2o'o introduced in evidence letter of 18 signed by Burg, C. T. Vice President October 1945 Charge That addressed to all Iron letter, of Sales. oil dealers, Fireman announces two new burners now being quote: manufactured. We beginning assembly
“We are now of both and Luminous Standard Vortex models. Natu- rally, during pro- next months the volume few duced be limited because will somewhat present difficulty during period the reconversion securing certain materials. But as materials rapidly step up become more abundant we will our production point all where dealers can imme- diately many they secure as oil burners as can sell.
In the meanwhile we will distribute the limited supply among available in a our dealers fair and equitable manner. accept
“We will now initial orders for both suggest models of Iron Fireman oil burners, we * * * you place at order once.
“Pending the issuance of individual dealer covering franchises, the sale of Iron Fireman oil supply burners, we will our oil burners to Iron Fire- holding man dealers stoker franchises, as these burners become available.” already
Plaintiff asserts that he had consummated dealership his verbal contract for an exclusive before this letter was but he also received, asserts in his brief “respondent therefore treated this letter as agreement” confirmation of his oral and that Bead already had assured the that a written fran- chise would be him delivered to from the Cleveland Beferring office. letter of 18,1945 October which Burg, plaintiff’s deposition was written Mr. and to concerning you say it, asked, “Now, did you treated that aas franchise?” “A Well most *20 **
certainly. Witness continued: “A toYes, *” already, this extent. We had received verbal franchise already and we were on that and we acted agree- on that, and this confirmed certain terms of that say operating I ment, and would I was under an oral- contract, that had its limitations, and its 'limitations * * Unfortunately plaintiff were these did appears not finish his but it sentence, clear that the limitations to which referred he were those set forth colloquy in the letter of After October 18. between plaintiff court and counsel, counsel for the said: “In deposition, (reading): the witness said ‘The Wit- only amplified previous : ness And this verbal infor- ’ along price mation A line.” list for the two types of oil burners was enclosed in the letter of prices October 1945. The were sub- sequently types lowered from on the two $85 $110 respectively. of burner to $81 evidence $102 taking establishes that he was orders for prior oil burners to the time of the exclusive agreement with and at a Read, time he which any right. Speaking makes no claim to exclusive of oil get burners, said, “We were our first along February, deliveries the first of and we did get Again quote plaintiff’s testimony: them.” we deposition you “Q You recall in this were question your
asked the whether conversation with you your Mr. Read was before or after took first you burner order, do recall that? “A Yes, I do. your
“Q What was answer then? “A I took our orders before I talked Read with particular on that occasion. you backlog Then “Q did have a of orders at you
the time talked to Mr. Read?
25o backlog you call not what would No, “A had a few orders. business. We
A“Q few?
“A Yes. many you ? did have Q How
‘ ‘ that, but, don’t I could answer “A I believe my we numbers did not have the recollection, best we operating in full force. later on when
had ‘‘ you ? taken these orders listed Q had When They along taken there in the sum- “A were *21 they It common talk that had mer of 1945. was planned were we
making burners the war restrictions when inquiries for over. We had lots of them get feeling assured some. being took a we would few, Most of them were taken on the basis of installed when received. you any spring taken before the
“Q Had summer of 1945? No,
“A had not. we your deposition you your “Q You said took according your is that June, first one recollection? best say “A I would that would Yes, be reasonable place it.” time to on prior The to the deliveries with Read like other were made deliveries holders of stoker aon franchises nonexclusive basis.
Plaintiff introduced in evidence an advertisement directory published telephone in the of March, 1945, advertising oil burners and coal stokers, and con- tinuing : Buy
“Where to them Oil Burners N HOWLAND C CO SW 6th............BEaeon-5139 FIREMAN
IRON MFC CO 17th 4784 SE EAst-2121” paid This advertisement was jointly. pub- defendant The advertisement was prior alleged agree-
lished to the date of the exclusive clearly they bought ment and indicates that could be either from the or from the defendant. The plaintiff submitted an identical in De- advertisement telephone 1945, for cember, inclusion in the 1946 book. specified grounds of defendant’s motion for a directed verdict are: produce any
1. making Failure to evidence of the of a contract or “such contracts, as are relied complaint.” in the prove 2. Failure to contract or by anyone contracts entered into were author- represent prove ized to the defendant or to rati- fication.
B. That the contract is within the statute of frauds taking
and there is no evidence the case out of the statute. sufficiently
4. That there is no evidence definite binding to constitute a contract. any
5. That is no evidence there breach such appears “any *22 since it contracts, that such con- subject being tracts were to the oil burners subject sys- available and were allocation by tem which was to be administered the defend- any ant, and there is no evidence that such delivery burners were for available the de- fendant under that state of facts.” any damages 6. And that there is no evidence of any alleged incurred a result of breach contract.
We will first consider the defendant’s contention showing that there ivas no substantial evidence that relied was made whose by anyone it ratified by action bound the defendant that the defendant. this iskue we think has Upon the better of the In this argument. considering ques- suffi- tion we shall without that a assume, deciding, ciently agreement definite oral was made between Read and the was not within the statute frauds.
Mr. Read was the district sales in an manager area eleven western covering states including Oregon and was in charge sales the western division. His was to set job up organizations dealer “line and to dealers and up for their franchises”. arrange evidence discloses there many were dealers the western division. Mr. Read testified that it was understood that plaintiff burners, could sell oil and, he “it is quite added I probable told him to go ahead and sell oil is, if burners, he could get * * them, The arrangements whereby the plain tiff the stoker acquired franchise were made con versation Read, with and under then agreement made the acted as distributor under some form of working agreement the sale of stokers for a considerable to the period prior his receipt of written franchise. No question raised the de fendant as to the plaintiff’s to act as right the defend ant’s dealer for the sale of stokers prior written therefor. providing We think the course of dealing between the parties, with coupled the evidence concerning the of Read’s scope duties, constituted some evidence of his if apparent, not actual authority.
His dealings relation to the stoker contract were known to and approved by defendant company. Pur suant verbal agreement Read, with with whom he had negotiated carried out a previous verbal
258
agreement pending the execution of a written fran plaintiff some of a received kind contract chise, whereby a he became dealer defendant’s oil burners. 21 wrote the defendant’s home March 1946Bead On “My as records office in follows: indicate Cleveland operating on more or has been less Howland * * dealership sug implied basis and Bead “working arrangement gested with us be that his days (I suggest) from There 30 date.” cancelled empowered to no that Bead was execute evidence think evi franchise, a but we there was some written apparent authority negotiate his actual and dence of agreement working pending a written franchise. Although grave questions concerning arise the terms performance, its fact and remains was made between that some contract parties through Bead dealt defendant understanding with their with eaeh other in accordance had been contractual relations established. We authority, that Bead had real evidence find substantial apparent, to authorize the to act as superiors issuing pending action his distributor following support authorities franchise. The a written Hillyard Hewitt, v. 61 P. 58, Or. 120 our conclusion: Heilig Co., 185 P. 408, 909; v. Theatre 94 Or. Rae 750; Packing Gross, 20; v. 131 Or. P. 580, Co. 283 Carstens 152 P. Co., 593, 77 Or. v. 235; v. Roth Calvert Moll Stage P. 412, 24; Gostlow, 25 36 Aerne v. Co., Or. Idaho v. 277; 118 P. Cranston West 113, Coast 60 Or. Life Corporations, 142 P. 13 Am. 116, 762; Jur. Co., 889, 72 Or. Ins. Stromberg-Carlson 916; Barber v. 915, §§ Mfg. Telephone Neb. N. W. We Co., 157. only may point that there not evidence at this add nego working dealership which was of a but also that there is tiated Bead *24 of certain of tbe some substantial evidence terms of agreement, specifically that it was exclusive dealership period and that duration for its the year. of one alleged
We will next the consider whether oral agreement, by plaintiff, as testified to the is enforce- purpose able For under the statute of frauds. the of discussion', this we will assume that the contract is definite and otherwise enforceable. In his brief the plaintiff contends that the contract “is not a sales agency Secondly, but rather an contract, contract”.
the contends that: *
“* * dealership if even contract be con- Appellant’s sidered as sales contract, deliveries September of oil burners between and December, subsequent delivery February its 1945, and 22, on eight receipt pay- of oil burners, the of ments therefor between oil burners delivered September and December, 1945, constitute part performance such as to take the case out of Statute Frauds.” Plaintiff also contends that the statute of frauds by was waived the defendant when it set forth in its money owing answer a counter claim for on account goods, wares merchandise furnished plaintiff, agreed value $8,882.75. It will be contending observed that in that the contract should agency be deemed an rather than a sales contract, the deny does not that oil burners were sold purchased plaintiff, the defendant and who took contrary, plaintiff, title thereto. On the counsel for the argument in his before this court, stated: agency maintain
“We the contract was both an paid contract and a sales contract. We for the many respects acting burners, but in we were as agent Manufacturing for the Iron Fireman Com- calling notably filling guarantee, pany, on their ’’ they upon. people directed that we call position, correctly interpreted taking In this counsel purchase con- in so the evidence far sale concerning may be said existence cerned. Whatever agency, parties of an the entire conduct conclusively defendant sold the establishes that plaintiff, plaintiff purchased oil burners paid to his them, and then as vendor sold them for attached to the customers. The exhibit which is own complaint profit purpose showing which *25 plaintiff would have made on 82 burners for which price at he he had the orders, received shows which purchased price and at which he would have the would profit sold his the he would clients, have to which with The testified in connection have made. alleged oral that Read: the * * * definitely price the fixed said “A type gun the a differential model, at on with $85.00 of on the model. Vortex $25.00 That be
“Q would $85.00 $110.00? yes. they is what came to, “A $110.00 you say not “Q him, to whether or What did price? you them on that kind would handle of price not that too far Well, “A I did consider way of in view of the market which was out the willing pay present I I at that time. said was price them.” for is the same effect. evidence
Other By verdict, for nonsuit and for directed motion presented by requested instructions, the defendant the applicable The statute of statute of frauds. the issue part the sales act reads which is a of -uniform follows: “ any goods (1) of A to sell or sale сontract exceeding or shall choses in action value $50 by buyer shall not be enforceable action unless accept part goods con- or choses action so actually sold,
tracted be sold or receive the give something or in earnest to bind the con- same, part payment, or in or unless some tract, memorandum in note or writing sale be or by signed charged party agent to be or his behalf. “ (2) provisions apply of this section every notwithstanding such contract or sale, goods may be be intended to at some delivered may future or time not at the time of such con- actually procured pro- tract or sale made, be or ready delivery, may vided, or fit or for or some act requisite mailing completing be for or thereof, rendering are delivery; goods the same fit for but if the especially to be manufactured the seller buyer and are not suitable for sale to others in ordinary course of the seller’s business, provisions apply. this section shall not “(3) acceptance goods There within meaning buyer, of this section when the either delivery goods, expresses before or after becoming words or conduct his assent to the owner specific goods.” § of those L. A., O. C. 71-104. question
Our purchase first is whether a contract of *26 agreements and sale which also includes other estab- lishing agency, a relation of, to, or similar is within the statute Willi stem frauds. rule set is forth as follows: though “A contract within the Statute to as portion performance promised by some of the the may
defendant, not be as to the remainder. Such any a contract is nevertheless unenforceable in part, entirety, since the contract is an and the fact part the unen that cannot be enforced involves though
forceability Even contract of the whole. the portion of in its nature and a divisible is divisible performance may the not be on both sides within aAs same result must be reached. Statute, the but a is not several contracts divisible contract required single party agreement, neither can be * # *” perform part unless whole is enforceable. the § Contracts, on 532. Williston we Contracts, of the Prom the Bestatement Law following: read the one or more a contract consists of
“Where promises Statute, because of the unenforceable promises are not it, more which within one or long former so as the latter are unenforceable longer; unperformed unenforceable but no remain only promise performance except or of the that where exclusively promises bene the Statute is within forego party, agreeing party, ficial any remainder one may performance render the claim to such Bestate contract enforceable.” § 221. Contracts, I,Vol. Law, ment plain Rugh P. Soleim, 92 329, 180 In v. Or. upon a oral contract to recover commission tiff sued negotiating or trade a for the sale personal property. At the close land and defendant’s testimony plaintiff, the defendant rested for the ground verdict and moved for directed sustaining plaintiff’s claim there was no evidence said: “The frauds. The court the statute of within proper of the issue.” solution directed verdict quote: We they claimed, however, “It inasmuch personal property
allege in- be that some as their services for as well deal cluded drawing helping up contract and to close plaintiffs recover at least are entitled to deal, *27 acting than as a for the services other broker to purchaser property. a for real secure stated, however, The contract a is not severable one. It is for value separate lump a sum without reference any particular as hence, item and it includes of services within the statute frauds, the whole stipulation is void be enforced as such, and cannot being plainly upon the contract the action * * * quantum not meruit. It would a be an if real evasion of statute estate broker negotiate assuming appointment to act under oral a of land, sale should be allowed to tack claim his drawing for that service another demand for a by deed make the latter device which he says, could recover on which the law writing containing is certain void unless it is embodied in ** *” prescribed terms.
Many support. cases are cited in Pettigrove
The case of
v. Corvallis Lumber Manu
facturing
Co.,
33,
21 P.
198 is
Or.
2d
cited Willis-
support
quoted supra.
ton in
of the text
This also
brokerage
was an
action
recover
commissions under
agency
an oral
per
contract for the sale of real and
property.
sonal
The
conceded and the court
recovery
held that there could be no
unless
con
tract was
since it
divisible,
included both real and
personal property. Upon proof of the oral contract,
personal property,
and that it
both
included
real and
challenged
sufficiency
the defendants
of the evi
granted.
dence motion for nonsuit which was
plaintiff appealed and this court affirmed.
It held that the contract
not
severable since the oral
apportionment
price
no
contained
of personal property.
support
between real and
In
decision the court cited
Stearns,
Jackson v.
Prom a note the editors of following: universally by general approved the
“The rule parol if and indi- courts is contract is entire that, part the statute, of it is within the visible, and although part of unenforceable, whole contract is by L. R. 71 A. Anno., it is the statute.” not covered 480. by twenty supported four
The from text is decisions English states of the union well as federal applies with the rule authorities. reason behind pro- equal types all of contain force to contract which Accordingly, visions within the statute of frauds. provi- where the contract indivisible and contains is together with other frauds, sions the statute of within provisions the statute, not controlled which are following contract has been unenforceable in held (1) personal of for the sale real cases: Contracts property; personal (2) contracts to devise real relating property; (3) part contracts in to an interest performed (4) part in not be land; in contracts part year; (5) within one in consideration contracts (6) part marriage; to answer for the contracts (7) for for the another; contracts commissions debt personal (8) property; of real and contracts in sale containing part personal property for sale of but stipulations cited not within the statute. See cases pp. support 495 in A. L. R. and eases cited 480 following text: of the
“A of a is contract for sale chattel none the incorporated the statute because there is less within stipulations in the other which are not contract if the is statute, entire, within the contract brought operation whole within p. Statute 320. of, §404, statute.” 27 C. J. Frauds, 2. In the rule C. S. is stated as follows: J. apply, “In order the statute frauds agreement or must transaction constitute sale if the is one to sell; but, contract to goods, requires parties sell the fact that also it something to do else does not take out of the it * * * statute.
í “An i '(cid:127);} [*] agency [*] contract as such is not within the statute frauds, but, where also provides goods purchase prin for the from the cipal by agent, provision such is within the # ° *” statute. § S., Frauds, C. Statute of, J. p. 624. *29 Cassidy Corporation, In v. Cheese Kraft-Phenix plaintiff Mich.
285 alleged N. 426, 280 W. the sued an 814, whereby agreed
oral contract
the defendant
to
grant
plaintiff
manufacturing
the exclusive
selling rights
specified territory,
product
a
within
aof
specified
known as O-Ke-Doke. The
contract was for
period
provision
required
one
of
of
time,
which
the
plaintiff
purchase
minimum
from the defendant a
pounds
per
of
5,000
of
cheese
month. The cheese was
product.
used in the manufacture of the
Plaintiff
alleged
agreed
purchase
that he
the cheese from the
manufacturing plant
to establish a
defendant,
promote
product,
expended
of
sale
and that
he
money
preparation.
of
substantial sums
“Appellant asserts that the order of the circuit
judge sustaining
part
defendant’s motion to dis-
erroneous
miss was
because
contract was in fact
employment
plaintiff
one
the nature of
defendant for the
agency,
not
therefore
within
posi-
it
this
of frauds. We think
is clear
statute
provided
tion cannot be sustained. This contract
by plaintiff
purchase
from
defendant
very much in
the amount
merchandise
excess of
contract
under
which rendered the
unenforceable
wholly
the statute of frauds. The contract was
executory,
provisions
must
its interrelated
together.
provisions
or fall
The noted
of thе
stand
If one
invalid the
contract are
severable.
not
v.
is unenforceable. Thorbahn Walkers
N.
Plaintiff is
Estate,
269 Mich.
“In at above conclusion arewe plaintiff’s contention that mindful partially performed by has been oral contract therefore, should be held Here and, valid. again position plaintiff’s is not tenable because fairly merely declaration, construed, discloses things prelimi- which were did some performance nary execution of the con- performance them in tract, that he did not * * * ’’ Cassidy v. Kraft-Phenix Cheese contract. supra. Corporation, Co. v. John D. Park Dr. Miles Medical & Sons
See also 373. 220 U. S. Co., *30 distinguish Cassidy the case,
Plaintiff seeks to directly but we think it incorrect, it as criticizes also point. the is essential feature of case that there quantities The goods purchase obligation to brought the the statute of frauds, case within which
267 obligations of a dealer in the nature that it involved agency contract indivisible. the plaintiff’s notwithstanding the brief, In state- plaintiff appears court, ment made before this to take position must be the contract either one of the agency, If sale or of and cannot be both. we were com- pelled classify the as one or the we other, should not hesitate to hold that the contract was one Concerning uncertainty of sale. cases which arises, as to whether contracts should be construed as sales agencies, quote following or we from Mechem on Agency: “These doubtful cases are to be not determined,
by parties apply the name which have seen fit to by to their contract but its true nature and effect. The essence of sale the transfer of the title to goods price paid paid.
the transfer goods for a or to be Such puts has obtained the transferee, who again,
to sell in the attitude of one who is selling goods, his own him and makes liable person from whom he received them as a debtor price paid agent for the to be and not liable as an proceeds agency for the resale. essence of delivery goods person to sell is the of the ato who property is to property them, sell not as his own but principal, who remains the owner goods right of the control the and who therefore has the price sale, to fix the terms, recall goods, proceeds and to demand and receive their agent’s when less the but sold, commission, who has right price no to a for them before sale unless agent.” Agency, 1 sold Mechem on Second § Edition, 48. Mfg. Heywood Co., 359, v. Doernbecher
In Or. plaintiff, P. written contract P. 357, a manufacturer of furni- defendant, secured from *31 268 right specified period, the exclusive for a
ture, to sell products specified territory. a defendant’s within agreed buy products all of the The of the specified. opinion Prices defendant. were of this only portion court forth a small sets of the written Unfortunately, a search of contract. the records dis- original pleadings, closes that the abstract, briefs, copies library, as as the for well thereof our are all missing. provided since the However, contract product sell defendant its entire to the plaintiff, certainly we must conclude that the obligation diligence marketing assumed some product. The court said: “An examination of the contract referred to parties convinces us that it was the intention of the property the absolute in the furniture was by to be transferred from the defendant the de livery goods acceptance to and the thereof by plaintiff, pay keep which was to for and thereby creating, properly them as the lower court agency: Eng. a sale and not an 24 held, Am. & Enc. (2 ed.), stipulated 1027. Law Because the defendant products to sell the entire manufactured plaintiff, designated which in the schedule of prices furniture and the list of issued the de agent territory as fendant its sole in mentioned, change did not the character of the transaction. Thus, contract the manufacturers of corn cut: appointing person general agent ters for the western providing sale of the exclusive machine and payment subject for the of a certain amount for each, to a for cash, discount was held to be a agency: Alpha sale and not of Checkrower v. Co. Bradley, (75 369). 105 N. Iowa, 537 W. To the same Roofing effect see Granite Co. v. Casler, 82 Mich. (46 728); N. 466 W. Mack v. Drummond Tobacco (67 Rep. N. Co. 48 Neb. W. 174, Am. St. 691).” al., et In v. International Harvester Co. Williams plaintiff sued automobile 172 Or. 141 P. 2d 837, Company damages for dealers and tbe Harvester wrongful deprivation of a Tbe of tbe use truck. sought dealers were found and the to hold liable Company theory Harvester on the the dealers *32 agents company. The court said: were “* * * complaint alleges The amended that the agents defendants Baur Amundson & of Inter- were agency by national, but no was established proof. may gathered It be from the record that International manufacturer of automobile trucks and that Amundson & Baur are dealers who purchase such trucks sell them at retail. The plaintiff gave order which truck here question was and, directed to Amundson & Baur, anything they so far as in the evidence discloses, made the sale to Mrs. Williams on their own behalf agents and not as for International. Amundson & bought Baur the truck from the latter defendant, assigned to it Mrs. Williams’ note and chattel mort- gage payment, to secure them, and, when Mrs. Williams paid they paid in turn International. The relationship buyer, that of seller was not thаt agent.” principal Terstegge Stiglitz In & v. Co., Stratton Co. Furnace Ky. plaintiff, 678, 258 81 S. W. 2d cited 1, presented as issue was whether the had rights acquired agent. certain as seller The court said : straight-out “It is true there awas sale and
purchase the furnaces the seller exercised price no dominion over resale or otherwise con- disposition. annually their But trolled the contracts repeated Terstegge Company that Stratton & was agent of the the sole manufacturer and exclusive furnaces, dealer and that Kruse & Dewenter aro prevent designated competition
would tory. in the terri something Hence there more than a mere was purchase. strictly speaking, sale and there While, agency repre no and the dealer did not fact, sent the such relation as existed is manufacturer, frequently agency,’ note; called ‘sales 55 1343, C. J. Company, v. Hendrickson International Harvester agency,’ A. 2 100 or ‘exclusive C. J. 161, 135 702, Vt. Country Company Light 421, Home & Power note; Fitzgerald Ky. Company, 313, v. 219 292 W. J. J. S. Company 833; Branch of International Shoe Peters Ky. (2d) Jones, v. 994. Whatever S. W. may relationship a substan be there was called, property right purchase tial annexed to the sale and protected the courts and for the which was might been violation of which relief have obtained against causing contract. the one a breach R. L. 1199; 45 A. L. R. C. Annotations, 1200; * * *” Sedgwick Damages, § on 633. frauds not involved. statute of upon the case of Beebe v. Columbia Plaintiff relies *33 App. R. 117 2d 624. In Mo. S. W. Co., Axle plaintiff for breach sued the defendant that case the employ plaintiff as exclusive to of an oral equipment agent sale of manufactured for the designated plaintiff exclusive The was as defendant. factory agent distributor.
“By prices the retail contract, the terms of said plaintiff agreed defendant’s at which the was to sell the passenger for the axles were car $69.00 truck axle; for the and it was axle and $125.00 plaintiff agreed should allowed a that the be dis- price said list or retail and that of from count he 50% whom allow the dealers to said in turn should resulting in com- a discount of 25%, axles were sold compensation to the $17.25 missions passenger car axle sold and for for each $31.25 * * *” axle sold. each truck Upon making of the contract the “entered npon employment” performed his and all of the duties imposed upon pro- him all of his time and devoted moting prod- the sale and of defendant’s distribution period The contract for an indefinite uct. was January time. made on 1935 and can- It was was complaint charges on 5 December 1935. The celed unlawfully discharged just plaintiff was without cause being given opportunity a reasonable and without preliminary the results of his avail himself of efforts recovery expenditures, and seeks the reason- plus expenditures his services able value his amount which he received less the as “commissions or gross profits” The court on sales. said that the con- appear not to be а tract “does contract of sale, but agency”, appears a contract of to be and the court although employment contracts of held that for an may time be terminated at will, indefinite nevertheless, agent appears appoint- that the if induced his it expense good to incur faith, ment in labor without opportunity having recoup expense, a sufficient such required compensate principal be will him, exception held that came within it was quantum and was entitled to recover mentioned on The defendant contended that meruit. the contract question a sales contract and was void under the dealing of the statute of frauds section with the sale goods, and merchandise. wares court held that procedure plead Missouri one must under frauds and that defendant statute had not concerning pleaded goods, section sale of but concerning only per- the section contracts not to be year. one The contract within was in formed fact ter- *34 year plain- one and the court within held minated 272 quantum
tiff could recover on meruit to the extent performed. that it had been The court said: question “If the contract in were a contract of question quantity, sale, the of its indefiniteness as to prices, obligations terms, and would be of im- portance and the ; authorities cited the defendant support upon in of its contentions, based such mat- applicable; being, ters, would be but, not so such They inapplicable. authorities are involve sales only.” contracts distinguishable, being quantum is The case action in meruit not the contract for breach thereof.
It should be
observed
connection with the Beebe
supra,
case,
and the eases
be discussed,
now to
that the
dealership
construction of a
contract, as to whether it
agency
may
importance
is a sales or an
contract,
be of
a
the decision of case for reasons which have no con
nection whatever
the statute of
with
frauds. For
example,
solely
whether
contract be construed as
agency
sales
contract, or
contract,
one
sales
agency
may
combined,
be determinative
right
yet,
the contract,
the classification of
cancel
purpose
bearing
the contract for that
would have no
determining
not,
oral,
whether or
if
it within the
statute of frauds. In the case at bar the
cites
dealership
a number of decisions in which
contracts
partaking
agency
have been classified as
rather than
writing,
but in each instance the
sale,
contract was in
right
the issue was the
to terminate and the statute of
qxe:
frauds was not involved. The cases thus cited
Supply
Bredemeier v.
Co., Or.
131 P.
Pacific
(sale
agency);
Appliances,
Bendix Home
Inc.
Accessory
(sale
Co.,
v. Radio
í 3 %
Plug Company
Spark
v.
Com
Automobile Sundries
agency); Kaempfer
pany,
(both sale and
v.
veyer F. Co., Co. v. Palmer-Bee 135 2d 73 in Magrane-Houston Co., Fashion v. Standard Co. 258 S. L. 254 F. 259 In the 346, 653, 493, U. 66 ed F. 793. supra, case,
Palmer-Bee the court said: may it “At be outset, remarked ‘agency’ frequently word used to indicate that a right specified dealer has the exclusive to sell a territory; article in certain but such dealer does thereby represent agent not in the in the manufacturer as sense which that relation is understood principal agent, simply buys the law but regular from the manufacturer course of public. trade and sells the article to the Such a * * *” agency. transaction is a rather than an sale Magrane-Houston supra, In the case, the Court of Appeals said: * * “* easily distinguishable The case is regard this Ewing, from Willcox & Gibbs Co. v. 627, U. Ct. L. S. S. 35 Ed. 882. Full title
passed plaintiff from the to the defendant. The selling goods defendant its own to its own delegated authority, customers; it not, under selling plaintiff’s goods plaintiff’s customers. Upon appeal Supreme to the United States Court the ruling same was made.
We will next consider cases cited apparently involved,
which
involved, oral contracts.
Brewing Corp. v. Iowa Fruit and Produce
Falstaff
112 F.
an action for
Co.,
2d 101 was
breach of what
appears to have been an oral contract and for con-
spiracy
agency
to breach a sales
contract and
harm
Judgment
plaintiff.
business
prepa-
was affirmed. The
entered
performance
ration for and
of the contract and the
away
defendant then terminated the contract
lured
Upon
plaintiff’s
appeal the
salesmen.
defendant
right
contended that it had a
to terminate the contract
quantity
because it was indefinite as to duration and
*36
purchased.
agency,
The court
this
an
be
said
was
a sales contract.
frauds
not
not
The statute of
contrary
invoked but on the
the issue related to indefi-
mutuality.
niteness or lack of
The court said:
“* * *
Whether or not this is
purchase
approximate quantity
a
or
definite
is
important
sale,
not
but one of
is not void for
here. This is not a contract of
agency.
agency
A
of sales
sales
contract
uncertainty,
lack
indefiniteness,
mutuality,
quantity
so
no
called, because
definite
*
*”
*
is
in the contract.
named
raised,
If the issue of the statute of frauds had been
question
presented.
a different
would have been
Kelly-Springfield
Bobo,
In
v.
4 F. 2d 71,
Tire Co.
and the defendant entered into an oral
whereby
contract
was to
the exclu
have
right
purchase
products
the defendant’s
sive
and sell
might prescribe.
prices
at
Plaintiff
such
defendant
time and attention to the busi
was to devote his entire
ness. It was contended
the defendant that the con
agency
one of
terminable at
will;
tract was
uncertainty
for
it was void
the contract
The
void under the statute of frauds.
court said:
“ * * *
Supreme
As said
Court in Banker
Pennsylvania,
Brothers v.
210,
U. S.
32 S. Ct.
‘
38,
in which find it to their interest to position pur- of vendor and vendee for some poses containing under terms which, purpose restricting securing for the sales and payment, principal creating come near to the relation of agent’.” It was held that the defendant could not revoke the at contract will it “whether construed as a contract be agency or a contract of sale.” It was further held uncertainty that the contract was not void and that might fully performed year it be within and “there- application.” fore the statute of frauds has no implication clear if the contract had been one performed year which could not be within one recovery. statute of frauds would have barred In Erskine v. Chevrolet Co., Motors 185 M. C. plaintiffs part E.
117 S. agreement 706, the sued in an oral they under which became dealers to handle product. Upon representations defendants’ faith of by defendants that the contract would not be canceled and that automobiles would be delivered as ordered, plaintiffs expended large money sums of in estab- lishing agencies obligated and the like. The defendants *37 plaintiffs buy. themselves to sell and the Thereafter repudiated only defendants the contract. The com- concerning ment of statute frauds is as follows: “The is not affected the statute of frauds. The two cases relied on defendants suggestion City as to statute, viz. W. App. Fire Ins. Co. v. Lichtenstein, Div. 681, Supp. Pearlberg 685, 169N. Y. 146, v. Levisohn, Rep. Supp. Misc. N. 95, 182 Y. 615, both were decided in York; New the statute of that state and being essentially ours different as to contracts performed year, not to be respects.” within a and in other impossible It is to tell whether the court based the right recovery upon repre- of contract false upon. sentations relied We find no statute North required Carolina which then that such contracts be writing. Farley Manuf’g Plaintiff also cites v. Kaufman plaintiffs Co., 78 Iowa 43 N. 612.W. who were cigars manufacturers sued the defendant to recover money owed, which claim was admitted. The defendant cross-petition alleging whereby a filed a contract he right plaintiff’s cigars received exclusive to sell designated territory whereby within defendant expenditures developing was to make territory. plaintiffs agreed Defendant further supply requirements long defendant’s so as defendant plaintiffs desired to deal and that breached the con by refusing cigars. tract to furnish It was held that sufficiently By way the contract was definite.
defense it was contended that the contract was unen forceable under the statute of frauds since it was not writing. quoted The court the statute as follows: “* * * (1) Such contracts embrace those in personal property, relation to the sale of when no
part property is part delivered, no * ® *’’ рrice paid. is It was held that was entire and that there separate was not a cigars contract for each lot of consequently, portion delivered, that was since a cigars paid were delivered and it for, was held part performance that there was such as to take the case out of the statute of frauds. The inference clearly to the effect that the contract would have been delivery unenforceable but for the fact of payment. Upon question as to whether the statute *38 applies involving pur- of frauds to dealers contracts against plaintiff’s chase and sale, the case is con- question alleged part performance tention. The will be considered later. Company
In Michelin Tire v. Williams, of Calif. Or. 268 P. defendant 56, the sole trader engaged in the retail tire business. Pursuant to a agreement written plaintiff’s defendant became a dealer provided
tires and tubes. It was that the authority adjust respect dealer should have claims in company’s to tires sold him, should maintain the prices, list all should sell articles in strict rotation product. in accordance with serial numbers of the concerning Thereafter an oral was made, which the court said: plaintiff says is a case “This where the to the you give defendant effect: ‘If will me an addi- guaranty
tional to the amount of I $15,000, will you goods sell The on credit to the amount of $25,000.’ guaranty given, goods but the are not de- any given livered nor is earnest to bind the con- * * *” tract. appears
The court set forth the statute of frauds as it in the sales act and said:
“ * * * may equity Whatever be the rule in the contract could not be enforced at law. The writer impression opinion at first was inclined to the delivery guaranty might be construed as an ‘earnest’ to take the contract out the statute, but the authorities are to the con- trary: Nussey, Walker v. 16 Mees. & W. 302. We reluctantly plaintiff’s repudia- conclude that while only tion of the contract is censurable in morals its legally discharge guarantor effect any legal liability was to from plaintiff upon it. The guaranty was not in evidence. If it had recited the accepted in *39 and had been of the contract terms any agent
writing authorized or acceptance might plaintiff, have been a suffi- such defense; authorized this memorandum to have cient partial to that effect. While is no evidence but there performance in regard of an oral contract conveyance has been sometimes held in of lands equity has a contract out of the to take such statute, regard to a contract for the rule never been the * * * goods: sale authority proposition for a direct The case is dealership provisions contains an oral contract which together provisions purchase other sale, for with concerning guaranty, is the statute of frauds. within Lacy, App. v. 114 Ind. also International Shoe Co. See N. E. 2d 636. When that statute is invoked the 53 641, is cited demonstrate that real issue authorities an the contract contains to sell or whether provisions. either with or without other sale, separable are not in accord as to authorities whether single may portion of a contract be enforced if not portions other are within the statute when it. within Compare supra, Williston, with cases cited alleged A. R. 496. In the case at bar the contract is L. clearly unnecessary that it is so indivisible to decide provisions the result would be different if the whether separable purchase were from and sale those which agency. the nature The sale of oil burners are of the the defendant essence of agreement. provisions, The other the entire if divorced meaningless. would be therefrom,
Since it is established and conceded in the case contract involved at bar that oral transfer of title, it indivisible, the contract is follows that it and since of frauds and is within statute unenforceable statutory exception, i. e., “unless unless within the accept part goods buyer in action or choses shall actually receive sold, to be sold or so contracted give something in earnest bind the same, * * * part payment, or in contract, plaintiff’s next consider the contention We will if the contract is within statute of frauds, even by part performance. it has been taken out of the statute Dodge In al., the recent case of et al. v. Davies et plaintiff brought equity 2d 13, 179 Or. P. suit in compel specifically perform the defendant alleged whereby oral as defendant, landlord, plaintiff, property, to lease to the real tenant, years. for a term of Plaintiff that in reliance *40 expenditures on the oral lease it made substantial permanent improvements property. on the It was con tended that the case was taken out of the statute of part performance. frauds acts of This court said:
“ * * * To take such an oral lease out of the part per- statute of however, the acts frauds, exclusively formance must be referable to the oral * * * ” lease.
In Brown v. Lord, 7 Or. 302, alleged sought specific performance vendee of an oral quoted contract for the sale of lands. The court with approval from an Indiana case to the effect that the performance “palpable act of must be and evident to * * * senses act that can be relied on as certain, * * * ’ misunderstanding can about which there be no ’, and then added: “ * * * part perform- But even these acts of agree-
ance must be done with a direct view of the being performed ment and such acts as could be agreement done in no other view, or the will not be * * * ” taken out of the statute.
280 effect see Armour & v. Freeman
To the same Co. Baking N. 197 Mich. 163 896. The burden Co., 421, W. delivery accept to show that pursuant oral ance is contract. Libman v. Fox Scrap N. 551. 485, Iron 175 Wis. 185 W. Pioneer Co., al., 500, Director 121 255 P. See also Dunis v. et Or. Jenning 48 85 Brennen 201, 517; v. Or. P. 474; Miller, Derby, P. 265 425. The above cited cases 574, v. Or. equity. tried in were prevails in
A stricter rule actions at law: * “ * * performance partial anof oral While conveyance regard to contract in lands has equity take a held contract out been sometimes regard rule statute, such has never been the * * * ” goods to a for the sale of Michelin Company supra. Williams, v. Tire of Calif. P. MacKenzie, 1039,
In v. Or. Galvin brought money an action of recover law to agreement upon an to furnish the oral defendant two they The defendant’s answer dresses. accepted by her. never received and The trial were was one for the sale of court held that price exceeding property personal at a and that it $50 frauds. The court the statute of then sub was within jury question goods as to whether the mitted to accepted received and under the contract. had been Supreme question Upon appeal Court the entitling jury there was evidence to find whether *41 acceptance receipt an there was such of the satisfy provisions property as would of the statute The court said: of frauds.
‘‘ * * * acceptance an To constitute within the meaning provision, purchaser of this must so property prove as to that he deal with acknowl- edges of the contract. There the existence must be
281 recognizing part plainly the exist- Ms act on some property been that the has contract and of the ence property The therewith. in accordance received completely includes both which transferred, must be by acceptance delivery by the vendee. the vendor delivery goods the vendor a of the There must be right possession vesting an intention with receiving must be an actual vendee, and there in the acceptance by the latter with the intention * * * ” taMng possession as owner. Sheedy, P. an 613 was 74,
Brown v. Or. personal prop- possession recover action at law to erty. purchased that he had The contended agreement. an oral The cattle from the defendant coupled frauds defense was the statute of with any accept claim not or receive that the did part property pay any part purchase of the or of the money. court referred to the L. A., The statute O. C.
§ provides 2-909. Par. that an for wMch 5, personal property price the sale of at a not less than buyer accept is void and receive some unless $50 part personal property, pay or of such at the time part purchase money. of the some court then cited approval portion with MacKensie, v. Galvin supra, quoted. significant which we have It is that in quoted Sheedy, v. action, Brown law the court with approval Reynolds from 48, v. Or. 69 P. Scriber, equity suit, as follows:
“ * * * part performance, To constitute a how- meaning within the of this rule, the acts relied ever, purpose for that must have reference clearly appear solely contract, to have been done performance. merely pre- with view its Acts liminary ancillary agreement, such as delivering a giving an abstract of title, directions conveyance, preparation agreement, *42 282
making acts, and other like are not suffi- valuations, Story, Eq. (13 ed.) § 2 cient: Jur. 762; Waterman, Spec. § Perf. 262. Whatever was done must have part perform- been done under the and in and should tend to contract, only ance of terms, its show not agreement, that there had been an light upon but throw some nature, its so that neither the fact of the solely upon parol contract nor its execution rests * * * ” evidence. Sheedy It held in Brown v. there no were actions sufficient take the case out of the statute of frauds. Cassidy Corporation,
In v. Cheese Kraft-Phenix 426, 814, 285 Mich. 280 N. W. the court said: arriving “In at the above conclusion we are plaintiff’s mindful of contention that partially performed by plain- oral contract has been again tiff and, should be therefore, held valid. Here plaintiff’s position is not tenable because the declar- fairly merely plain- ation, construed, discloses things preliminary tiff did some which ivere performance or execution of the not contract, * * *” performance he did them in of the contract. supporting Other authorities accept the rule that receipt payment exclusively ance and actual must be referable to the contract are as follows: 37 S., C. J. Doyle-Kidd § Dry of, Statute Frauds, 150; Goods Co. Ingram, v. 110 3, Okla. 236 37; P. Kansas Flour Mills Corporation Dreyfus v. Bros., 170 Okla. 40 P. 325, 2d Eagle Milling Bakery, 20; Golden v. Co. Old Homestead App. 59 Cal. 211 P. 541, 56; Mason-Walsh-Atkinson- Kier 99 F. Stubblefield, Co. v. 2d A., C. C. 735, 9th; Ry. Wisconsin, Russell v. M. & P. 39 Co., Minn.
In supra, Libman v. Fox Pioneer Iron Co., it was held that where there are two contracts, one oral delivery goods be shown must written, and one take that oral contract under the made to have been Brister & Koester also See of the statute. out Corp., Pa. 33, Corp. Lumber American v. Lumber Troop Co., Heater Water *43 v. 672; 50 A. 2d Scott & Baumoehl v. Emerman A. 2d Wieser 922; 28 Pa. 368, Sons, Inc. v. Cutler & 79; Y. M. Samuel N. S. Co., 185 Sugar Refining v.Co. Franklin 368; N. Y. S. et al., A. 147. 290 Pa. al., et Eiseman already a there was sub indicated that haveWe testimony nature of the as to the conflict of stantial plaintiff and de transaction between and pleadings In and in the in the evidence. both fendant, plaintiff complaint, an oral relies the whereby the dealer, the exclusive within he became territory, purchase designated and sale of oil the defendant that there whereas the denies was burners, alleges any but that it informed the contract, exclusive accept pending plaintiff orders issu that it would the individual dealer franchises and would dis ance of supply among limited dealers and other tribute its its equitable in a fair and manner. retail outlets There plaintiff plain the after the defendant sold to and the question customers oil burners. The tiff sold to its as рlaintiff’s agency exclusiveness of to the that essence. Evidence was adduced defendant referred buyers prospective to the and allowed him profit he made a the amount of would have on made sale support tends defendant. This to contention exclusively were made which were that sales referable exclusive contract. But on the to the other hand, presented defendant, evidence offered for the jury the reasons consideration which induced prospective purchasers plain- to refer defendant to the on tiff, reasons which were based considerations other alleged than and not referable to exclusive con- inquiries tract. evidence showed Defendant’s were received in such volume that its retail division was they them, unable handle hence were referred to the plaintiff. testimony and defendant disagreement agreement pur- in violent as acceptances sales, suant to which deliveries, payments were the evidence is con- since made, flicting pur- to whether the sales were suant exclusive contract or the non- ques- dealership, exclusive it follows there was jury question tion of fact for determine whether sales, etc., were referable deliveries, by plaintiff. plain- to the oral contract claimed If jury tiff failed to secure favorable decision from the on issue, this then the contract remained unenforceable under the frauds. A careful statute examination of *44 jury any the instructions the to to disclose mention .fails by judge concerning or comment trial the the exist- applicability or ence of the of frauds. The statute requested defendant two as follows: instructions
“INSTRUCTION XV recovery “In this case relies for upon alleged an oral contract to have been made agent you agreement, with of defendant. This if find that it made, was constituted a contract for personal property price the sale of at a of not less meaning than within the of $50.00 the Statute of Accordingly Frauds. the defendant could not be by alleged held bound such contract unless plaintiff accepted part and received some of the property gave something contracted sold, to be or part payment, in earnest to bind the or in contract, writing or unless some note or memorandum in duly by signed or its the defendant the contract was agent. authorized XYI “INSTRUCTION signing case of “There is no in this evidence writing of a accordingly note or memorandum sufficient preclude Frauds will the Statute of plaintiff’s recovery as to each cause of action unless you by preponderance should find of the evidence by delivery acceptance that the pursuant some oil was oral burners agreement. yon In other if should find that words, delivery acceptance by plaintiff to and of all by pursuant solely oil burners received him was placed orders hе had and which had which been alleged by accepted independent defendant delivery acceptance oral contract, such would compliance not constitute with Statute Frauds your toas other orders and in event verdict would be the defendant.” give
The court refused to the instructions re quested, exceptions which refusal, were taken and allowed. The defense of the statute of was frauds also raised motion for nonsuit and for verdict, directed aspect but this of the case we cannot hold that a nonsuit or a directed verdict should have been awarded proven alleged by if the because, oral contract was plaintiff, sufficiently and then the definite, upon proper was entitled, instructions, to have acceptance receipt pursuant issue jury. contract submitted to the must, We however, at point, prejudicial this hold that there error com failing mitted trial court in to submit to the jury arising the issues of fact under the defense of frauds. the statute *45 plaintiff argues that the institution of the
defendant’s counter claim constituted a waiver of the support, following and in
statute of
author-
frauds,
§
ities are
748, Frauds,
cited: 37 C. J. S.
246;
statute of,
Wooley,
App. Reports
41 Mo.
Christensen v.
53;
Thompson Hurson,
v.
not be frittered waiver or * * *” convincing in cases of clear and situations. Biggs, Craswell v. 160 Or. 2d P. 71. inquire We next whether there was evidence of a sufficiently definite in terms to be enforceable. procedure practice The normal under our state would plead to ascertain be what contract in the ings supporting and then to search for evidence it, but attempt procedure to follow this the case at bar gives difficulty. beginning opinion rise to At the of this quoted allegations complaint indicating we agreement whereby claimed an he could to all sell customers such coal burners or oil burners might require. quoted as such customers We other allegations indicating requirements reliance on a con- *46 suggestion complaint no in the tract. We find merely plaintiff entitled to receive burners contract upon equitable among thereof dealers. an distribution plaintiff’s reаds as follows: “Exclu- Point 3 brief requiring dealership sive contract dealer to handle products purchase his manufacturer’s and to all requirements imposes implied from manufacturer obligation require- supply on manufacturer to dealer’s following products.” ments for are cited cases support: Long Drug Drug Co., Beach Co. v. United Company 13 Cal. 2d 88 P. 2d v. 158, 698; Mills-Morris Champion Spark Plug F. Co., 38, A., 6th; 2d C. C.
Jay
Corporation
Appliance Corp.,
Dreher
v. Delco
Caterpillar
Again plaintiff brief its asserts that:
‘‘ * * * dealership under the exclusive parties, Appellant obligated between the was to to Bespondent deliver sufficient burners to enable * * * ” perform existing his contracts then We express no Avith disagreement the authori say ties cited that when there is an except express to the amount of which a manu product facturer is to to a supply dealer, there could no be implied agreement inconsistent therewith. HoAvever, has abandoned all claim to a plaintiff requirements In contract. the oral argument before the court, coun if sel was asked he claims that defendant to fill whatever orders obligated took from To his customers. counsel question, answered: “ * * * is that we could position expect Our deliveries in conformance only ability with factory and based manufacture, equitable distribution * * * n it We do claim among burners dealers. not was a contract.” requirements
It change position is obvious this record sub necessitated absence from the any had stantial evidence that made a parties require ments contract. We have quoted the testi previously him at that Read “warned” mony first of burners would be rather slow. production *47 We have set forth of 18 also the letter October which was sent Vice to the Burg President plaintiff and which that next the stated the few months during volume would limited produced be somewhat because of the difficulties of the reconversion but period, etc., that abundant as materials became more would they all step up production where could point dealers secure as burners as many could and in they sell, which ‘‘ * * * Mr. said: meantime dis Burg the we will tribute a limited our supply available dealers among in a fair and manner.” We also equitable refer to previously quoted testimony of in which plaintiff he said that a he treated the that letter franchise and it confirmed certain terms of the earlier verbal agree ment on which says he relies as “the basis of Respondent’s causes of action”. We are unable see to how a letter expressly that stating defendant would distribute a limited in a fair supply and equitable manner could an be confirmation to agreement supply plaintiff’s requirements to the extent oil of 82 burners the 82 unless burners constituted the plain tiff’s In equitable share. we consider any event, plain tiff bound his declaration made before this court. If it should be argued this change as to position thе terms of agreement constitutes a we variance, think defendant would not in a to position be complain, for the distribution equitable theory was the one which consistently pleadings, proof and brief asserted was by defendant. briefly present stated, is that contention, Plaintiff’s and deliver “in conform- defendant was bound to sell factory ability manufacture, ance to with upon equitable an based distribution burners among dealers” and under that defend- obligated supply ant to the 82 burners which having had taken orders. The defendant failed supply anticipated profits. them, lost Both causes of action are based one and the same original damages contract. second cause seeks admittedly defendant oil because sold at retail burners alleged which is claimed to have been violation of the dealership agreement. although exclusive But there is quota agreement tending support evidence aof dealership first action, cause of exclusive agreement tending support it remains second, showing to be decided whether there is evidence respects sufficiently in other contract was definite be enforceable. The defense contends that there were numerous items which should have been *48 by agreement, covered the but as to the record which, supplies no definite information. It is contended that sufficiently there was no definite as to the of duration the contract. It to be was “similar” to year, the stoker contract which was for one but plaintiff partner evidence shows that and his both con- thirty days that the contract sidered was terminable on Plaintiff that notice. testified the stoker contract “was ” year’s thirty on a days. could be cancelled basis partner His testified as follows: you recognized you “Q Of both course, only operating thirty-day
were aon basis under your contract with the Iron Fireman ? always that, “A that was reason We knew carefully we our orders.” checked so with complaint appears upon the The drawn he theory upon contract was terminable reason that the damages prays the second cause for on able notice. It retail sales made defendant action on account of of day date con June, 1946, the 4th which down to expiration siderably date of the short of the year of termination written one contract. The notice April dated at Cleveland, the defendant Ohio, a matter of that it was written “as 1946 and stated outstanding away any contracts record so as to clear agreements applying to the sale of our now franchise suggested products area”, and it ter Portland mination the date when of the written you will receive this franchise “thirty letter * ” [*] * days from It day appears 4th fixed the June thus day complaint approximately his because that thirty receipt days his the letter from date of Finally April. the record discloses period a contract for the full all claim to abandoned requested the court to instruct of a he year, parties they jury had that if found that made not terminate such contract “Defendant could exclusive contrary deliver oil contract or refuse to burners giving to Plain terms of without such termination, of such which notice must tiff of a notice given time before such termination date reasonable be gave effective.” The court instruction becomes position requested. cannot now take that which he induced the trial court with inconsistent upon the now claim of an to take. His case stands implied provision of the contract that it ter could be giving reasonable notice. minated
291 many The defendant cites authorities to the preliminary negotiations looking effect that toward sufficient; contract are not that a contract must be mutuality definite and that there must be is to —that say, binding obligation some on both There are sides. quoted proposition
authorities also for the if parties contemplate writing a reduction to their agreement complete, it before can be considered then writing signed. is there no contract until the See pp. Williston on Revised Contracts, Edition, 52, 53, Montgomery, 54, 59, et v. 98; Reed al. 196, Or. Paget,
to from determine points. upon those three of modern busi the realities Influenced tendency uphold practice, manifest a to the courts ness dealership here similar to the one asserted contracts grounds against or the of indefiniteness attack on as mutuality. Co., 72, 6 v. 139 Or. lack Moore Shell Oil of Moon New York v. P. Motor Car Co. 216; 2d Moon Jay Corporation Co.,Inc., 3; 29 F. 2d Dreher Motor Car supra; Appliance Corporation, v. v. Schnerb Delco Corp. Brewing supra; Caterpillar Co., Tractor Falstaff supra; Corp. v. v. Fruit Produce Ken-Rad Iowa Co., v. Inc., 80 F. 2d Beebe Bohannan, 251; R. C. Columbia Sargent supra; Drew-English, Inc., Wn. Co., Axle v. v. 373; Nathan Elson & Co. H. Beselin 2d P. 2d 320, 121 Kelly-Spring supra; Co. Bobo, Tire v. Son, & field George supra; 30 F. 2d Co., 90; v. E. Keith Abrams supra; Co., Motors Erskine v. Chevrolet Western Supply Beauty Co., v. 6,133 Duart Sales Okla. Co. plaintiff’s 202. The contract disclosed P. 2d uncertainty opinion not in our void for evidence is mutuality, parties nor it void because the lack of contemplated a later written contract. The evidence clearly pending receipt the written discloses operate was to as dealer. franchise, Having some concluded there was evidence sufficiently required a contract definite sub- which jury upon of the to mission case issues of the meeting and of must next minds we consideration, any determine whether there substantial evidence resulting damage of a of the breach plaintiff. Upon first cause of action the plaintiff had from orders his customers for 82 burners. plaintiff owing The 82 orders were canceled inability the burners from the defendant. to secure his question the failure of defendant is whether agree- a violation of its furnish burners constituted burners “in conformance with the ment to deliver factory upon ability based manufacture, among equitable distribution of burners dealers.” following tending Plaintiff evidence relies quota that his him to more burners show entitled manager Howard, than Mr. of the sales he received.
department company assured the defendant could October or November reasonably expect to receive from to five burners two *51 day depending upon production. In December, factory going was told that was to shut inventory holidays, down for and for the Christmas but he was also informed that the defendant would be resuming year. deliveries as the first of the plaintiff testified: “BY MB. Q COAN: I Mr. think Now, Howland,
yesterday you you Mr. testified that Howard told keep taking on orders for what is the burners, fact about that?
“A That is correct. any you “Q Did he at ever time tell not take
any more orders? any “A No one at time told not to me more take stopped my thought orders. I I own accord. coming factory information from rather insecure.
II “A [*] « * [*] ** We apprised him of the orders we quité had all taken at times, he was enthusiastic showing making about that we were them, on go get and he told us to ahead and take them and your question? more orders. that Does answer you “Q I go think so. Yes, You he said told pleased that he was orders, more and take ahead yon had taken? with those did. “A he Yes, sir, about, was that? When,
“Q “A occasions. That on several you say was the last? When would “Q early or that as October “A He told us * * ”* us in December and he told November, plaintiff, Speaking with the of his conversations Mr. Howard testified: * * * possibility on the
“A I did comment making delivery, on deliv- I him facts and told practically every he called, the fact eries, time pro- being, our we would allocate course, and that dealers, western division duction over our get proportion of them. he his would such earliest of conversations “Q What you possibly you Mr. Howard, can recall, period tell of time these conversations us over what extended? they October, least, extended from at Well, “A they I October, am sure started about the first of through December.” extended on There is evidence that Novem- October, .further the defendant December, ber and manufactured 2291 shipped of which about one-third was burners *52 testified, division dealers. Mr. Howard eastern “the shipped to it, of was the western division balance and the Portland retail.” dealers showing introduced an
The defendant exhibit the production 1945 distribution dealers the that in oil burn- western division. It shows 980 shipped ers to western division dealers. If one- were production for the last third of the three months of shipped 1945 eastern division it dealers, or burners, two-thirds would follow that disposed of to dealers the western 2291burners were by retail sales. If 980 burners out division and it dealers, sold to division would were western disposed appear at the defendant the 548 were retail with the admission as contrasted defendant’s retail. think the that 294 had been at We burners sold jury larger may have an inference that a number drawn department of burners was sold at the Portland retail acknowledged by than has been and that defendant, since such at therefore sale the defendant retail agreement, inwas violation of exclusive plaintiff’s quota would have entitled him to additional burners out of the stock not been, which should have Again but sold at retail. testified: was, daily, I “A said I inwas touch him almost with many times I him talked with about orders position we had on and if he in a hand, fill and if it was safe to take them, more, but I did not every day, day by ask him day is, check with him many to tell him how orders there were. I would say, by way call him and ‘I illustration, have one your you hundred orders, value $40,000.00, do right, think a hundred all or should I down, slow go say, ahead and take them?’ And he would right, I Wes, think it would all be we can deliver Q-o get them. ahead and them.’ “Q And that continued until December, when you they he closing told were ? Christmas general “A I practice think Yes, was fol- way through. all lowed It
“Q wasn’t followed in December, was it? I necessary don’t “A No, think it was to follow say,
it in December, I would no. you
“Q Do happened place recall whether it or not? I “A No, would not be able close, it that
any date.
296 your yon fairly certain in mind Aré “Q that delivery your procedure last followed until
was the in December? fairly that followed “A Am I certain that was delivery in December? until the last you talking time him all the ££Q with Yes, were your delivery in ? until December last that, him late I I with as ££A think talked maybe later.” partner also that Plaintiff’s Scovell testified encouraged plaintiff in De to take orders was more on that defendant had cember. There is also evidence January, part during hand the latter 130 burners turned to the retail 103of which were over 1946,at least plaintiff quota department. If the was entitled to a day, per and if the contract of from five burners two jury 4, 1946, until we think the was not canceled June plaintiff that the was entitled could have conсluded notwithstanding the received, than he to more burners acknowledged plaintiff that he received 198 fact that up to 12 and 8 more in Feb burners December day per September ruary. quota 2 1 A from 1945 1946 entitled about 4 June would have persuasive are if 500 burners. We well aware convincing quota depended that the not evidence severely production; production that curtailed beyond that conditions the control of defendant and larger percentage received a his orders than country; January any that on 7 1946 other dealer in had received 1344 orders burners of defendant only accepted, only had been which February manufactured in burners were and none passing upon But the motion for in March. directed our function is limited constitutional man verdict require citation. known We find date too well
29? some substantial there was evidence *54 quota more than
entitled under his to receive burners in fact him. There therefore some were delivered to by of a breach of contract of failure to evidence reason plaintiff furnish to at least some of the 82 burners for which he had secured orders. upon
As to the second of action cause based by sales made at retail the defendant in violation of the agreement, exclusive the defendant admits 294 jury and, retail as we have said, could have sales, greater, found number was but the fact that by a certain number of retail sales were made the' any defendant does not of itself alone constitute evi plaintiff dence that the entitled all receive right the burners sold at thus retail. Plaintiff’s profits depend, upon recover would not alone the num by improperly ber of burners sold but defendant, upon also the number of such burners to which the quota was entitled under and his which he profit. extending could have at a sold Without this opinion lengths, to unreasonable we cannot review all damage. of the evidence on the issue of and breach We transcript testimony have read and reread the and upon hold that the second cause of action there is some damage. evidence of breach, and therefore is thrown case into confusion worse confounded by position legal theory part shifts of on the plaintiff, of the the failure to disclose his final theory argument appeal until on this instruc- tions which submitted not issues now relied recovery permitted proven by which an extent not any example, evidence: As an we cite the fact that the jury plain- awarded the full amount of the profits profits tiff’s claim lost on burners. The price represented at in each instance recovered less a sum burners, conld have sold which plus the in- representing of the burners the net cost ashed: Plaintiff was stallation cost. asking your complaint, for, You are “Q your price direct cost and the between difference get job, you
you not? for the are were to “A Yes.” anything for not counted in sales- You have
“Q commission? man’s quoting distinguish cost. I I am direct No,
“A operating and direct indirect cost. between considering part I in and instal- in- am That of the cost operation pertains to the direct strument distinctly different from over- furnaces, lation head *55 you yourself, expenses, such as mentioned telephone.” office rent expenses, testifying plaintiff’s overhead
After paid plaintiff including his salesmen, commissions testified: particular you You said on this deal that
“Q but it would not have have earned $114.00, would you that much would have had to because been pay Mr. Sherman? $40.00 pay did Mr. that. Not “A We Sherman what pay, pay. have had to but what did we would we repeat again, pay I did Sherman. that We Mr. gross profits figures are and over-head ex- these penses have had to be deducted would from figures. these you asking are
“Q What is that the Iron then, you your gross profits plus money pay Fireman paid you that it? to Sherman is only money paid not we Yes, Sher- “A expenses that we had in man but other that we that the business pay paying had to and could not avoid on * * * ” group particular of orders. The amount of the verdict establishes plaintiff received on the first cause of action the exact gross profits amount of his on sum 82 burners plus special damages the item of $9,926.78 $358.12 pleaded any complaint. plaintiff in his In could event, only profit. be Furthermore, entitled his net on pleadings most liberal not view expenses profits entitled to recover in addition to as testimony quoted. expenses, claimed him in the No exception prayed with the of the item of were $358.12 complaint for in and none were A further awarded. regrettable at
illustration of confusion the trial was apparent duplication recovery on the two causes Upon cause, action. the first recovered damages gross profits total he have which would had made 82 sales if he received and sold on the burn ers. If had received and sold the 82 burners, supply from he defendant’s which could sold have at retail, would have been reduced 82. con This appears ignored. to have been sideration overlooked or profits theory Plaintiff not recover on the should he to 82 burners he did was entitled which not receive profits theory and then also recover on the that the wrongfully sold defendant the same 82 burners at retail. find
Since we the defendant entitled to a trial, new assignments we consider some of the other will of error. *56 assignment
The second is as follows: ‘‘ requiring appellant pro- court in The erred admitting appellant’s evidence, duce and over objection, showing records the number of sales of by appellant County, oil burners in Multnomah be- October 1945 and 18, 4, 1946, tween lows:” June fol- among others, stated, for the defendant
Counsel admissibility objection following evidence: * “ * * point out that this I further wish to only it insofar as covers is relevant list of sales period Howland an exclusive in which Mr. was testimony no that there was such shows dealer. agreement existence, if it was in and, in existence and it 18, started before October it not have could definitely time Mr. came to an end at the Howland get no burners, he was to more informed was get accepted statement he was to no more he that place March closed his of business in burners, he year, seeking he to recover on burners of that that con- 4, on statement his sold down June given come to end until he was tract did not that stoker formal notification his franchise ’’ ended. received as to sales
The evidence was Octo- from any 1946 without limitation as to 1945 to June ber its use. undisputed, not there is from it is jury evidence
While found notice could have sufficient which given orally February and that termination was it as such. Plaintiff if he treated was asked any other than letter notice termination received April : 1946. He answered our No, “A that was notice the termination possible exception: this At contract, of our with Mayne Read our office, time called at after the Burg, they Mr. conference with he said had decided they going to have a retail were branch in would be out of it and Portland, and we we would it.” receive notice of
Plaintiff testified:
‘‘ you any Q When did receive from information company going the Iron staff Fireman
301 through and oil burners stokers both the to handle branch? their retail ‘‘ February, past 1946, A middle of That was Mr. Read came over. when
ÍÉ * [*] & you first to the “Q did come When conclusion your going you you orders, were to have to cancel any you not receive would more burners your have to cancel orders? would “A After Mr. Read came over and told us that any. going get were not to we
‘‘ February be Q That would some time after 1946?
“A sir.” Yes, complaint It be recalled that the will stated that * * * day February, “on about the 15th notified Defendant Plaintiff that it would not deliver necessary to Plaintiff the oil burners to fill the orders * * that Plaintiff had taken *.” Evidence as to the number of retail sales made defendant could be only prior if relevant the sales were made to the ter plaintiff’s dealership, by mination of which we prior expiration mean, of a reasonable time after notice termination. The court submitted the case jury upon prove instruction that must agency was in effect from 18 October 1945 to conflicting In June 1946. view the evidence as the contract when was terminated, we think the court jury they should have instructed the should con the evidence as to sider number retail sales, only during if sales were made the continuance of contract and the date of termination of the contract jury should have been submitted to the for determina tion. assignment
The fifth asserts that: error give jury refusing “The court erred appellant’s requested Instruction as follows: VII, you ‘In the find that the defendant event should accepted question, *58 in it will orders for the burners your duty the the terms of the then to determine whether beeome required, defendant was under agreement then exist- and under the circumstances ing, plaintiff. supply this to burners to the In such agreement you regard, I instruct that the charge posi- to the defendant with a was insufficient duty plain- tive tiff to such oil burners as furnish might require, being that evidence under delivery alleged agreement the of burners to contingent upon being plaintiff there burners was plan plaintiff’s under allocation available use by among adopted of un- to insure a fair allocation defendant Therefore, burners its various dealers. you by preponderance find a of the evi- less dence that should supply of there was such a burners plan, with such available, accordance allocation your be for as this verdict must the defendant to ”. of action’ cause gave requested the first sentence of
The court give In refused to the balance. view of but instruction plaintiff’s he statement here that does not claim only quota, requirements his fair it but contract, given. appears should have been instruction that the theory court submitted both trial substance, In requirements and the abandoned, contract, now aof jury. theory, quota assignment eighth of error relates to the refusal requested give instructions on court already set forth. we have frauds, which
statute error. reversible refusal was Such eleventh, assignment By the defendant error its asserts that: jury giving the follow-
“The court erred ing instruction: you you
‘I find from the instruct that if evidence through Mayne defendant, Mr. Manager, mutually agreed, District Bead, its Sales verbally assented and consented agreement to terms of an given under which was the ex- right County, clusive to sell at retail Multnomah Oregon, oil burners manufactured defendant, promised defendant and such to furnish with oil burners for sale, that Mr. Bead had authority apparent act, so defendant ratified authority, I that tion to as shall hereafter define ratifica-
you, such an constitutes valid parties, and enforceable between the thereby, pursuant defendant bound to such you agreed upon, terms find to furnish to plaintiff such oil burners and to refrain from mak- any ing person County, sales other in Multnomah *59 Oregon’ ”. exception upon was taken numerous
grounds, among ignored them the that instruction the delivery elements of schedules, accept allocations, by ance of orders the defendant and failure to deliver beyond due to causes the control of the defendant. The instruction illustrates the confusion through which runs plaintiff definitely entire case. The the never asserted theory the on which he now alone relies. As a result the jury trial court was unable to state to express the plaintiff of the terms contract on which relied. expedient
The court reduced to the was instructing of plaintiff given that if the was right the exclusive to promised sell oil burners defendant to furnish such “pursuant burners, defendant would be bound to you agreed upon”. such terms as find was The instructions which are attacked the twelfth by of error are assignments subject thirteenth by as the instruction challenged same criticism was of error. assignment eleventh men- error be other claim of should prejudicial
One of action the court the first cause tioned. Concerning instructed the as jury follows:
“ * * * find aby preponderance If should yon of burners to delivery evidence of the burners there upon being contingent plaintiff under an allocation plan use available plaintiff’s insure a fair allocation of to defendant by adopted then that dealers, various would its among burners they were not compelled to find you require under furnish all the burners that any that unless desired, you have so might plaintiff of the evidence that aby preponderance find should available such supply there burners. verdict your such allocation plan, with accordance the defendant as this cause of be for should as proof plan And the burden action. of burners shortage and the
allocation to you and that must be shown defendant, preponderance evidence, defendant to you.” have defined preponderance I on the theory was drawn quota The instruction it relies, erroneously places but which on the defendant to show plan on of proof burden of burners. The shortage and the allocation as to the terms of the contract of proof burden had the the quota the burden proving agree also had more than burners were ment entitled *60 him. took a The defendant proper exception supplied on the burden of but has made proof, instruction to the in error its brief. ground assignment no the error should not be In of a second the event trial, repeated. present complete plaintiff failure of trial court in such form as to enable the to submit
case jury clean-cut issues to the is shown the fact that exception plaintiff took to one of the instructions already quoted. plaintiff for which we have Counsel said: excepts giving to the
“Plaintiff Court’s of de- requested No. VII, fendant’s fect that unless the instruction to the ef-
jury by preponderance finds, a supply of the available the verdict must be for the defendant. that there evidence, of burners plan, in accordance with such allocation * * * ” plaintiff excepted The instruction to which theory states identical on which now relies. supported exception ground
Plaintiff his on the affirmatively appears “it there were burners they persons available in that were sold whose orders were taken and were cancelled.” It is true that there was evidence to that effect, but it was jury for the to find whether was entitled to plan many. them under the allocation if so how presented support While the contentions of ably motion pre- defendant’s for directed verdict were questions sented, each instance raise serious we determination, have nevertheless concluded that the motion must be denied for reasons which we have set opinion, party forth. In our neither had fair trial presented jury which issues were under produce intelligent circumstances calculаted to re- sult. areWe convinced that the contract was within jury say frauds, statute of that it was for the delivery, acceptance, payment whether the were *61 exclusively alleged referable to the oral contract on which that that relies, issue was not submitted jury requir- to the and that other errors have occurred ing judgment that the be reversed. The cause is there- fore remanded for new trial. In the event of a new judgment trial the defendant will be entitled to for the amount of his counterclaim, unless the amount thereof against equal larger be set off sum found due plaintiff. Rehearing
On Petition for Manley Strayer, Hugh Biggs, George B. L. H. Spencer, and Fraser, Hart, McCulloch, Rockwood S appellant. Davies, all of for Portland, Ralph A. Coan, Marvin Swire, S. W. and anCo & Rosenberg, respondent. all of for Portland, Bailey
Before Chief Justice, and Brand, Lijsk, Justices. Hay, BRAND, J. opinion prejudicial
In our former we found errors Accordingly as stated. we set aside the verdict and judgment granted trial. new The defendant, merely contends however, that it was entitled not judgment. but rather to final trial, a new It has there- rehearing. petition Considering filed a fore question presented important to be a most one, we requested which have been briefs, received and studied. holding upon by
After that the contract relied plaintiff was within the statute of frauds and was un- taken enforceable unless out of the statute such required performance contract as is referable § we 71-104, L. said: A., C.O. “ ** * testimony plaintiff and defendant disagreement as to was in violent acceptances pursuant sales, deliveries, to which payments made, and since the evidence were conflicting pursuant whether the sales to were as to exclusive contract or the dealership, follows that there was nonexclusive it *62 jury question and that fact for to determine a question referable the were deliveries, etc., whether the sales, [*] * ? the oral contract claimed by plaintiff. rehearing presents petition for defendant a
In its namely, holding single “erred in contention, that we question jury of fact for the to de- there was sales and deliveries of oil burners whether the termine respondent referable to the oral contract were by respondent.” the claimed by parties is devoted both attention
Considerable the a few instances defendant to the evidence inquiries concerning company oil burners and received plaintiff. prospective In customers to the referred inquiry persons came from out- instances the several County and the action of defendant Multnomah side any significance. without them is therefore We as to care and the each ease with most have considered upon the trier is that evidence of the can be said might draw an inference either that defendant’s fact with reference or was not done to the ex- action was by plaintiff. practice claimed clusive contract referring inquiries had been followed both be- of thus making alleged contract. and after fore Having reference to the terms of the “A statute: * * * goods shall to sell or sale not be * * * * * * buyer accept enforceable unless the shall * * actually (O. § 71-104) receive L. A., C. question parties essential is whether the action of the acceptance receipt clearly relative to was so re alleged by plaintiff, ferable to the contract take as to it out of the statute of frauds and whether it was for jury question. the court or the to decide the any At the threshold of discussion of the authori- ties, two distinctions must be made; first, between applies applies which rule in law and that which equity; the second, between the rule in actions buyer and the rule in actions the seller, on an oral purchase goods. contract for the or sale of many This court has considered cases in which specific performance sought by been has one in the buyer position or donee or lessee of an oral conveyance contract for the or devise of land, or for leasing period longer year. thereof for a than one § The relevant statute is L. A., O. C. 2-909. That section provides that such oral contracts are void unless there writing satisfying is a note or memorandum statutory requirements. There is not a word in *63 concerning part performance statute suggesting may operation cases such be taken out of the of equity. equity the statute enforced in of Courts developed body judge-made have a of law under which granted, notwithstanding upon relief is the statute, theory equity permit will not the statute of frauds perpetration the instrument for to become of fraud. p. § Jur., Frauds, 49 Am. Statute of 421, 725. Accord ingly, part, performance, may or full as the case re quire, pursuance in if done of the contract and refer showing thereto, able relied agreement, and on defendant’s endorsement or
309 specific per authorize acquiescence, held sufficient is estoppel theory operates on the of rule The formance. Am. Statute
by Jur., 49 statute. to assert the conduct re are The authorities P. 727. §422, Frauds, following Allen, Hunter v. recent cases: in the viewed Dodge v. 936; 148 P. 2d 213, 147 P. 2d 261, 174 Or. Tiggelbeck Russell v. 735; P. 2d Davies, 13, 179 181 Or. by 2d the cases cited 213 P. 156. Of 554, 187 Or. al.,
et rehearing, petition for four brief on in its defendant equity. Le Lord, 302; v. 7 Vee Brown Or. in were suits Reynolds Scriber, P. v. 351; 181 370, 93 Or. Vee, Lev. Larsen, v. 69 387, and Tonseth Or. 48; 69 P. 407,
41 Or. defined, these cases the court In each of P. 1080. part though terms, the test of different somewhat equity. equity employed performance Even in part perform the evidence never held that have we requirements undisputed. Whether the must be ance may by pre be equity shown have been satisfied Losey O’Hair, v. ponderance evidence. Or. 493. P. 2d rights under oral law to enforce at
Actions goods rest on a different the sale contracts provides contracts statute that such foundation. ** and thеn follow the “unless not enforceable are may compliance statutory provisions, take with which distinguished As from the of the statute. the case out equity enforces its own which a court of function of under law, a court of the sales function of rules, statutory having primarily construction, that of act, legislature. presumed intent of view simple an action the seller on case of In the dispute is no as to its specific there contract, where buyer, receipt acceptance proof terms, clearly satisfies the statute bound, one to be who is *64 right price. and the establishes to recover the There nothing acceptance receipt to which and actual of goods except alleged specific the could be referable the Consequently frequently oral contract. the courts have plaintiff may prevail proof held that the of ac- ceptance receipt discussing question and without referability. possession passed If title buyer, plaintiff recovers. Even here, de- however, the requiring cisions construe the statute as action on the part parties. of both
“No act of a seller alone can constitute a deliv- ery taking the out of contract the statute of frauds, receipt acceptance buyer.” without p. § 49 Am. Jur., Statute of 590. Frauds, 272, requirement receipt acceptance “The as to part parties, demands the action on the of both acceptance implies delivery, can and there be no complete delivery acceptance. without No act of positive unequivocal, alone, the seller however acquisition possession can have this Also, effect. buyer without the consent of seller cannot operate the compliance as a with statute, where buyer without the consent of the seller takes goods replevin.” under a 49 Am. Jur., writ p. § 590. Frauds, 273, Statute * * “* unequivocal There be some must act or beyond conduct over and terms mere of the agreement indicating, verbal intent one an on the hand, ownership
to vest the and absolute dominion buyer, and on the other intent to hand, goods of such take the as owner title as * * *” agreement. performance calls for of the p. § Jur., Frauds, 591. 49 Am. Statute of case: As an Illinois stated ' * * “ * requirements In order fulfill the avoid effect, so as its there must statute, delivery goods from the sold, seller to be a *65 buyer, acceptance buyer, with an the the intent on the and an vesting parties part the of both buyer. right possession In to deter in order the buyer seller has accepted has the mine whether or not goods delivered them the and the received to vesting right buyer, intention of the with the necessary possession to consider the him, it is they parties, as did. shown what intention part part mutual, be on the course, the intent must Of buyer, and of of deliver on the seller to the the party buyer аccept Either from the seller. acceptance. may delivery 27 effect a alone not Refining Chicago Co. v. Jerome 244; Metal C. J. Trading App. Meat Ill. 333.” Illinois Co. 218 Co., App. 229 Ill. 311. Co., American Malt and
v. Grain ordinarily Compliance with the rule thus stated is suf- ficient. simple type to, of ease referred there
When, the evidence as.to whether the defendant is conflict buyer accepted goods, question
and received the jury. Meyer, Thompson Co., & Co. v. & one for the W. MacKenzie, v. 21 27 P. 194; 184, 1039;
16 Galvin Or. Or. Mfg.
Richey 99; P. Barrett Robertson, 525, 169 v. 86 Or. 90 A. Becker D’Ambrosio, 930; v. Conn. 96 v. Co. 192, Augusta Cooperage 61 N. Holm, 86, 307; Wis. W. 89 Crowley Ark. Plant, 49, 12; v. 163 259 S. W. v. Co. A. 673; N. H. 118 v.
Marshall, 442, 80 Castle & Swift Houghtaling al., A. Ball Co., 187; Md. v. et 631, 104 132 McKelvy, Am. Dec. Waite v. 71 Minn. 331; 59 84, 19Mo. Ry. & N. 727; N. W. Charlotte Harbor Co. v.
167, 73 213; 48 Burwell, 217, Fla. S. Klein-Messner Co. v. 57 Co., N. 174; 216 Y. S. Hinchman v. & Dress Fair Waist Marquette 31 L. Ed. Hull 38, 337; 124 U. v. Lincoln, S. Mfg. 260; Lauer v. Richmond 208Fed. Co., Co
Cement
operative
Inst.,
305,
8 Utah
Newman v. Multnomah Fuel 93 247, Or. by P. an 1, was action the seller for breach of contract. upon an The relied oral contract seller for 2500 cords proof acceptance receipt of and on and wood of 150 buyer contract. The cords under oral asserted a acceptance for a amount and that contract lesser receipt of had and wood no connection with the oral brought. jury on which suit was The found plaintiff. only question The for the raised was overruling of a motion for nonsuit. Held that the question jury. a issues raised of fact for the After stat- ing that no errors law were committed and that finding jury therefore the of the determined the exist- contract, ence the oral the court said: “By undisputed facts verdict the de- after accept did and receive at fendant least 150 cords of ‘accept on the oral contract and it did wood and part personal property,’ some receive for ception.” such and reason the defendant such comes within the ex-
(Italics ours.) by obvious that the court this statement intended It is say jury that if the found that the contract was by if vitiated the seller and no error of law they on that then could find that the issue, the verdict receipt acceptance and was referable to the contract found. Naftzger P. 233,
In v. 94 Or. Henneman, buyer an on oral contract for the seller sued priсe general a and of onions. The denial answer acceptance plea receipt had been no and there delivery goods. goods of the The actual of the was, undisputed, as in the case at bar. testi however, mony sharp conflict as to the terms of the oral plain contract. If the contract was as claimed clearly, acceptance receipt, then, there was tiff, The court said that the verdict otherwise not. “settles every plaintiff”, contradicted fact favor properly if added, “therefore, the court’s instruction the law” the court would stated assume the truth of plaintiff. the evidence favorable to the The defendant requested had an instruction to the effect that:
“ * * * delivery acceptance to constitute meaning law, within the of the there must be some plainly part purchaser recognizing on the of the act property the existence of the contract that the has be received accordance thereof. been There must delivery goods seller with the in the *67 right vesting possession the intention buyer, receiving and there must be actual and buyer acceptance taking the with the intention of possession as owner.” quoted portion requested that the of the held
It was correctly stated the law but that instruction other given required in instructions reversal, errors and authority is trial was ordered. The case a new for 314 party (here proposition that the be bound the plainly recognizing
buyer) must do some act the con- property accepted and and that has been received tract therewith. in accordance terms of contract acceptance receipt and are for the issue of and disputed. only jury is If, if, when evidence but jury finding law, is no error of of the on there disputed may issues the nature as to bearing upon question a material the further as have acceptance receipt and were referable to to whether as the contract found. Corp.
In v. Brister Koester Lumber American & Corp., 50 A. rule 33, Pa. 2d was 672, Lumber delivery pursuant must be made announced that accepted as and it such, asserted contract said:
“ * * * acceptance delivery goods A under separate independent alleged parol a of an contract, part performance agreement, not such will take the latter of the statute:” out judg- was rendered but The verdict n. o. v. and affirmed. Under the ment was entered properly particular the evidence facts it was held that legally support finding insufficient offered acceptance receipt pursuant oral con- if there had been substantial tract. It seems clear that jury ques- ways, both there would have been evidence v. Fox effect see Libman Pioneer tion. To the same Augusta Scrap 185 N. Co., 551; Iron 175 Wis. W. 485, Dowdy, Cooperage Ark. 1. 232 S. W. 318, Co. v.
Especial is made to the case of refеrence Kansas Corp. Dreyfus Bros., Inc., 325, v. 170 Okla. Mills Flour questions involved in the case P. 2d where thorough consideration. received able We at bar
315
buyer,
by
against
at
seller
that in actions
law
conclude
testimony
conflict
there is a
as to
terms
where
jury
it
for the
to determine what
contract,
of an oral
is
delivery, receipt
and
and
were,
the terms
whether
ac
pursuant
upon.
ceptance were
to the contract sued
The
following
support
additional authorities
this conclu
L.
Paris,
sion:
v.
96 U. S.
Ed.
821;
Garfield
Sugar Refining
Eiseman,
Co. v.
purchase
goods
claiming
and is
that it has been
Upon superficial
taken
of the statute of frauds.
out
might say
statute,
consideration of the
one
that to take
only
required
the case out of the
statute,
acts
are
performed by
buyer,
those to be
tbe
for tbe statute in
only
acceptance
receipt
terms
refers to
title,
actual
possession
payment
money,
part
of earnest
or of
*69
purchase price,
performed
of tbe
all of which are acts
by
buyer,
by
buyer
if
but
the
acts,
the
are
alone,
suf
ficient
an oral
to take
contract
of
out
the statute of
nullity
frauds,
the statute becomes a
in all
in
cases
alleged buyer
any
plaintiff.
theory
which the
is
On
such
buyer
by
the
could lift himself out of the
his
statute
straps,
claiming
boot
an
first
oral contract and then
claiming that his conduct alone made the contract en
always
forceable. The statute of
has
frauds
been
applicable
brought by buyer against
deemed
to cases
Clearly,
part performance
seller.
mere
aof
contract,
any acceptance
receipt
and actual
does
take
without
not
out of the statute of frauds. See Michelin Tire
case
Company
v. Williams, 125
P.
689,
56,
Or.
Calif.
of
Cassidy
Corporation,
and
v.
Cheese
Kraft-Phenix
Acceрtance
receipt
Mich.
In in eases which sues the upon important oral it is contract, seller many notice that authorities state that acts must be particular pursuance done of the contract relied any without reference to whether the seller or the buyer plaintiff. is the receipt acceptance goods of the
“The part parol to render the contract thereof relied on pursuance par- must done in enforceable be by sought to establish ticular contract which it is acceptance. receipt showing and receipt A such goods acceptance another contract under will goods if sufficient, not be but tbe are fact de- livered under tbe immaterial no contract it is express reference is made to the contract at the acceptance buyer time. To constitute an must property prove so deal with ac- that he knowledges be some contract; the existence of the there must part plainly recognizing on his act property has existence buyer’s been received in accordance therewith. The goods by legal seizure of force color or under process is not sufficient.” S., Frauds, 37 C. J. Stat- p. § ute 636. of, 150, delivery, receipt or not matters
Whether acceptance are matters for the determination of the jury, general is also stated terms authorities, regardless may plaintiff. general of who be adopt rule which we is stated Williston as follows: jury “It in a determine doubtful *70 acceptance receipt. case whether there has been and justifying jury If, there is no evidence however, the finding way, may prop- more than one the court erly question.” decide the 1 Williston on Sales, § 96. Ed., Rev. Chip
In v. Krause Bell Co., Potato 149 388, Or.
39 P. 2d this court said: 363, “* * * Generally involving in actions the statute questions frauds,
of of law are for the determina questions tion of and court, the of fact or of mixed jury and are for law under fact the determination of the proper from instructions the court: 27 C. J. §490.”
389, Sheedy, plain In Brown v. 90 P. 613, Or. 74, 175 alleging bought that he had tiff, cattle from the de brought replevin an action in fendant, to recover them.
The defendant denied to sell, and relied claiming of frauds, statute that there had 318 acceptance receipt any part prop- no or
been of tbe erty. The court held a matter of law that there delivery receipt. nowas evidence of or The court said: dispute “It is is true when there a as to jury the but it must be a facts as solved verdict of Contracts, 2, said Elliott on Sec- Volume tion 1340: “ in relation a contract ‘When facts of in alleged sale not to be the statute are within dispute, belongs to the their it court determine legal effect.’ сontroversy “The crux for court delivery was a to determine whether there cattle by THERE CAN BE DELIV- defendant, WITHOUT ERY NEITHER RECEIPT NOR whether the ACCEPTANCE, any part accepted property and received the thereof.” 914, 40 66 P. Covacevich, also Milos v. Or. 239,
See Remington A Inc., 10, N. L. Rand, v. J. Buchanan 2d 832. Crystal Holliday, 714, v. 106 Miss. S.
In Ice Co. pur- for the to a contract testified ice of 15 least cars of chase from defendant at making capacity. denied the con- The defendant tons only sold and delivered ice that he tract plaintiff. separate order each accordance with court said: “* ** testimony, Appellee’s if discloses true, performed, partly complete in which contract, appellant agreed purchase, sell, the he to. ice therein referred *71 “Appellee ice deliv- the 30 tons testified part performance him delivered
ered were is the contract and if that true contract, of this question for the truth was valid, thereof 319 jury. Mfg. determination of the Stonewall v.Co. 63 Miss.
Peek, 342.” only The case was but reversed, because of error damages. instructions as to the measure of In Minton v. McDaniel, Ark. S. W. 2d alleged buyer 617, the sued the seller for failure to deliver 24 bales of cotton. The defendant denied the pleaded contract and the statute of frauds. The defendant admitted that he sold to the any but denied bales, that he delivered of it. There was plaintiff. a verdict for the The court held “ * * * jury evidence that: it to determine partial delivery whether a of the cotton had been holding question made.” While that the was for the jury, proof the court also said that must be clear and unequivocal.
The case Miller Bros. Hat Inc. v. D.A. Co., Co., Smith Sons N. directly 237 Y. N. 570, 143 E. 747,is point application in its to the case at bar. The action buyer for breach of an oral complaint alleged deliver merchandise. The that agreed defendant seller had to deliver 880 dozen straw styles. hats of different It was that one dozen style paid hats of each was delivered and was for. up
answer denied oral contract and set the statute of frauds. The court said: prima
“The made out facie case of goods. breach of contract for the sale On the complaint facts, should not have been dismissed, jury permitted but the pass should have been question delivery on samples whether the principal recog- was referable to the order and in performance part nition and thereof.” *72 Another to the at bar case similar one is Mason- F. on-Kier v. 2d 735. Walsh-Atkins Co. Stubblefield, buyer upon The sued the seller an purchase scrap oral all on contract the of steel plus hand future accumulations The defend thereof. only ant contended that the contract for the sale was buyer existing scrap. made to the Deliveries were existing scrap accumulations. The of some upon The court said: seller relied the statute of frauds. “ * * * perform- Appellant part concedes that operation a contract from the ance will remove part perform- statute, of this but contends that the necessarily referable ance relied on not here was pleaded the words, the other that to —in performance consistent with its own shown was as appellee’s. agreement How- version of as with the accumulating subsequent scrap time of ever, bins, the as material then the as well contract, appellee. was delivered to The testified only Meyers, appellant’s on hand at the time of to to related witness, engagement. scrap think We clearly part performance referable was sale of future accumulations. contract for the detail it is “ * * * ÍÍ # # [*] enough Without say discussing that there testimony sufficient carry jury.” phase on this the ease to 88, 139 Okla. In & Bassett v. Weaver, Whiteneck buyer seller for breach of 281 P. sued purchase of 100 of cotton. contract for the bales oral plaintiff 100 it sold the The admitted that defendant The court bales of cotton. said: question or not there fact as to whether “The part delivery acceptance of a had been by appropriate jury cotton was submitted to excepted not to. We think which were
instructions, finding ample support a evidence there question, favor on this the verdict ground will therefore not disturbed be is not sustained the evidence.” such verdict undisputed evidence states receipts accept were deliveries, discloses there ances of oil either under an dealer burners, exclusive separate arising ship contract, under contracts *73 from support not individual orders. The record does this original opin statement. The evidence reviewed in the recognized ion that shows the defendant the existence implied dealership of an under numer which ous it sales were but denies that an exclusive made, was gave plaintiff days one. The defendant the notice implied dealership. termination the so-called If agreement, there no such was there have would been giving no reason for notice. The seeks distinguish Scrap v. Libmani Fox Pioneer Iron Co., Corp. Dreyfus supra, Kansas Flour Mills Bros., v.
because those there cases “existed a contract addi sought tional to the oral contract to be enforced.” involving Plaintiff states that in cases such state of necessarily jury question facts, it a becomes delivery, receipt accept which of the contracts the place. agree ance took We that this is but it true, equally disclosing would be true if there was evidence separate that each sale was based contract. only upon
In all cases, course, sues alleged complaint. ques in his And in all, pursuant delivery, tion whether etc. was to arrangement. contract or to some different contract or delivery pursuant If the to a was different contract, parties, the existence of which was admitted both or one a different asserted or it defendant, if pursuant separate to a series of contracts for legal separate purchases, would be situation delivery, etc. fail because would same. The pursuant on suit was not to the contract which brought. petition rehearing the defendant
In its on brief solely delivery must be referable states that following: and then asserts contract, “ * * * equally reason If there other are explanations of actions with inconsistent able such payments should be intent deliveries contract, the oral then under familiar referable to Spain legal principles announced in such cases as jury v. R. & should not N., O. 78 Or. W. speculate as which was the true be allowed intention.” argument “speculative” is not
Defendant’s conflicting point. evidence is The fact does that the decision raise an inference must be not based speculation. fact that mere there on is substantial controversy, involving, both sides of evidence on credibility, presents among typical issue others, the *74 jury. question a for establish the
The authorities rules that when party enforce an oral contract for the a seeks sale preponderance goods a must show he of the delivery, acceptance, was that there evidence actual goods, receipt part something or of some given bargain part in earnest was to bind or in relying upon party payment. The the oral party, buyer other further show whether must delivery acceptance or in the in the seller, or receiving making receipt, part payment or may money, be, as the case acted with or earnest refer recognition existence ence to and of the con- brought. tract on which action The evidence must charged, party show that the to be so dealt with the property prove acknowledged as to that he the exist alleged ence of the contract and that what done delivery, acceptance, receipt, relative was done etc., solely performance. a view to its v. with Galvin Mac Sheedy, supra. and Brown Kenzie v. both When the tending delivery, acceptance, evidence, etc., to show opposed by to the contract, referable substantial contradictory particularly evidence, when the con testimony agree flict of relates also the terms of the jury. the case is one for the Plaintiff ment, contends should have we decided as matter law that delivery recognition ivas made con opposite tract. The defendant contends for the deci reject sion as matter of law. We both contentions in holding vieiv of the authorities that the issue is -one jury upon for the a new trial. It must be added that petition rehearing, filed no for and there standing urge allege fore has no error. petition rehearing
Defendant’s is denied.