188 P. 973 | Or. | 1920
E. B. Hill, a witness for the defendant, was permitted by the court to testify, among other things, that he bought the 15 tons of potatoes with his ovjn money, and as to where he.
The court, among other instructions, gave the jury the following:
“Plaintiff’s own testimony — that is, the testimony of the plaintiff’s witnesses — is to the effect that the signature was made by E. B. Hill. The contract, being of the character that it is, would require the assent of both parties thereto, expressed in writing and signed by both of the parties.
“You have heard the evidence in the case, and it is for you to determine whether or not the contract in question was signed by both parties at the time it is alleged it was entered into by Mr. J. B. Hill through his agent, Mr. E. B. Hill and Mr. Coffin, and this becomes one of the material questions for*317 you to determine in the course of settlement of the issues herein presented.”
It is claimed by the plaintiff that the court thereby told the jury that plaintiff could not recover unless th.e contract was signed by Coffin at the very time it was signed by E. B. Hill.
It is not necessary to pass upon the question of whether or not the contract had to be signed by Coffin at the very time that E. B. Hill attached his father’s name, or at the time when the carbon copy (which does not appear to have been signed by Coffin at all) was given to young Hill, in order to make a valid contract. Whether or not the court would have been justified in giving such an instruction, it did not in fact so tell the jury. WTiat the court did say to the jury was “that this becomes one of the material questions for you to determine in the course of settlement of the issues herein presented.”
There was a direct conflict in the testimony as to whether or not the contract was signed by Coffin at that time. There is no question but what it was material in the case, whether it was signed at that time or not, even if a signature by Coffin at that time was not absolutely and necessarily essential to a valid contract; therefore the instruction given by the court was not error in any view of the law.
“In this case any statement or declaration of authority made by the defendant’s son at the time of the original transaction, is not evidence of agency which is binding upon the defendant.”
And the giving of this instruction is- still another ground of error asserted by the plaintiff.
The instruction, however, was the simple declaration of the elementary rule that you • cannot prove
This doctrine is so well settled, and so elementary, and has been so often announced by this court, that there is little room for question as to the correctness of the instruction: Bridenstine v. Gerlinger Motor Car Co., 86 Or. 411, 423 (168 Pac. 73, 922), and authorities cited.
The most serious question in the case, as we view it, is in relation to the giving by the court of the following series of instructions:
“If you should find from the evidence that during such period of time following the execution of this contract as you find reasonable for performance of it, the purchaser was not ready, able and willing to receive the potatoes and pay the contract price, the plaintiff could not recover in this action, irrespective of any default upon the part of the defendant. And by referring to the purchaser in this connection, gentlemen of the jury, I desire to be understood as referring to the holder of the contract,' if there was an assignment of the contract by Mr. Coffin to Mr. Hurst. Reference to purchaser includes reference to Hurst. As assignee he would then be deemed the purchaser within the assignment provision. F. H. Coffin, mentioned in the complaint should be deemed the purchaser at all times until the alleged assignment to the plaintiff.
“If a reasonable time for performance had expired prior to the time of this alleged assignment, and if during that time the said F. H. Coffin was not financially able to pay for the potatoes had delivery been tendered, or was unwilling or not ready to accept the potatoes during that period of time, he was in default, and neither he nor the plaintiff could maintain this action for the breach thereof.^
“Unless, therefore, you find that the said F. H. Coffin was, during the period of performance and up to the time of the alleged assignment, ready, able*319 and willing to accept delivery of said potatoes and pay for the same, you should find for the defendant.”
There is a question, however, as to whether a party can put himself in a position to question a series of instructions, or a long instruction like this, a part of which is incorrect and other portions ambiguous, by a blanket exception to the whole charge or series of charges: Murray v. Murray, 6 Or. 17, 23; Kearney v. Snodgrass, 12 Or. 311, 317 (7 Pac. 309); Conklin v. La Dow, 33 Or. 354 (54 Pac. 218).
Part of this instruction was unquestionably favorable to the defendant, notably that portion reading as follows:
“I desire to be understood as referring to the holder of the contract, if there was an assignment of the contract by Mr. Coffin to Mr. Hurst. Reference to purchaser includes reference to Hurst. As assignee he would then be deemed the purchaser within the assignment provision. F. H. Coffin men*320 tioned in the complaint should be deemed the purchaser at all times until the alleged assignment to the plaintiff.”
“If no time is fixed for delivery the buyer must make a demand”: 35 Cyc. 165.
“Neither party could put the other in default, without performance or an offer to pei’form upon his part”: Longfellow v. Huffman, 49 Or. 486 (90 Pac. 907).
There was no evidence whatever of any demand by Coffin prior to the assignment to Hurst, and indeed there was no evidence of a demand by anyone until March, 1917.
Under this state of facts, if a reasonable time for the performance of the contract had expired, at the time of the assignment by Coffin to Hurst, the contract had lapsed and the plaintiff would have had no right to recover, and the court might safely have instructed the jury that, if a reasonable time for the performance of the contract, and for a demand for performance, had lapsed at the time of such transfer (there being no evidence of a demand prior to that time), then the plaintiff could not recover.
We are of the opinion, therefore, that there was no reversible error at the trial and that the judgment should be affirmed.
If potatoes had gone down to 50 cents a hundred between October and March, instead of going up to $3.50, it would not seem reasonable that the defendant, without offering to deliver from October until March, should then have made up a car and demanded that the plaintiff take them and pay $1.25 a hundred. Neither does it seem reasonable that the plaintiff should lie by for three or four or five months, without making any demand for performance, and then come in and ask that the defendant should be compelled to deliver, when potatoes had gone up to three times their value at the time of the making of the contract.
In Hume v. Mullins, 18 Ky. Law Rep. 108 (35 S. W. 551), the Supreme Court of Kentucky held that a contract for the sale of whisky in bond, which was in terms very much like this one, had lapsed as a matter of law, where the buyer made no demand
The court below submitted the question to the jury as a question of fact, and we think on the whole the rulings of the court were quite as favorable to the plaintiff as he could ask.
Affirmed. Rehearing Denied.