Livesley v. Heise

76 P. 952 | Or. | 1904

Mr. Justice Wolverton,

after stating the facts in the foregoing terms, delivered the opinion of the court.

1. The contract or agreement forming the basis of this suit is of similar character to the one sued on in the case of Livesley v. Johnston (justdecided), 45 Or. 30 (76 Pac. 946). There is one important difference, however, which relates to the acceptance of the hops. If of lesser quality than is contracted for, Livesley & Co. have not here-the option to purchase any amount. Another particular may be noted. There was here no consideration paid for the execution of the contract, as appears from the Johnston contract, and as alleged in the complaint in that case. Notwithstanding these differences, however, the same considerations of construction as to the binding effect of the contract upon the parties will apply here as in the Johnston Case, and it must-be held to be valid and obligatory.

2. In the present case, in addition to the idea of a joint venture, as stated in the opinion in the Johnston Case, there is clear ground for equitable intervention to require specific performance to deliver the hops, which consists in the alleged fraudulent collusion of the parties defendant, entered into with a view on the part of A. Heise to avoid his obligations to plaintiffs under the contract.

The complaint being otherwise sufficient, the decree of the trial court will be reversed, the demurrer overruled, and the cause remanded for such further proceedings as may seem proper. Reversed.