97 P. 718 | Or. | 1910
Lead Opinion
On Petition for Restraining Order Pending Appeal.
197 Pac. 718.]
delivered the opinion of the court.
“The Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts.”
And it can have no jurisdiction beyond what is granted by the constitution. Therefore it has no original jurisdiction, and cannot issue any writ in an original proceeding, but, as incident to its appellate jurisdiction, it has such inherent powers as are necessary to enable it effectually to exercise such jurisdiction. Elliott, App. Proc. § 20 says:
“It is not to be understood that an express statutory provision is required to confer upon an appellate tribunal authority to exercise an auxiliary authority in aid of its appellate power, although such auxiliary authority may be in its nature original, for all courts of the rank of appellate courts proper have such general powers as are necessary to enable them to effectually exercise the jurisdiction conferred upon them.”
The grant of appellate jurisdiction, whether made by the constitution or by statute, necessarily vests in such court all powers of an incidental nature required to make the granted jurisdiction effective. Ib. § 22. At section 512 the same author says that appellate tribunals are invested with power to issue injunctions when necessary to enable them fully and effectually to exercise appellate jurisdiction; and this authority is recognized in many of the states under constitutional limitations similar to those of this State. The Wisconsin Constitution (Article VII, Section 3) provides: “The Supreme Court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only” — and, further, that it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same. In Cooper v. City, 34 Wis. 181, in discussing the power
“The statute makes no provision as to the procedure in obtaining a restraining order or injunction on appeal, but the practice is substantially that prescribed for the trial court.”
Mr. Justice JOHNSON in Wagner v. Railway Co., 38 Ohio St. 40, a case similar to this, speaking of the writ, quotes Section 5572 of the Ohio Code, which contains similar provisions to Section 420, B. & C. Comp., and says: “This would authorize a temporary order pend
The question then arises: Is this a proper case for the issuance of such a writ? It cannot be allowed simply for the protection of plaintiffs from damage or hardship. That is the province of a court of original jurisdiction. It is said in Doughty v. Railroad Co., 7 N. J. Eq. 629, 636 (51 Am. Dec. 267), that the issuance of such a writ in aid of appellate jurisdiction “is manifestly a very high and delicate exercise of power — one which should by no means be exercised as a matter of course, but only upon the most imminent necessity.” This court has jurisdiction to issue this writ only in aid of or to protect its appellate jurisdiction, and for no other purpose. But the threatened enforcement by execution of the judgment, which is the subject of this suit, would operate to satisfy the judgment, and thus nullify any decree this court might render relating thereto, or at least render such a decree difficult of enforcement. As said in Chegary v. Scofield, 5 N. J. Eq. 525, 531: “We can do nothing but review the particular order or decree appealed from, except that, * * where the Chancellor, by his decree, has loosened a man’s hands, we may, by a preliminary order, tie them up again, until we can hear the appeal and determine whether he ought to be let loose or not.”
Therefore we are of the opinion that this is a proper case for issuance of the writ to preserve the subject of litigation pending the hearing on the merits; and a restraining order will be allowed, as prayed for in the application, upon plaintiffs filing an undertaking in this court, as provided by Section 418, B. & C. Comp., in the sum of $500. Petition Allowed.
Opinion on the Merits
On the Merits.
[107 Pac. 460.]
delivered the opinion of the court.
“You own the hops. We do not, nor will we receive them.”
And, although the Krebs Company was at the same time contending for its money and that plaintiffs should accept the hops, it was not bound to sell the crop for the security and protection of purchasers, who were refusing to recognize that they had any interest therein. Under these circumstances, it was for the Krebs Company to
The decree of the court below is affirmed, and the restraining order here issued dissolved.
Affirmed; Restraining Order Dissolved.
Rehearing
On Petition for Rehearing.
[112 Pac. 1.]
delivered the opinion of the court.
Dissenting Opinion
dissenting.
“It is well established by the decisions of this court that a vendor of personal property, when the vendee has declined to take the property and pay for it, ordinarily has the choice of any of three methods to indemnify himself against loss: (1) He may store or retain the property for the vendee and sue him for the entire purchase price. (2) He may sell the property and recover the difference between the contract price and the price obtained upon a resale. Or (3) he may keep the property as his own, and recover the difference between the market value at the time and place of delivery and the contract price.”
Had defendant, after awaiting the actual sale of the hops (which sale, under the circumstances, was made within a reasonable time), brought an action for damages against plaintiffs, then plaintiffs might have availed themselves of the defense that the market price on the date of contemplated delivery was adequate to offset the claim, and thereby have constituted a defense thereto, but that is not the situation here. Should we assume, as contended by plaintiffs, that the property was not retained by defendant for plaintiffs, then, as indicated in the action in which this judgment was procured, the remedy should be an action for damages. Under all the adjudications between the parties, this court has held the contract severable and plaintiffs liable in a separate action on each breach thereof. Suppose that defendant had followed the proper course by bringing an action for damages only, and had obtained a judgment, it would hardly be argued that the judgment thus procured must be canceled on the grounds and in the manner asserted in this proceeding. Had the question been raised at the trial in the first instance, defendant would have been required to sue for damages, and a judgment would have been procured therefor, but, this feature being waived,
Again, there is nothing in the pleadings to indicate that plaintiffs were either ready or willing to receive the hops at the date fixed by the contract for their delivery, or that, in lieu thereof, they would have accepted the money received therefor had the hops been sold. The injury complained of is a result of plaintiffs’ default. Then, in the absence of fraud or wrongful intent, shall defendant be held bound to cancel a judgment legally acquired by reason of the fact that on October 15th it did not choose to become the agent of plaintiffs, and sell the property which plaintiffs at all times insisted did not belong to them? To recognize the rule contended for by plaintiffs would be to permit the party most in fault to take advantage of his own mistake, to the prejudice of the one least in fault, and whose fault, if any, consisted in an error of judgment as to the best or most profitable time to dispose of the property. Had defendant sold the hops on the 15th day of October at the then market price of 14 cents per pound, and had hops of that class on the date of the final determination of the suit been worth 50 cents per pound, plaintiffs would have been in equally as good standing in a court of equity to demand an accounting against defendant, as now to insist that, after placing defendant where it could not deliver to plaintiffs, it must be held bound to cancel a judgment, the validity of which is unquestioned, merely because plaintiffs might have found a purchaser at the market price on October 15th. It will thus be seen that defendant as a result of plaintiffs’ course was at best placed in a perplexing position, and, in the absence of
The authorities relied upon by plaintiffs are cases where the complainants were prevented by fraud or accident, unmixed with any fraud or negligence in themselves or their agents from procuring the relief desired, under which circumstances courts of equity are authorized to enjoin an adverse party from enforcing a judgment. But these conditions are wanting here, and the cases relied on are accordingly not in point. The complaint recites that defendant neither delivered the hops nor accounted for the proceeds. As shown, the question of delivery is out of the case. If plaintiffs can recover at all, it must be on the basis of an accounting for the proceeds received from the sale, which, as before indicated, on account of the sale being at a loss, would avail plaintiffs nothing. At the oral argument it was admitted and we think properly, that plaintiffs under the showing made are not entitled to recover anything on that basis, and “have no enforceable claim against the defendant”; it being urged that, on account of the market price of the hops equalling the contract price on the date of intended delivery, the judgment should in equity be canceled. But we are not conscious of any system of reasoning by which it can be held that a valid and subsisting judgment may in equity be canceled by a nonenforceable claim. There is no doubt as to the soundness of the contention that defendant had the right to hold the hops until the agreed date of delivery, and then
Considered from any standpoint, defendant is least in fault, and the misfortune, if any, must fall to the lot of those to whose acts the conditions complained of are directly traceable — the plaintiffs. Under the most favorable view possible' to plaintiffs, more cannot be said than that as between them and defendant, their equities are equal, and, being so, the law must prevail. The law gives to defendant the judgment, and under the issues and showing made, a court of equity is powerless to annul it.
Dissenting Opinion
delivered the following dissenting opinion.
I examined this case upon the record and briefs at the time the opinion was written and fully concurred therein, but, upon further examination of the case, I have determined that the conclusion of the opinion is wrong.
It appears that the plaintiffs sought to cancel the contract before any payment by them was made thereon. Defendant, however, refused to acquiesce therein or permit plaintiffs to rescind. For the purpose of enforcing
In Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, (38 N. E. 773: 30 L. E. A. 33), the court in discussing the rights of the parties in case of a breach by one say:
*375 “It is well settled that where one party repudiates the contract, and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: (1) He may treat the contract as rescinded, and recover upon quantum meruit, so far as he has performed; or (2) he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified for performance sue and recover under the contract; or (3) he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.”
This defendant has elected to rely upon the second remedy above mentioned, to keep the contract alive for the benefit of both parties, and at the time for the delivery of the hops it must have tendered them. In Kadish v. Young, 108 Ill. 170 (43 Am. Rep. 548), a contract was made for the future delivery of grain, and the next day the purchasers gave notice that they would not be bound by the contract, and the question was whether such notice created a breach of the contract, or whether, notwithstanding the notice, the seller had the legal right to wait until the day for delivery under the contract and then resell and charge the purchaser with the difference, and it was held that the seller was not bound to act upon the notice, but was entitled on the day for delivery fixed by the contract to tender, resell, and charge the purchaser with the difference. It is said in Johnstone v. Milling, L. R. 16 Q. B. Div. 460, that the real operation of a renunciation of the contract gives the other party the right of electing, either to treat the declaration as brutum fulmen and holding fast to the contract, to wait till the time for its performance has arrived, or to act upon it and treat it as a final termination of the contract. In the latter case he may recover upon the breach at once. In Frost v. Knight, L. R. 7
In this case defendant was required either to act upon the renunciation by plaintiffs as final and recover upon it as a breach, or, as it attempted to do, ignore it and keep the contract alive for the benefit of both parties by fulfilling the contract on its part; but it failed to perfect this remedy, not having tendered the hops on the day for delivery, and thereafter having sold them at plaintiffs’ risk. Defendant could not hold the hops more than a reasonable time beyond the date for delivery before selling them. If it held them, awaiting a rise in price, it did so at its own risk, and not that of the plaintiffs. Sutherland, Damages (3 ed.) § 647, says, that on the failure of the vendee to receive the property the measure of the vendor’s damage is the difference between the contract price and the market value at the time and place of the breach, and that this market value may be ascertained and fixed by a resale within a reasonable time, which means the earliest practicable period after the time for delivery. And, if there is a market value for the property, he cannot keep it for a rise in price at the vendee’s risk. Sutherland, Damages (3 ed.) § 570; Jochams v. Ong. 45 La. Ann. 1289 (14 South. 247) ; Gehl v. Milwaukee Produce Company, 116 Wis. 263 (92 N. W. 26).
