Longfellow v. Huffman, 49 Or. 486

Longfellow v. Huffman

49 Or. 486 | Or. | 1907

*490Opinion by

Mr. Chief Justice Bean.

1. The plaintiff contends that the stipulation in the contract between him and defendants that the purchase price of the lambs should, at the time of delivery, be credited on the promissory note mentioned in such contract, was an independent and subsidiary covenant, which could be broken by him without impairing his right to recover damages on a refusal of the defendants to deliver the lambs as agreed upon. But, as we construe the contract, the delivery of the lambs by the defendants, and the crediting of the price thereof on the promissory note, were made concurrent acts. The defendants agreed they would deliver the lambs to plaintiff for a stipulated price, at a certain time and place, and plaintiff agreed, in consideration thereof, that at the time of delivery he would credit the purchase price on the promissory note. The two acts were to take place concurrently, and the performance of one was dependent upon the performance of the other. The defendants were not required to deliver the lambs unless the credit was made and plaintiff was not obliged to make the credit until the delivery. Neither party could put the other in default without performance or an offer to°perform on his part. It is therefore incumbent upon plaintiff, before he can recover damages for a breach of the contract by the defendants, to allege and prove performance or readiness and willingness to perform or some legal excuse for nonperformance: 9 Cyc. 645; Lewis v. Graft, 39 Or. 305 (64 Pac. 809); Gatlin v. Jones, 48 Or. 158 (85 Pac. 515).

By his complaint he places his ease on the ground that he was ready, able and willing to perform his part of the contract by crediting the purchase price of the lambs on the note mentioned in the agreement at the time and place of delivery. Upon this theory, he must recover in this' action, if at all. His complaint cannot be aided in this regard by the averments of the reply. Now, it appears from plaintiff’s testimony that he was not able at the time defendants refused to deliver the lambs to comply with his part of the contract. The note was not at that time in his possession or under his control. He had previously as*491signed and transferred it to, another, and it was out of his power to make the proper credit. That the transfer was intended as collateral security does not change the result. The fact still remains that he did not have the note in his possession, and could not make the proper credit thereon. The defendants were not obliged to make the delivery and rely upon a promise of plaintiff to see that the proper credit was subsequently made. They had a right to insist that it be made at the “time of delivery,” and, if plaintiff was unable to make it at that time, they were not bound to make delivery. Therefore the motion for nonsuit was properly allowed.

2. The plaintiff applied to the court, during the progress of the trial, for leave to amend his complaint by pleading a repudiation of the contract by defendants prior to the time for delivery. The allowance of this motion was within the discretion of the trial court, and its ruling cannot be disturbed here unless there was a manifest abuse of discretion, whoch does not appear. But, if the complaint had been amended as desired, it would not have stated a sufficient excuse for plaintiff’s inability to perform his part of the contract.

3. A declaration by one party to a contract, made prior to the time fixed for performance, that he will not comply with such contract, if not withdrawn, may dispense with or excuse an offer to perform by the other party before bringing his action: 1 Beach, Modern Law Contracts, §411; Howard v. Daly, 61 N. Y. 362 (19 Am. Bep. 285); Bissell v. Balcom, 39 N. Y. 275. But it does not ordinarily excuse ability to perform.

4. “It is well settled,” says the Supreme Court of Illinois, “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: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or 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 in the contract for performance sue and recover, under the contract; or he may *492treat 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. In the latter case the contract would be continued in force for that purpose. Where, however, the injured party elects to keep the contract in force for the purpose of recovering future profits, treating the contract as repudiated by the other party, in order to such recovery, the plaintiff must allege and prove performance upon his part, or a legal excuse for nonperformance”: Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 80 (38 N. E. 777: 30 L. R. A. 33). If it is true, as argued by plaintiff in his brief, but denied in his pleadings, that defendants voluntarily paid and discharged the promissory note before the time for performance had arrived, and thus by their own act put it out of the power of plaintiff to perform his part of the contract, that fact should have been averred in the complaint as an excuse for nonperformance, and is unavailing to the plaintiff until so pleaded.

Upon this record there is no error in allowing and granting the motion for a nonsuit. The judgment is therefore affirmed.

Affirmed.

Mr. Justice Eakin, having presided at the trial below, took no part in this decision.