104 P. 961 | Or. | 1909
Opinion by
1. In the former opinion it was said: “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 non-performance, and is unavailing to the plaintiff until so pleaded.” Longfellow v. Huffman, 49 Or. 486 (90 Pac. 907, 910.) The complaint in the case at bar contains such an allegation, but we do not consider it material, because the promissory note stipulated that it could be paid on or before two years from October 1, 1904. The defendants exercised the right to discharge the note at any time prior to maturity, and it was imma
2. The trial court evidently proceeded on the theory that the contract sued on was entire, and that the plaintiff’s failure to tender the value of the lambs raised in the year 1905 worked a forfeiture of all his rights to this
3. The answer alleged that the contract was entered into for the purpose of further securing the payment of the promissory note, which averment was denied in the reply. It is impossible from an inspection of the writings executed by the parties to determine this issue, and hence it should have been submitted to the jury, in failing to do which an error was committed. The judgment is therefore reversed, and the cause remanded to determine whether or not the agreement was intended by the parties • as security or to evidence a sale, and, if the jury determines it to be the latter, then to find whether or not more than 1,200 lambs were raised by the defendants in the year 1,906, and also to determine whether the value