Neis v. Whitaker, 84 P. 699

Neis v. Whitaker

84 P. 699 | Or. | 1906

Mr. Justice Moore

delivered the opinion of the court.

1. It is contended by plaintiff’s counsel that the allegations of new matter in the answer, as hereinbefore quoted, constitute an averment of a rescission by implication, limited in its application to the year 1903, and that, as the original contract was severable in respect to each of the five years of the specified term, the annulment alleged left such contract in force and effect in 1904, when the cause of action stated in the complaint accrued, and, this being so, the court erred in admitting testimony over plaintiff’s objection and exception. .An examination of the language used in the affirmative defense, to which attention is called, will show an intent to plead an agreement of the parties in the following particulars, to wit: (1) That the contract of November 21, 1901, “should be annulled, rescinded, and held for naught”; and (2) that a new and different contract “should cover all and singular of the subject-matter of the hops to be produced.” If the answer had stated that the original contract had been rescinded by the making of a new agreement, such supposed abrogation would probably be by implication only, for the use of the preposition “by,” indicating that the revocation was secured in a particular manner, in the case assumed, would show (hat the annulment resulted from the conduct of the parties, and not in pursuance of their stipulation to that effect. The agreement of February, 1903, as alleged in the answer, states a meeting of the minds of the parties in respect to the cancellation of the contract of November 21, 1901, and to the making *521of a new agreement for future production and delivery of hops. The use of the word “and,” connecting the independent sentences quoted, manifests an intention to plead the separate propositions embodied in the agreement of February, 1903, thus showing that the language used in the first affirmative defense constitutes an averment of an •express rescission. The annulling of the contract having been thus distinctly alleged, the averment thereof constituted a plea in bar of plaintiff’s recovery, and, this being so, no necessity existed for stating in the answer the making •of a “new and different contract” in respect to the growth, sale or delivery of hops in the year 1903. The terms of such agreement and the performance thereof by the parties, as alleged in the answer, were probably averred to explain the defendants’ delivery to Faber & Neis of the hops grown in the year 1903, notwithstanding the cancellation of the original contract.

2. No motion was made to strike out the averments of the making of a new contract relating to the future production, sale or delivery of hops, but plaintiff specifically •denied such allegations in the reply, and testimony having been admitted, over his objection and exception, tending to show what the defendants did pursuant to the terms •of the new agreement, it remains to be seen whether or not such testimony should have been excluded, notwithstanding the issue on that subject. If irrelevant or re■dundant matter be inserted in a pleading, it maj’- be stricken out on motion of the adverse party: B. & C. ■Comp. § 86. “Unnecessary matter,” says Mr. Bliss, in his work on Code Pleading (3 ed.), § 215, “is called ‘redundant’ when there is an effort to reform the pleadings by striking it out. It is called ‘surplusage’ when there has been no such effort, in which case it should be disregarded by the court, .as if the pleading did not contain it.” See, also, Boone, Code Plead. § 249. The editors of the Ency*522clopedia of Pleading and Practice (volume 21, p. 256), in speaking of surplusage, say: “In most code states irrelevant or redundant matter goes for nothing at the trial,, whether controverted or disregarded in pleading.” In Specht v. Spangenberg, 70 Iowa, 488 (30 N. W. 875), Mr. Chief Justice Adams, speaking upon this subject, says: “An averment irrelevant when made does not become relevant by being denied.” If the parties to this action agreed to annul the original contract as alleged in the answer, such fact, if established, constituted a bar to> plaintiff’s recovery, and hence the making of a new agreement relating to the hops to he produced in 1903 had no bearing on the question in dispute, did not affect the subject-matter of the controversy, and could in no way assist the decision of the court, but probably tended to confuse and prejudice the jury.- The issue being immaterial, the testimony so objected to should have been rejected (20 Enc. Pl. & Pr. 108), unless it was offered to repel plaintiff’s contention that the defendants’ delivery of the hops-grown in 1903 evidenced their recognition of the validity and continuity of the original contract. It does not appear whether or not this testimony was offered for a purpose that would render it admissible, hut in view of a new trial, to which we think the plaintiff is entitled on another feature of the ease, the discussion of this question has-been deemed advisable.

3. The court, referring to the defense interposed, in charging the jury, said :

“This answer is in substance that the parties made a new agreement whereby they annulled and set aside this alleged contract entered into in 1901, and that this agreement was substituted instead of that, and that the other was to be, by the terms of this agreement, no longer in force.”

*523In alluding to the original contract, the jury were charged as follows:

“If you find from the evidence * * that the parties * * agreed * * that the old contract was to be no longer of any effect, that the terms were changed, I instruct you that it was within the power of the parties-to change that contract, and, if they did, then plaintiff could not bring an action upon the contract of 1901.”

The court, adverting to the agreement of February, 1903, also gave the following instruction :

“But if the parties agreed upon a different contract and it was understood that it was to be in lieu of, and to annul, the old one, and they executed the contract by delivery of the hops for that year, and plaintiff received the hops with that understanding, that would be a complete defense to this cause of action.” .

Exceptions were taken by plaintiff’s counsel to the language thus used, on the ground that though Faber & Neis in 1903 donated to the defendants two cents a pound for their hops more than specified therefor, and also gave them, in addition thereto, the sum-of $50, such benefactions did not even modify the original contract.

An examination of the parts of the charge hereinbefore quoted will show that the court seems to place the bar to plaintiff’s recovery upon an implied rescission of the contract of November 21, 1901, by the making of a new agreement, whereby the terms of the original contract were changed, which agreement was adopted in lieu of and to annul the old contract. In the brief of defendants’ counsel the following statement is made: “There is nothing in this cause of any implied rescission of the contract of November 21, 1901, as contended by the appellants.” This assertion seems to be warranted by an examination of certain parts of the court’s charge, which we do not deem necessary to set out, wherein the jury were told, in effect, that the rescission was secured by an express stipulation *524of the parties ; the court having told the jury, in the parts of the charge hereinbefore quoted, that, if they found that the parties had made a new agreement in lieu of and to annul the old contract, the plaintiff could not recover in this action. It will thus be observed that the rescission is treated by the court as having been secured by express stipulation of the parties to that effect, and also brought • about by implication, resulting from the making of a new agreement, when the answer directly states that the annulling of the contract was based on the former ground, thus showing that the instructions are inconsistent. The giving of inconsistent and conflicting instructions is erroneous, when it is impossible to say which rule the jury adopted in rendering their verdict, and such error is not cured though the law may have been correctly stated in another part of the charge: Morrison v. McAtee, 23 Or. 530 (32 Pac. 400).

For the error committed in the giving of such instructions, the judgment is reversed, and a new trial ordered.

REVERSED.