107 P. 969 | Or. | 1910
Dissenting Opinion
dissenting.
In Worthington v. Beeman, 91 Fed. 232, 33 C. C. A. 475, an option was given in the following language: “This agreement to continue to January 1, 1892, it being understood that you are to push the sale of these goods, and do all you can to further our interests, and, should you succeed in doing such a business as we may reasonably expect, then this agreement shall be renewed for two years more” — and it was held that this clause was not so indefinite or uncertain in its terms as to preclude an
Although not parallel as to the facts, the case of Livesley v. Johnston, 45 Or. 30, 43 (76 Pac. 13, 946: 65 L. R. A. 783: 106 Am. St. Rep. 647), is in point, so far as concerns the legal principles involved; and the rule there enunciated goes to a greater length than is insisted upon by appellant. In that case it was contended that the stipulation involved, to the effect that if the quality of the commodity purchased-should be inferior to that expected, or not in condition as .agreed upon, “according to the judgment” of the plaintiff therein or its agent, the plaintiff was not bound to accept it, thereby leaving the determination “subject to their mere will or caprice, thus nullifying their promise to purchase, and rendering it of no appreciable obligatory or binding effect upon them.” But notwithstanding this peculiar, and apparently arbi
“In consideration of a compliance by the Olympia Bottling Works with the terms of the foregoing instrument,*100 said company shall have the privilege of continuing the agency for five years after March 1, 1902, during which time all the terms of the foregoing contract shall remain m full force and effect, subject only to a modification, if it shall be a modification, that the prices to.be paid for beer shall be the prices ruling at the close of the first, and beginning of the second, five-year period.”
In this connection it is argued that, under any circumstances, it was incumbent upon the optionee to inform the optionor of its intent to insist upon the ruling price. Since this was stated in the option clause, of which the optionor’s knowledge was equal to that of the optionee, it would seem that such notice was unnecessary; for the law does not require vain or useless things, and as the optionor notified the optionee that it would not, under any circumstances, permit the agency to continue, plaintiff was thereby relieved from .any further duty in this respect. See Livesley v. Krebs Hop Co., 107 Pac. 460, and authorities there collated on this feature.
For the errors complained of, the judgment is reversed, and a new trial ordered. Reversed.
Dissenting Opinion
dissenting, holds that the clause in the agreement constituting the option in plaintiff’s favor for the renewal does not fix the prices at which
“The parties must make their own agreement, and not leave it for the court to construct one for them.” 9 Cyc. 248.
If by the acceptance of an option the obligations of both parties do not become fixed, and the remedies mutual, then there is no liability upon the part of either. 21 Am. & Eng. Enc. Law (2 ed.), 923-929. Mutuality of the contract after acceptance is essential to its validity. It is. said in Rude v. Levy, 43 Colo. 482-483 (96 Pac. 560, 561: 127 Am. St. Rep. 123):
“It is only when the vendee has made his election and complied, or, in good faith attempted to comply, with the terms of an option, and it has ceased to be an option, and has ripened into a mutually binding and mutually enforceable contract, that it becomes enforceable in equity by the vendee.”
Lead Opinion
delivered the opinion of the court.