141 P. 1020 | Or. | 1914
delivered the opinion of the court.
The order, as stated, was introduced in evidence and identified. The letter of the plaintiff to the defendant accepting the order was also proven and read in evi
“Elgin, Oregon, June 20, 1910.
“Outcault Advertising Co., Chicago, 111.
“Gentlemen: I have been considering the advertising matter of your company and think it good, but I cannot arrange with my home paper to give me satisfactory advertising space within reasonable terms, but they want too much for the space in the paper, making the total cost per month from $16.00 to $20.00 per month. And my business in this small town will not permit of such extensive advertising. So do not forward this series to me until I feel in a better condition to handle it. Bespectfully,
“ [Signed] H. W. Buell.
“Lock Box 81, Elgin, Oregon.
“P. S. Please favor me this time and I may be in a position to take up some of your goods later. There is a party -here who wants to buy me out and I would rather wait.
“ [Signed] H. ~W. Buell.”
It appears in testimony without dispute that, after declining to accept this letter as a countermand of the order, the plaintiff shipped to the defendant the remainder of the advertising matter engaged, all of which had been manufactured ready for delivery before the plaintiff had received from the defendant the letter of June 20, 1910. Other correspondence was put in as evidence which did not change the situation already outlined.
Eeduced to its lowest terms, the case presented is one where the plaintiff has performed the contract on its part and the defendant has paid only part of the contract price, leaving him liable for the installments due and unpaid at the commencement of the action.
The judgment must be reversed for further proceedings. Beversed.