Shattuck v. Smith

5 Or. 125 | Or. | 1873

By the Court,

Mosher, J.:

In order to determine whether the court was in error in giving or refusing the several instructions asked, it is necessary to interpret the contract or contracts as set up in the pleadings and established by the evidence. The appellants contend that the contract of Harker with Hayden, Smith & Co., and the contract between Harker and the appellants, including the deed from Harker to appellants for the land in the complaint mentioned, are to be taken and construed together as one entire contract. And they maintain that the purchase-price of the land conveyed by Harker to appellants was a payment of so much of the purchase-money agreed to be paid by-him for the interest he was to obtain in the copartnership of Hayden, Smith & Co. The respondent, on the other hand, claims that the land mentioned in the complaint was conveyed to the appellants in exchange for a fourth interest in another- block of ground, saw-mill, machinery, etc., and was a separate and independent contract from that of copartnership. It cannot be maintained that one contract can be predicated upon two separate agreements between two different parties. It is true that if there had been an entire executory contract, and the plaintiff had refused, without legal excuse and against the defendants’ consent, to perform, he could not recover. It is also true that if there had been a novation by which the firm of Hayden, Smith & Co. agreed to receive the conveyance as a contribution towards the payment of Harker’s share in the new firm about to be formed, the plaintiff could not recover. But neither of the cases is presented by the pleadings or evidence. The court below held, as we think, correctly, that they were separate contracts. In this view of the case the instructions given by the court were correct.

The instructions refused had no reference to the facts submitted to the jury under this construction of the contracts. It is not error for a court to refuse to instruct abstract propositions of law, however correct, or to instruct as to a hypothetical case upon which the jury is not called upon to pass.

Judgment affirmed.