230 P. 355 | Or. | 1924
The issues having been tried and submitted to the jury, if there is any material evidence supporting the verdict this court is without authority to set aside the verdict unless material error was committed in the admission of testimony,
The counterclaim of the defendant was not moved against or demurred to. It will be construed most favorably to the defendant. So construed, it clearly states a good counterclaim. There was sufficient evidence of the counterclaim to carry the case to the jury.
The principal contention of the plaintiff is that the contract relied upon by the parties was in writing. Plaintiff’s contention is that the contract was'made by the following telegrams:
Smith to Mayer, December 3, 1919:
“Will you book our order for five hundred thousand El Wadora, thirteen top loose banded at thirty-nine fifty a thousand and ship one hundred thousand a month. This would help us to start the cigar again and price we can make to retailer on this packing will help. Wire.”
Marshall to Smith, December 16, 1919:
“After a hard battle with Mayer, succeeded in getting’ you allowance seventy-five cents thousand freight and I will give you fifty cents thousand on Wadoras. It looks as though all factories will make further advances. Sincerely advise you to reinstate Wadora order to protect yourself. You will later on find out my tip a good one.”
Smith to Marshall, December 17, 1919:
“Replying to your wire sixteenth. You may book our order for five hundred thousand El Wadora foil to be shipped one hundred thousand a month after balance of original order is shipped. With this protection and price we will try our best to make El Wadora sell again here.”
It is earnestly contended by the plaintiff, however, that the defendant having sold a part of the cigars, and having paid for all of them prior to discovering that the cigars were not packed or branded as described in the contract, defendant’s only remedy
This contention presents to the court the liability of the seller and buyer in mercantile transactions. These transactions have been a fruitful source of litigation, and there is apparently at least a great conflict and confusion of the authorities.
The principles involved in this litigation are completely and thoroughly discussed in an extensive note in the case of Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620 (101 Pac. 233, 35 L. R. A. (N. S.) 258). See, also, 2 Mechem on Sales, 1193, § 1380; Waehber v. Talbot, 167 N. Y. 48 (60 N. E. 288, 82 Am. St. Rep. 712); Pierson v. Crooks, 115 N. Y. 539 (22 N. E. 349, 12 Am. St. Rep. 831); Lewiston Milling Co. v. Cardiff, 266 Fed. 753, 764; Reed v. Randall, 29 N. Y. 358 (86 Am. Dec. 305, 308, and note, p. 314); Hills v. McDonald, 17 Wis. 100; Meyer v. Everett Pulp & Paper Co., 193 Fed. 857 (113 C. C. A. 643) ; Neal, Clark & Neal Co. v. Tarby, 99 Misc. Rep. 380 (163 N. Y. Supp. 675); Harrison v. Scott, 203 N. Y. 369 (96 N. E. 755, 38 L. R. A. (N. S.) 1036, and note, pp. 1037-1039; McClure v. Central Trust Co. 165 N. Y. 108 (68 N. E. 777, 53 L. R. A. 153, cited in note in 35 L. R. A. (N. S.) 266); Morse v. Union Stock Yard Co., 21 Or. 289 (28 Pac. 2, 14 L. R. A. 157); Lens v. Blake, 44 Or. 569, 574 (76 Pac. 356); Austin Co. v. Tillman Co., 104 Or. 541, 580 (209 Pac. 131, 30 A. L. R. 293).
In 1919 the legislature of this state adopted the Uniform Sales Act, which is controlling in this state
It must be conceded that the sale of these cigars was made by description.
Section 8177, Or. L., is as follows:
“Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description, and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.”
Section 8230, Or. L., provides as follows:
“(1) Where there is a breach of warranty by the seller, the buyer may, at his election: * * (d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price of any part thereof which has been paid.” * *
‘ ‘ (4) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to re-pay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for re-payment of the price.
“(5) Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the re-payment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid seller by section 8215 (2).”
The cigars purchased by the defendant from the plaintiff were to be delivered in installments. In that regard, the instant case is distinguished from the case of Meyer v. Everett Pulp & Paper Co., 193 Fed. 857 (113 C. C. A. 643).
Section 8208, subdivision 2, Or. L., reads as follows :
“ Where there is a contract to sell goods to be delivered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in respect to one or more installments, or the buyer neglects or refuses to take delivery 'of or pay for one or more installments, it depends in each ease on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract* or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken.”
Under the pleadings and circumstances of the instant case, it was for the jury to determine whether or not the defendant was entitled to rescind the contract, as modified by the oral agreement between the parties, and return the unsold portion of the cigars.
The sale of a part of the cigars by the defendant was for the benefit of the plaintiff. The defendant did not refuse to pay for the cigars so sold, nor did he ask any damage on account of any loss he might have sustained thereby. In addition to eases and authorities cited above see: 23 R. C. L. 1436, 1439, §§ 259, 263; 24 R. C. L. 294, § 577; Bagnail v. Frank Fehr Brewing Co., 203 Mo. App. 635 (221 S. W. 793):
The other errors assigned on appeal relate to certain instructions requested by the plaintiff and refused to be given by the court. Suffice it to say, that instructions numbered 5 and 5y2 were not within the pleadings. This alone is sufficient reason for the court’s refusal to give them. In addition to that, we mig'ht truthfully say that the requested instructions in effect required the court to state, that if the plaintiff offered to make certain changes and substitutions, the defendant was bound to accept them. This would be tantamount to compelling the defendant to submit to a modification of the contract without his consent. The other instructions requested by the plaintiff were sufficiently covered by the instructions of the court. For these reasons the judgment of the Circuit Court is affirmed. Affirmed.
Bean, Burnett and Brown, JJ., concur.