67 P. 742 | Or. | 1902
delivered the opinion.
This action to recover money was commenced July 1, 1899. The complaint contains three separate causes of action. In the second it is alleged that on or about the seventh of March, 1899, the plaintiff sold and delivered to the defendants 99,112 feet of saw logs at the agreed price of $2.50 per M; that they promised and agreed to make the first payment therefor as soon as 10,000 feet of such logs should be sawed into lumber and sold, and installments thereafter as fast and as soon as other lots of 10,000 feet should be sold by them; that they had sawed and sold more than 10,000 feet, and a reasonable time had elapsed in which they could have sawed the remainder; that no payments have been made on the purchase price of such logs, except the sum of seventy cents; and that there is now due, owing, and payable to the plaintiff on account thereof the sum of $247.08. The answer admits the sale and delivery of the logs, but denies that they were to be paid for'in
So far as the questions presented on this appeal are concerned, the two issues made by the pleadings are (1) whether the purchase price of the logs delivered by the plaintiff to the defendants in March, 1899, was due at the commencement of this action; and (2) what amount of damages, if any, the defendants sustained by the breach of the contract to deliver 100,000 feet of logs before the first day of March, 1899. The answer admits the delivery of the logs in March, 1899, as alleged in the complaint, but avers that they were not to be paid for until the first of the following January, some months after this suit was begun; thus presenting an issue of fact which does not seem to have been passed upon by the referee. As a counterclaim or offset, the answer also avers, in substance, that, as a part of the contract under which the logs mentioned in the complaint were sold and delivered, the plaintiff agreed to deliver to the defendants at their mill on or before the first of March, 1898, 100,000 feet of logs, which he failed to do, whereby they were damaged in the sum of $300. The referee practically finds that the logs were never delivered as agreed upon, but seems to have deemed it unnecessary to find upon the question of damages, because performance of the contract was waived, or because such performance was impossible, for want of sufficient water to float the logs to the mill. But these matters are not pleaded as a defense to the counterclaim, nor as an excuse for a failure to perform the contract. They were
The judgment will therefore be reversed, and the cause remanded for a new trial. Reversed.