Wright v. Morton

*568 ROSSMAN, J. It is unnecessary to cite authorities in support of the statement that the agreement of the parties wherein the defendants agreed to purchase the plaintiff’s wheat was protected by the parol evidence rule. It is this written instrument .upon which the plaintiff founds this action. This document describes the article sold by using this language: “consisting of 3,581 bushels and 31 pounds of club wheat as shown by said first party’s warehouse receipt.” This receipt also stated the quantity as 3,581 bushels and 31 pounds. The warehouse receipts were likewise subject to the parol evidence rule: Hirsch v. Salem Mills Co., 40 Or. 601 (67 Pac. 949, 68 Pac. 733); 4 Jones on Ev. (2 ed.), p. 2999. The defendants do not dispute the foregoing application of the parol evidence rule to the documents introduced in evidence. Their principal contention is that the agreement should be construed as an undertaking upon the part of the defendants to purchase some grain, the exact quantity of which had not been ascertained. They relied particularly upon the fact that the agreement was not to pay a definite sum, but to pay at the rate of $1.50 per bushel. We do not believe that the agreement is susceptible of the construction that the defendants were purchasing an unascertained amount of wheat. The contract specifies the exact amount; next it refers to a warehouse receipt, and instruments of the latter class generally set forth quantity with considerable precision. It is also worthy of observation that each time wheat was withdrawn, a new warehouse receipt was issued specifying the precise quantity left in the warehouse. It would seem strange that this routine would be pursued if its final result was to mean nothing. Further it is quite unlikely that one who *569 had parted with the possession of his grain and placed it in the custody of a miller would be content to depart without ascertaining the quantity thus deposited. To the seller an agreement as to quantity would be just as important as an agreement as to the price. The transaction would be as likely to result without profit to the seller if quantity was subject to later review, as if the price could be later revised. In view of the fact that the wheat was deposited in bins whose dimensions were known, or at least ascertainable, it is difficult to understand why the parties would not fix the quantity then and there. But the all-important fact is that they did fix the quantity, and set it forth as 3,581 bushels and 31 pounds, and wrote the same in their formal agreement and also in a warehouse receipt. We believe that the defendants are bound by the words used. Having thus construed the contract it follows that the defendants were bound to pay $1.50 per bushel for 3,581 bushels 31 pounds. The defendants argue that the court erred when it entered a final judgment against them; they contend that the court should have retained jurisdiction, and should have proceeded to try the allegations of the answer as a cross-bill for the reformation of the contract. This portion of the answer is entitled: “further and separate answer and defense herein, and as their counter claim herein * * ” It prays for no equitable relief; it demands that the plaintiff take nothing, and that the defendants have judgment against the plaintiff for $159.17. It is true that a pleading need not be labeled, and a prayer for the wrong relief following a pleading which sets forth facts entitling the pleader to some relief does not operate to deny the proper relief, but the title and *570 the prayer serve a useful purpose if they indicate the pleader’s conception of the use to which he expects to put his pleading. In this case the title, the prayer and the defendants course at the trial indicated that the defendant’s were not endeavoring to reform an instrument, but were relying upon a theory of payment. For instance, they proceeded to trial with a jury; they did not endeavor to take answers over the objections under the equity rule and they did not endeavor to amend the pleadings when the court directed the verdict. At no stage of the proceedings, in the lower court did they seek to have the answer construed as a plea for reformation of the instrument. That relief is asked for the first time in this court upon appeal. We cannot give it ourselves because the answers were not taken over objection. With this state of the record it would seem unjust to the plaintiff to remand the case to the court below to proceed as a suit for the reformation of the instrument. Litigation is slow enough without encouraging a further delay by permitting a litigant to experiment first with the one theory and when that proves unavailing try out another on appeal. Our code of pleading permits a defendant to present as many defenses as he may possess, but he must set them forth all in the one answer, and not offer first one and have a trial upon it, and then file another. It follows from the foregoing that the judgment of the lower court is affirmed. Affirmed. Rand, O. J., dissents, and Coshow and McBride, JJ., concur.