Wright v. Ramp

Mr. Chief Justice Bean, after stating the facts, delivered the opinion of the court. The record contains several assignments of error, based on the admission and rejection of testimony, which we do not deem it necessary to consider at this time, but shall confine our examination to the sufficiency of the findings of fact. Under 288 the pleadings, two questions of fact were presented: (1) Was there such a delay in the performance of the contract by the plaintiff as to justify the defendant in treating it as rescinded, and (2) did the monument that the plaintiff shipped to Salem fulfill the terms and conditions of his contract? The first question is, perhaps, concluded by the findings, since the court found that it was not possible to deliver and set up the monument prior to the time the same was received at Salem. But there is no finding as to whether the monument was of the kind and quality called for by the contract. In a case of this kind, it is the duty of the vendor to deliver property corresponding with his contract. The vendee is not bound to accept a defective article and rely upon a claim for damages for indemnity, nor he is he bound to receive and pay for a thing he did not contract for or agree to accept. Mr. Mechem, in his recent work on Sales, after stating that the article delivered or demanded under the contract must be the article which the parties respectively agreed to buy and sell, and that, if they contracted in respect of a definite, ascertained, and existing article, nothing but that identical article will satisfy the contract, says: “Though the article is not definitely ascertained, or is not in existence at the time of the contract, if the undertaking is that the thing sold,, when ascertained or in existence, shall be of a certain kind, or possess certain qualities or characteristics, then it is equally obvious that nothing but the article of the kind or with the qualities or characteristics agreed upon can satisfy the contract; and, again, the seller cannot be required to deliver something else, nor can the buyer be required to accept and pay for a thing different from that which he contracted to receive”: Mechem, Sales, § 1155. See, also, Mechem, Sales, § 1372; Reed v. Randall, 29 N. Y. 358 (86 Am. Dec. 305); Marble Co. v. Dryden, 90 Iowa, 37 (57 N. W. 637, 48 Am. St. Rep. 417); Header v. Cornell, 58 N. J. Law, 375 (33 Atl. 960). If, therefore, the contract in question is to be treated as a contract of sale, the plaintiff was bound to tender in performance thereof a monument that corresponded to the one specified in the contract, 289 and the defendant was not obliged to receive or accept a defective one. If the monument tendered did not correspond to the contract, she could refuse to accept it and rescind the contract: Mechem, Sales, § 1802; Rubin v. Sturtevant, 80 Fed. 930 (26 C. C. A. 259). And the same rule will apply if the agreement is to be construed as a contract for work or skill and the materials upon which it is bestowed: Graver v. Horn-burg, 26 Kan. 94; Moody v. Brown, 56 Am. Dec. 640, and note. The character and quality of the monument offered by the plaintiff in performance of his contract was, therefore, a material issue in the case, and should have been directly passed upon by the trial court: Tatum v. Massie, 29 Or. 140 (44 Pac. 494); Moody v. Richards, 29 Or. 282 (45 Pac. 777); Daly v. Larsen, 29 Or. 535 (46 Pac. 143); Breding v. Williams, 33 Or. 391 (54 Pac. 206). There is no finding that the monument was of the kind called for by the contract, or that it ivas such a one as the defendant was bound to receive and accept, and, until that question is determined in favor of the plaintiff, he is not entitled to recover as for a breach of the contract. The judgment is reversed, and a new trial ordered. Reversed.