Lachmund v. Lope Sing

Mr. Justice Eakin delivered the opinion of the court. 1. The defendants, Lope Sing and Oliver Beers, contracted to raise, on the Beers place, and sell to Horst, 40,000 pounds of contract hops at 12 cents per pound, and they were bound to do so if by careful and husbandman-like labor such a crop could be produced. However, subdivision three of the contract, without modifying subdivision two thereof, as to advances, provides, that, if by careful husbandry contract hops cannot be produced, Horst shall accept the hops in satisfaction of this contract, even though they are not contract hops, at a reduction in price equal to the difference in value between the hops tendered and contract hops. Plaintiffs rely upon subdivision five o.f the. contract as releasing the buyer from liability to make further advances, or to accept the hops if, upon inspection, it appears that contract hops cannot be produced. That subdivision does not, in terms, negative the buyer’s obligation to accept a lower grade than contract hops in satisfaction of the contract, but does [111] provide that, if contract hops cannot be produced, the buyer shall be released from making advances, and the seller shall repay the advances made, and this is repugnant to the provisions of the last part of subdivision three. The general rule is that, where in a contract clauses are repugnant and incompatible, the earlier prevails, if the inconsistency be not so great as to avoid the instrument for uncertainty: 1 Sheppard’s Touchstone, 88; 2 Parsons, Contracts, *513; Daniel v. Veal, 32 Ga. 589; Petty v. Boothe, 19 Ala. 633. This rule is subject to the qualification, however, that the -contract must be construed to effect the intention of the parties as gathered from the entire instrument; and, if there are repugnant clauses, they must be reconciled, if possible. 2. The intent, and not the words, is the essence of every agreement if it can be ascertained therefrom. Henderson v. Mack, 82 Ky. 379. 3. The rule that rejects a repugnant clause of a contract is an expedient to which a court will very reluctantly, in any case, have recourse, and never unless absolutely compelled 'to do so. Bush v. Watkins, 14 Beav. 425. This contract cannot be construed literally, and give effect to every part of it: Subdivision three provides that, in the event the seller — for causes beyond his control —is unable to deliver contract hops, the buyer agrees to accept, at a reduced price, in satisfaction of this agreement, the hops raised. Thus the delivery of low grade hops, resulting from conditions for which the seller is not responsible, will be a compliance with the contract as fully as the delivery of contract hops would have been. But by the latter part of subdivision four it is specified that liquidated damages may be recovered by the buyer should the seller make default, and 40,000 pounds of contract hops be not delivered. The only reasonable interpretation of this clause is that it applies to a violation of subdivision one, and the first part of [112] subdivision three, of the contract, which provides that, for the neglect or failure of "the seller to do anything necessary to produce contract hops, it shall be optional yvith the buyer to accept inferior hops at a reduced price; and such neglect or failure of the seller is the default referred to in subdivision four, and it can have no application to the latter part of subdivision three, which provides that a delivery of inferior hops, under the conditions mentioned, shall be a satisfaction of the contract. The same construction must be put upon subdivision five, or it must be 'eliminated entirely. If, upon an inspection of the hopyard, as provided in subdivision five, it is found to be in such a condition that contract hops cannot be produced, nevertheless, if such condition is not the result of neglect or failure of the seller to do something necessary for the production of contract hops, the buyer will not be justified in refusing to make advances, as he is still under obligation to accept, in satisfaction of the contract, inferior hops; and, in such a case, the seller is not in default, and subdivision five must be construed as dependent upon the default of the seller. This construction will give effect to every part of the contract, and is in accordance with the clear intention of the parties, as gathered from the whole instrument. 4'. There is no suggestion, in either the pleadings or the evidence, that defendants were in default in anything necessary to be done on their part to produce contract hops, and the evidence of plaintiffs’ witnesses shows that the grade of the hops produced was at least medium to prime, or prime, and — considered most favorably to plaintiffs — if the hops were less than contract hops, they were so for causes “beyond the seller’s control,” and were such as the buyer agreed to accept at a reduced price. The buyer could not therefore refuse to be further bound by the terms of the contract, or require the seller to refund the advances theretofore made, unless the seller had refused to deliver the hops or agree with [113] the buyer upon a price at which they were to be delivered. It is unnecessary for this court to determine whether the hops produced were contract hops. By the last part of subdivision three of the contract the conditions of the liability of defendants to repay the advances made— if the hops produced are a lower grade than contract hops, without the fault of defendants — is that “the seller and buyer shall fail to agree upon a price at which the inferior hops shall be accepted in fulfillment of this contract.” The mortgage clause of the contract (subdivision six) is available to plaintiffs only for the liquidated damages provided for in subdivision four, namely, when by reason of neglect or fault of the seller the hops are of inferior quality, or, if they are contract hops, the seller refuses to deliver them. A situation may arise, and evidently did arise, by reason of which contract hops will not be called for by the contract, namely, in the event inferior hops are produced without fault of the seller, and under such condition the seller will not be in default in the delivery of contract hops to be “delivered in pursuance of this agreement.” The contract relates only to the hops raised on the Beers place, and not that the seller shall deliver contract hops at all events. It is only when “by reason of such default * * 40,000 pounde of contract hops be not delivered” that there shall be a liability, for example, if, through no lack of diligence or fault of defendants, hops of marketable quality are not raised, the seller would not be liable for damages under this clause of the contract. And it is not necessary now to determine what the effect of such a situation might have upon the right of plaintiffs to recover advances made,, as that issue does not arise. 5. It appears by the allegations of the complaint that, when the buyer concluded that contract hops could not be grown, picked and delivered from the yard, he refused to make any further advances, and refused to be bound further by the contract. If the seller was not in default [114] at that time, the buyer’s conduct was an abandonment of the contract, and he cannot'recover the advances made thereon. Neis v. O’Brien, 12 Wash. 358 (41 Pac. 59: 50 Am. St. Rep. 894) is in point upon this question, being a suit to recover advances made on a hop contract, in which it is stated: “It was not the fault of the respondent that this contract was not fulfilled, but wholly the fault of appellant. The respondent offered to perform all that the contract required of him, but the appellant, having made part performance, stopped short, and refused to proceed to the completion of the contract. * * To permit the appellant to recover under the circumstances of this case, we think, would be to establish a dangerous precedent.” To the same effect are Witherow v. Witherow, 16 Ohio 238; Hansborough v. Peck, 5 Wall. 497 (18 L. Ed. 520) ; Walter v. Reed, 34 Neb. 544 (52 N. W. 682). The decree of the lower court. is affirmed. Affirmed.