Schucking v. Young

Mr. Justice McBride delivered the opinion of the court. 1. Plaintiff and defendant agree that the contract, so far as the hieroglyphic, #, is concerned, is in just the same condition as it was when it was executed, and that the intent of the writing was to evidence the sale by defendant and the purchase by plaintiff of 25,000 pounds of hops. The contract is declared upon according to its legal effect, and the hieroglyphic was simply the conventional method adopted by the parties to signify pounds. So far as they were concerned, it spelled “pounds,” just as effectually as though the word had been written in full in capital letters. Nobody can read the agreement and construe it any other way, and any testimony upon the subject was useless, except in so far as it tended to show the interpretation put upon it by the parties themselves. "Webster defines the character, #, as signifying number. Taking this definition, we find that the unit of price is 14 cents, the unit of goods to which that price applies is a pound of hops, and the number of such units is 25,000. It is so plain that the wayfaring man, though a judge or a juryman, need not err therein. A reference to standard works on bookkeeping indicates that this hieroglyphic when placed before a figure imports “number,” and when placed after a figure invariably signifies “pounds.” Thus on page 121 of Sadler and — 492 — Rowe’s “Business Bookkeeping and Practice,” we find many entries like the following: “Wm. E. Brady, #94 Harlem Av. 20# G. sugar at 5c.; 5# Butter at 30c.; 8# O. sugar at 5c.,” etc. The symbol is the accepted and business-like substitute for the word “pounds” when written in the above connection and following a numeral. 2. Another objection goes to the evidence of plaintiff’s ability and readiness to perform and to the sufficiency of his offer to do so. The first duty of the seller was to deliver the hops at some point on cars in Oregon, he having the option as to the place of delivery, but before such delivery would be complete, plaintiff was required to inspect and receive them. Until so inspected and received, defendant was entitled to the possession of them, and when they had been inspected, received and delivered, plaintiff was bound to pay for them. The delivery and payment were to be concurrent acts, but the inspection and approval were to precede delivery and payment. Plaintiff had a right to inspect, and as the hops were in defendant’s custody and no time or place was designated for the inspection, it became defendant’s duty, upon demand of plaintiff, to permit such inspection and to designate a time and place where such inspection could be made. This plaintiff’s evidence, which is conclusive upon this court after verdict, shows was refused by defendant, and thereby the contract was broken. It is shown that plaintiff made a written demand on defendant that he be permitted to inspect and receive the hops mentioned in the contract, such inspection and receiving to be at any convenient place which defendant might designate, and that defendant notify plaintiff of the time and place where such inspection could be had and the hops received; and in the same communication — 493 — he notified defendant that upon such inspection he would pay him the full purchase price of the hops, amounting to $3,500. Defendant wholly ignored this demand, and this, under the circumstances, amounted to a refusal. 3. It further appears from plaintiff’s testimony that upon the 8th of November, 1913, plaintiff said to defendant: “Eph, it is getting pretty late. Can you tell me when you are going to be ready to deliver so that I will be there?” and that defendant answered: “I am not going to deliver. You don’t think that contract of yours is any good?” — to which plaintiff replied, “I most certainly do.” Whereupon defendant answered, “Well it is not.” Accepting this testimony as true, as we must after verdict, plaintiff has shown a compliance with every condition of his contract so far as defendant’s conduct has permitted him to do so, and has disclosed a good right to recover unless he has failed to show his ability to have paid for the hops had defendant complied with his part of the contract; it being the settled law of this state that a declaration by one party to a contract made prior to the time fixed for the performance that he will not comply with such contract, if not withdrawn, may dispense with or excuse an offer to perform by the other party before bringing the action, although it does not ordinarily excuse ability to perform: Longfellow v. Huffman, 49 Or. 486 (90 Pac. 907); Krebs Hop Co. v. Livesley, 55 Or. 227 (104 Pac. 3). 4. This brings us to the question whether there was evidence sufficient to go to the jury tending to show that plaintiff if his offer to inspect and receive the hops had been accepted, would have been able to pay the $3,500 required by his contract. The testimony indicates that he did not, at the time of the demand — 494 — upon defendant, have that amount of money in the bank or in his possession, but it also appears that if defendant had accepted his offer Mr. Livesley had agreed to take 20,000 pounds of the hops and to advance the money to pay for them, which would have been sufficient to have enabled plaintiff to pay defendant. It is also in evidence that hops were then bringing from 22 to 24 cents a pound, and that plaintiff could easily have raised the money upon a contract which called for a payment at the rate of only 14 cents a pound. The question of his ability to have paid the purchase price was one of fact for the jury, and we think upon the whole testimony there is no doubt that, if the defendant had been willing to comply with his part of the agreement, his money would have been ready.. That this is sufficient is, we think, shown by Ladd & Tilton v. Mason, 10 Or. 308; Catlin v. Jones, 52 Or. 337 (97 Pac. 546); James Higgins Co. v. Torvick, 55 Or. 274 (106 Pac. 22). 5. We will now consider seriatim the points urged in defendant’s brief. The first point relates to the failure of plaintiff to prove compliance with Chapter 154, Laws of 1913, relating to firm names, etc. The complaint alleged full compliance with the act, and this allegation was expressly admitted in the answer. Notwithstanding this admission, defendant now insists that under the provisions of Section 5 of the act referred to plaintiff should have introduced evidence to sustain the allegation; said section being as follows: “No person or persons carrying on, conducting or transacting business as aforesaid, or having any interest therein, .shall, hereafter be entitled to maintain any suit or action in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in Section 1, and fail — 495 — ure to file such certificate shall be prima facie evidence of fraud in securing credit.” We do not think that it was the intention of the legislature to alter the rules of evidence to such an extent as to require a party to introduce evidence of a fact already admitted by his adversary. While admissions in the pleadings are generally spoken of as dispensing with evidence of the facts so admitted, they are really conclusive evidence of such facts: 1 R. C. L. 469. In Beamish v. Noon, 76 Or. 415 (149 Pac. 522), we held that the objection that the complaint failed to allege that the certificate required by the act had been filed was waived by a failure to demur or plead in abatement, and that decision is conclusive here. Points 2, 3, 4, 6, 8 and 9 are already covered by our preceding discussion and need not be further considered. 6. By point 5 it is urged the agreement introduced by plaintiff is void for uncertainty and repugnance and does not prove the allegation of B. O. Schucking as buyer against E. M. Young as seller. By admitting the first paragraph, it is conceded by defendant that plaintiff was doing business as Schucking & Co., in effect that Schucking & Co. was in fact B. O. Schueking. It is alleged in paragraph 2 that the contract was entered into with B. O. Schucking & Co., which taken in connection with the first allegation is substantially an allegation that it was entered into with plaintiff. There is no such variance between the pleadings and proof as could possibly have misled defendant to his prejudice, and this is what a variance must do to enable a party to take advantage of it: Section 97, L. O. L. 7. Point 6 relates to alterations in the written agreement. It is claimed that the alterations and erasures — 496 — were not explained before tbe agreement was received in evidence. This is evidently a mistake. Upon page 3 of tbe transcript of evidence we find, after plaintiff had testified respecting the making and signing of the document, his attention was called to the interlineations and erasures, whereupon he testified that they were made before the agreement was signed. Counsel then proceeded to interrogate him as to the meaning of the sign, #, following the figures, “25,000,” when counsel for defendant interposed an objection to this line of examination, which after argument was overruled by the court. Thereafter the examination was continued in reference to the custom of hop buyers in the use of this hieroglyphic (which testimony we hold was immaterial, but harmless), and counsel for plaintiff offered the agreement in evidence. 8. Before it was admitted counsel for defendant obtained leave to cross-examine further, and handed plaintiff a duplicate in which the interlineations did not appear. Plaintiff then testified, in substance, that the two were written at the same time and with the same impression of the pencil, there being a carbon paper between the sheets of paper, and that both were signed at once, the pencil making an impression on the second sheet. In answer to an interrogatory by his counsel he then made the following explanation: “A. I stated — when you asked me, I said that all those interlineations and erasures had been made before the contract had been signed. That was true, with one exception. You will notice in the duplicate copy the word ‘prime’ shows. After it was written and signed Mr. Young objected to the word ‘prime.’ He said he wouldn’t specify or hold himself to any one particular quality, but he would deliver a merchantable hop, good average hop, and so, thinking Mr. Young couldn’t attempt to deliver anything but what was a merchantable hop — ■ — 497 — “By Mr. Carson: Just a minute— “By Mr. McNary: Just tell what happened. “A. So, at his suggestion and his desire I crossed out the word ‘prime’ on mine. This was after the contract had been signed. “Q. Was that the only change? “A. That was the only change; yes, sir.” This testimony was technically sufficient to justify the admission of the document. 9. It is true that after it had been admitted and during his examination on rebuttal he made a correction by stating that the figures, “1913,” following the erasure of the word “prime” were written at the same time that the word “prime” was erased, but this correction does not alter the fact that when the document was admitted there was before the court evidence to justify the ruling admitting it. The testimony given upon rebuttal would have had the same effect had it been given upon the direct case, so that its introduction did not alter the status of the document in any respect. Tested by the views above expressed we are of opinion that there was a fair trial in the court below, that the instructions given fully and fairly stated the law, and that the record discloses no reversible error. The judgment is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Harris concur.